text:
    Frank C. Carbrey, Plaintiff-Appellee, v. Ellen M. Carbrey, Defendant-Appellant.
    Gen. No. 68-93.
    Second District.
    May 16, 1969.

      Ruben, Kaplan and Lasky, of Chicago, for appellant.
    Burek and Field, of Wheaton, for appellee.
   PRESIDING JUSTICE MORAN

delivered the opinion of the court.

On December 29, 1967, the plaintiff filed a complaint for divorce in DuPage County. He alleged that he was an actual resident of that county but did not state the period of his residence. The grounds for the divorce in the original complaint were both mental cruelty and habitual drunkenness. In January, 1968, the defendant appeared and answered the complaint and also filed a counterclaim for separate maintenance on grounds of desertion. Ultimately the counterclaim was amended to seek a divorce.

On April 3, 1968, plaintiff filed an amended complaint for divorce alleging that he and defendant had been residents of the State of Illinois since July 7, 1967, and further charging grounds of mental cruelty in that the defendant had been a habitual alcoholic for a period of fifteen years and as a result of her alcoholism had forged numerous checks, had required the calling of police, the eviction of plaintiff from certain premises and the causing of such indebtedness on the part of the plaintiff as to force him into bankruptcy.

The trial court, sitting without a jury, heard numerous witnesses and at the conclusion of the proofs found that the defendant was “a chronic alcoholic, has been for the past ten years.” The trial court then ordered that the divorce would be granted to the plaintiff on the grounds of habitual intoxication, that the counterclaim of the defendant would be denied, and that the custody of the minor children of the parties would be vested in the plaintiff.

This appeal followed raising five issues. First, that the decree was void because the trial court lacked jurisdiction. Second, that the one-year residence requirement of section 2 of the Divorce Act (111 Rev Stats 1967, c 40, § 3) had not been met. Third, that the charge of mental cruelty in the amended complaint and the findings of the trial court that the decree would be granted on grounds of habitual intoxication were at variance and fatally defective. Fourth, that the defense of recrimination had been proven and consequently barred the divorce and, finally, that the trial court erred in granting custody of the minors to the plaintiff.

Our examination of the case leads us to the conclusion that the trial court was correct and that it should be affirmed.

There is no need for us to detail the lengthy record of alcoholism exhibited in this case. Suffice it is to say, the trial court’s findings that the defendant was a chronic alcoholic and had been for at least ten years before the trial is amply supported in the record.

The more difficult problem in this case arises over the fact that section 2 of the Divorce Act, supra, requires that a plaintiff be a resident of this State for one year prior to bringing a suit for divorce or a resident of this State for six months provided the grounds for divorce occurred within the State.

When the original complaint was filed, the plaintiff had not been a resident of Illinois for six months, and when the amended complaint was filed he had been a resident of Illinois for six months, but not for one year.

While the defendant answered instead of raising the question of jurisdiction, and thereby vested the court with jurisdiction over her person, the parties would not have power to vest the court with jurisdiction over the subject matter. However, subsequently and after the plaintiff had been a resident of Illinois for at least six months, an amended complaint was filed alleging grounds of mental cruelty and specifically referring to a long period of intoxication.

Assuming the plaintiff has been within the state for 6 months but not for one year, the question then becomes, may a ground for divorce which has a time period for its basis, ripen into a cause of action when only the latter portion of that time period occurred within the State of Illinois and the original inception occurred without this State?

In the early case of Ashbaugh v. Ashbaugh, 17 Ill 476, 477 (1856), the inception of desertion actually occurred between husband and wife in Canada. The period of desertion became complete while the defendant resided in Illinois. The Supreme Court held that the plaintiff could obtain a divorce here in Illinois because the grounds of desertion had become complete while the defendant was a resident of this State.

In the case of Conrad v. Conrad, 396 Ill 101, 71 NE2d 54 (1947), the inception of desertion took place in the State of Florida, but the period of desertion was completed while the plaintiff was a resident of fllinois and living in West Frankfort. The wife challenged the divorce on the grounds that the period of desertion must originate and be completed in the State of fllinois. The Supreme Court said at pages 104-105, “Appellant contends that all of these jurisdictional facts must exist while the appellee lived within the territorial limits of the city of West Frankfort before any cause of action arose. This contention is not well founded. To hold that the original act of leaving must occur in this State would deprive bona fide residents of this State from having their causes of action heard by the courts in their own State. . . . Inasmuch as appellee was a resident of the city of West Frankfort when the act of desertion became complete in this State, then the cause of action had arisen within the corporate limits of the city of West Frankfort and there was no error in the city court of West Frankfort dismissing the appellant’s motion to vacate the decree.”

We conclude, therefore, that the rule of law is that a ground for divorce requiring a period of time to be completed may originate anywhere and that the Courts of fllinois will have jurisdiction to hear it if it is cornpleted while the person bringing the ground is a resident of Illinois, assuming that he has been a resident of our State for the requisite period.

This rule is supported by the authorities as above disclosed and it seems to us that it is supported by logic. The purpose of the residence requirement is to prevent forum shopping. The residence requirement itself has no connection with the grounds as will be seen by the fact that various grounds have different time requirements, and indeed some grounds have no time requirements at all. For example, desertion must be for a period of one year and habitual drunkenness for two years, while the grounds for cruelty or adultery may be established in a lesser period.

The reason habitual drunkenness is considered to be a ground for divorce in this State is that where alcoholism lasts for a two-year period it has a substantial deleterious effect on a marriage. This effect is equally deleterious wherever it occurs. The fact that it occurs in Illinois does not make it more deleterious than if it occurs partly in Illinois and partly in another state. The Legislature is correct in prescribing residence requirements so as to prevent forum shopping, but obviously the Legislature did not intend that the two-year period for drunkenness should all occur in Illinois, since that is not the problem intended to be solved by the statute.

To hold otherwise we would have to conclude that the person who had been a resident of Illinois for more than six months, but less than one year, could get a divorce in Illinois on certain grounds, such as cruelty and adultery, but that he could not get a divorce in Illinois on all the grounds prescribed in the statute, whereas the person who had been a resident of Illinois for more than one year could get a divorce in this State on all of those grounds. It is inconceivable to us that the Legislature intended to discriminate in that fashion. In addition to that, a person who is guilty of habitual drunkenness could move from the jurisdiction before the expiration of two years and as long as he moved to a state that had a similar statutory requirement he could avoid a divorce altogether. Obviously, the Legislature did not intend such a result.

We conclude, therefore, that the six months’ residence requirement of section 2 of the Divorce Act, supra, applies to this case. We conclude further that while the original complaint filed in this case was a nullity, the amended complaint did vest the trial court with jurisdiction not only of the parties, but of the subject matter of this cause.

In connection with the alleged fatal variance between the allegation of grounds in the amended complaint and the findings of the trial court, the defendant has made a motion to amend his pleadings in this Court to allege habitual drunkenness as a ground. That charge is amply supported by the evidence and, indeed, was specifically set forth in the amended complaint. We grant the motion.

The defendant next argues that they have proven a defense of recrimination against this plaintiff and that they have shown that the plaintiff was guilty of physical cruelty. The defendant further argues that every ground for divorce, if proven, acts in recrimination of every other ground excepting only adultery which is considered to be so grave as to not be defensible even though the person charging adultery has been guilty of another ground for divorce. We find it unnecessary to pass upon the validity of this rule in the case at bar. The rule of recrimination only applies if both parties prove that the other has been guilty of such conduct as would be a grounds for divorce, but in this case the trial judge found the issues against the defendant and dismissed the counterclaim.

As we said in the case of Kovac v. Kovac, 26 Ill App2d 29, 52, 167 NE2d 281 (1960), “Where the chancellor sees the witnesses and listens to their testimony, his findings of fact will not be disturbed unless they are manifestly against the weight of the evidence.” In this case both the defendant and her daughter testified that the plaintiff had been guilty of physical cruelty. The plaintiff denied and his son joined in the denial. It saddens us that the bitterness which is apparent in this record forced mother and daughter and father and son to testify on opposing sides, and yet in view of the conflicting evidence where the trial judge has seen and heard the witnesses and is in the best position to determine the matter, we cannot substitute our judgment for his and we must conclude that the defense of recrimination was not proved.

The remaining point before us concerns custody of the minor children which, as we have indicated, was vested in the father. As we said in Eggemeyer v. Eggemeyer, 86 Ill App2d 224, 231, 229 NE2d 144 (1967), “In all matters concerning the custody of children, the paramount issue is their welfare. . . . The trial court is clothed with a large discretion in child custody matters and a reviewing court is reluctant to interfere with the trial court in its exercise of such latitude of choice.”

We are not now concerned with the parents. We are concerned only with the welfare of the children. That concern, and indeed the jurisdiction of the courts, will last all during their minority. The trial court had the parties before him and is in the best position to judge where custody can be placed so that it will be in the best interests of the children. There is nothing in the record before us which indicates that his judgment was erroneous.

Because of the conclusions we have reached herein, the judgment of the trial court must be affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

author: CRAVEN, J.,

license: Public Domain

text:
    Joe H. Pritchett, Administrator of the Estate of Franklin Gale Bowen, Deceased, Plaintiff-Counterdefendant-Appellee, and Betty L. Bowen and Howard Young, Sr., Plaintiffs-Appellees, v. Steinker Trucking Company, Inc., a Corporation, Defendant-Counterplaintiff-Appellant, and Mary Jane Miller, Individually, and as Administrator of the Estate of Paul Richard Miller, Deceased, Counterplaintiff-Appellant.
    Gen. No. 10,777.
    Fourth District.
    May 22, 1969.

      Greanias & Owen, of Decatur (Robert D. Owen and Marshall A. Susler, of counsel), for appellants.
    Robert P. Shonkwiler, of Monticello, and Richard J. Welsh, of Webber & Welsh, of Decatur, for appellees.
   CRAVEN, J.,

delivered the opinion of the court.

Having granted leave to appeal from an opinion of this court in this case, the Supreme Court reversed and remanded the case for consideration of other alleged errors not reached in our prior opinion. See Pritchett v. Steinker Trucking Co., 40 Ill2d 510, 240 NE2d 684 (1968).

The facts are detailed in our former opinion (Pritchett v. Steinker Trucking Co., 85 Ill App2d 340, 230 NE2d 68 (4th Dist 1967)) and need not be repeated.

This action for wrongful death was brought in the Circuit Court of Piatt County by the administrator of the estate of Franklin Gale Bowen, deceased, against the Steinker Trucking Company, owner of a truck which had collided with a truck driven by Bowen. Bowen’s widow and the owner of the truck he was driving also sought recovery for last expenses and damages to the truck, respectively. Jury verdicts for the plaintiffs were returned and judgments entered on the verdicts. On appeal this court reversed and remanded for a new trial on the basis of newly discovered evidence. In our prior opinion we also disposed of the defendant Steinker’s affirmative defense of estoppel by verdict based upon a verdict and a judgment entered in a former case involving the same transaction. See Miller v. Pillsbury Co., 56 Ill App 2d 403, 206 NE2d 272 (4th Dist 1965), affd 33 Ill2d 514, 211 NE2d 733 (1965).

In our former opinion, since we did conclude that a new trial was required, we did not pass upon certain alleged errors. The Supreme Court, by its mandate, has remanded the cause to us for consideration of those remaining issues. Errors assigned and not previously considered, and thus remaining for determination, are:

1. That the verdict of the jury was against the manifest weight of the evidence;
2. That plaintiffs’ expert witness improperly was permitted to give an opinion on the manner of of the happening of the collisions involved; and
3. That the trial court erred in allowing testimony that plaintiff’s decedent was a person of careful habits.

In supplemental briefs filed in this court, appellees contend that both this court and the Supreme Court have already considered and passed upon the ground of error listed as No. 2 above as to plaintiffs’ expert witness, Oscar Kurt’s testimony. In our prior opinion we noted that the manner in which plaintiffs’ expert was allowed to testify made it difficult to understand the basis for his opinion. We further stated that the record indicated he was testifying hypothetically and confining his opinion to the case at bar. We then made observations with reference to the presentation of his expert testimony upon retrial, which we had determined was necessary. Although the language of our former opinion may establish some basis for the appellees’ contention that this error has been considered, however, in the full context of that opinion, we were careful to note that we did not pass upon this alleged error.

The language of our opinion was intended as a guideline to proper expert testimony upon retrial. Since we had already determined that a retrial was necessary, further consideration of the alleged error, which could only result in a retrial, would have been totally unnecessary. We find nothing in the opinion of the Supreme Court that in any way passes upon this alleged error or that indicates the Supreme Court in any way considered that this court passed upon the alleged error. Thus, it is still part and parcel of this appeal and we will so consider it.

One of the principal issues in this case was whether the driver of the Steinker truck was negligent. Mack Pargin, the driver of the second Pillsbury Company truck in a line of three trucks, testified that when the Steinker truck, which was approaching him, was about fifteen feet from him it gradually came into his lane of traffic and struck the front and side of his truck. It was after this collision that the Steinker truck came into contact with the third Pillsbury Company truck driven by Bowen. Pargin’s testimony at the trial was inconsistent and contradictory with his testimony at the coroner’s inquest, on discovery deposition, and during the trial of Miller v. Pillsbury Co., wherein he testified that the Steinker truck “swerved” or “veered sharply.” Pargin’s testimony at the trial, if believed, would result in the conclusion that the Steinker and Bowen vehicles collided in Bowen’s lane of traffic and that the driver of the Steinker truck was negligent.

Defendant’s principal witness, J. Stannard Baker, testified as an expert witness in reconstructing the accident. There is no issue on this appeal as to this testimony. He based the reconstruction and his conclusions upon information which he gathered at the place of the accident approximately one month following the accident, an examination of the damaged parts of the trucks involved, photographs of the trucks and his own observations. By analyzing this information and by reconstruction, he gave his opinion as to how the accident occurred so as to account for all of the damage to the vehicles involved and for the marks visible on the highway. His opinion was that the left side of the Steinker truck was slightly to the south (or right) of the center line of the highway and that the second Pillsbury truck was also to the south of the center line of the highway when the first impact occurred. He concluded that this impact rendered the Steinker truck uncontrollable, since its left-front wheel was gone, and jackknifed it to the left into the other lane and into the path of the Pillsbury truck driven by Bowen. Thus, it was his opinion that the course of the Steinker truck after the impact with the second Pillsbury truck was beyond the control of its driver. This testimony refuted the testimony of Pargin and indicated that the collision between the Steinker truck and Bowen’s was not due to the negligence of Miller, the driver of the Steinker truck, but due to the negligence of Pargin.

At this point in the trial, plaintiffs offered in rebuttal the testimony of Oscar Kurt. His testimony was offered as that of an expert in accident reconstruction. He stated it to be his opinion that it was the Steinker truck which was across the center line at the time of the initial collision. This testimony then became a “critical” and vital factor to plaintiffs’ case.

As this court recognized in Abramson v. Levinson, — Ill App2d —, — NE2d — (1969), the testimony and opinion of a reconstruction expert may be admissible where the facts and circumstances of the particular case are such that an opinion of such expert will aid the jury in arriving at a just verdict.

Whether the testimony of an expert and the expression of his opinion is admissible as an aid to the jury is, of course, initially a matter for the exercise of the sound discretion of the trial judge. The trial court should consider, before admitting such testimony and opinion, the factors set forth in our opinion in the Abram-son case. Among these factors is the requirement that the opinion of the expert must be based upon the evidentiary facts in the record. When there is insufficient undisputed physical evidence in the record to provide basic data needed for the application of the principles of physics, engineering or science, or where the expert bases his opinion upon matters not in evidence in the particular case, the expert’s opinion is not admissible.

In order for an expert to testify as to his opinion, the law wisely requires that he be questioned in the frame of a hypothetical question which contains the hypothetical facts, but which facts are in evidence in the proceedings. Undisputed facts cannot be ignored. Opp v. Pryor, 294 Ill 538, 128 NE 580 (1920); McCarthy v. Spring Valley Coal Co., 232 Ill 473, 83 NE 957 (1908); Sanitary Dist. of Chicago v. Industrial Commission, 343 Ill 236, 175 NE 372 (1931). His opinion cannot be based on inadmissible evidence, nor can it be based upon facts not presented to the jury. Louisville, N. A. & C. R. Co. v. Shires, 108 Ill 617 (1884); Kanne v. Metropolitan Life Ins. Co., 310 Ill App 524, 34 NE2d 732 (1st Dist 1941); Butler v. Palm, 36 Ill App2d 351, 184 NE2d 633 (2nd Dist 1962). Further, to permit a witness to testify to an opinion based upon matters reported privately to him is error. People v. Black, 367 Ill 209, 10 NE2d 801 (1937).

The record in this case shows that while numerous references were made in the questioning of Dr. Kurt to the fact that he was testifying hypothetically, and several questions were asked of him of a hypothetical nature, the undisputed material facts in evidence were not placed in the questions asked. At one point he was told by plaintiff’s counsel as a part of the question, “. . . if there are any things that you need that I have not told you, that you do not know, you should first inquire if there is any evidence as to that fact.” Dr. Kurt stated that he had reviewed the abstract of record of the previous trial (Miller v. Pillsbury Co.) and that abstract included testimony of other persons. His testimony and the questions asked him were such that the jury could not know what facts he was considering in expressing his opinion. In a case where the evidence is closely balanced on the essential issues, the testimony of this witness and the expression of his opinion in the manner given is error necessitating a new trial.

We turn now to the assertion that the trial court committed error in admitting testimony that plaintiff’s decedent was a person of careful driving habits. There were no eyewitnesses produced at the trial and none were shown to be available. The ultimate disposition as to the witness Allen by the Supreme Court determined that to be the evidentiary situation. There was no error in permitting this evidence of careful driving habits. It is well established that in the absence or unavailability of direct evidence, habits of due care of the decedent in an action for wrongful death may properly be introduced. Bird v. Louer, 272 Ill App 522, 535, 539; Lowry v. Chicago & N. W. R. Co., 248 Ill App 306, 311; Casey v. Chicago Rys., 269 Ill 386, 109 NE 984.

Finally, turning to the issue of whether the verdict of the jury was against the manifest weight of the evidence, it is first necessary to observe that we must review this record in the same posture as did the circuit court. This court, after all, is a court of review. Although we have concluded that there was error in the admission of the testimony of Kurt, in passing upon this issue the trial court necessarily considered that evidence. As we observed, this was a closely balanced case. The verdict of the jury resolved the evidentiary conflicts and that verdict, based on the evidence then before it, could not and would not be disturbed here as being against the manifest weight of the evidence.

Reversed and remanded for a new trial.

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


author: STOUDER, P. J.

text:
    Raymond Ladd, Executor of the Will of Oliver Ladd, Deceased, Plaintiff-Appellant, v. Harold J. Ruck and Mary E. Ruck, Defendants-Appellees.
    Gen. No. 68-83.
    Third District.
    April 17, 1969.
    Rehearing denied May 21,1969.

      Baymiller & Christison, of Peoria, for appellant.
    Rubelle & Pratt, of Peoria, for appellees.
   STOUDER, P. J.

Raymond Ladd, Executor of the estate of Oliver Ladd, brought this action in the Circuit Court of Peoria County against Harold Ruck and Mary Ruck seeking to recover $7,000 allegedly borrowed by the defendants or one of them from Oliver Ladd during his lifetime. The issue was submitted to a jury and resulted in a verdict in favor of the defendants upon which judgment was entered. Post-trial motions for judgment notwithstanding the verdict and for a new trial were denied and plaintiff has appealed.

The facts are undisputed. On September 27,1957, Oliver Ladd, the father of Raymond Ladd, Ralph Ladd and Mary Ruck, withdrew $5,000 and $1,000 from savings accounts he had in two savings institutions in Chillicothe, Illinois. The checks representing such withdrawals, were endorsed by Oliver Ladd and paid by the banks upon which they were drawn. On the same day as the withdrawals the First National Bank of Chillicothe, Illinois, issued its cashier’s check for $6,000 to Harold Ruck whose endorsement appears thereon and which check was thereafter paid. The register of drafts shows that the $6,000 cashier’s check was issued to Harold Ruck and was sold to “Ladd, Ruck.” The cashier,of the bank, notwithstanding objections by defendants, was permitted to testify concerning the foregoing records of the bank relating to the issuance of the cashier’s check. He had no personal recollection of the transaction, had no reason or explanation for the notation “Ladd, Ruck” which appeared on the register and presented no testimony concerning the source of the funds used to purchase such cashier’s check.

Thereafter as admitted by their answer, defendants borrowed $1,000 from Oliver Ladd and gave him their note for $1,000 dated March 24, 1958, due two years after date with interest at six percent per annum. In the years 1961,1963 and 1964, there were deposited to Oliver Ladd’s checking account in the State Bank of Speer six checks each in the amount of $210, drawn on the account of Harold and Mary Ruck. The first two checks dated in 1961, were signed by Harold Ruck. The third and fourth checks dated 1963 and the fifth check dated 1964, were signed by Mary Ruck and bore the legend on the front of the check “interest on $7,000.00.” The last check dated 1964, was signed by Harold Ruck and bore the legend “interest.” On January 27,1966, the attorney for plaintiff executor, wrote a letter to the three residuary beneficiaries, explaining among other things that the executor was about to make a partial distribution of $2,000 to each beneficiary. The letter further explained that as Mary and Harold Ruck were indebted to the estate for $7,000 plus $420 interest, Mary’s distribution would be made by crediting the indebtedness with $420 for interest, $1,000 on principal leaving a balance of $6,000. A check in the amount of $580, payable to Mary Ruck, was enclosed with the letter which check was deposited to her account.

Mary Ruck was called as a witness in her own behalf. After testifying without objection that she did not owe the amount claimed, objection to her further testimony was sustained by the trial court on the ground that she was disqualified from testifying in her own behalf under the terms of the Dead Man’s Statute.

Seeking to reverse the judgment of the trial court plaintiff contends that the evidence is insufficient to support the jury’s verdict. The defendants argue that although the facts are largely undisputed, the reasonable inferences to be drawn therefrom are disputed and therefore the issues were properly submitted to and resolved by the jury.

No claim is made that the court erred in any of its rulings on the admission or exclusion of evidence. The principal question is whether the evidence is sufficient to support the jury’s verdict. The rule in Pedrick (Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504) requires that we consider all of the evidence in its aspect most favorable to defendants to determine whether such evidence is so overwhelmingly in favor of plaintiff that the verdict in favor of defendant should not be permitted to stand.

Plaintiff concedes that the evidence may be characterized as circumstantial, a conclusion with which we agree. Nevertheless plaintiff insists that only one conclusion is warranted from the evidence, namely that the defendants or one of them, borrowed the $6,000 claimed to be due. This assertion is based on plaintiff’s view that because defendants offered no evidence as a defense to plaintiff’s claim or in opposition to the evidence of plaintiff, no controverted issue existed or could exist. Plaintiff believes this position to be supported by Pedrick v. Peoria & Eastern E. Co., supra, a position with which we do not agree. Facts may be undisputed or a defendant may have failed to introduce evidence in his behalf but it does not follow that issues are therefore uncontroverted. Undisputed facts may give rise to different reasonable inferences to be drawn therefrom. Genck v. McGeath, 9 Ill App2d 145, 132 NE2d 437. The question also arises as to whether undisputed facts do or do not tend to prove or disprove the issues in controversy. The Pedrick rule does not require that verdicts be directed or motions notwithstanding verdicts be granted merely because a defendant has failed to introduce evidence in his own behalf or has failed to dispute facts presented by the plaintiff.

There is no question but that circumstantial evidence is competent evidence. Such evidence even if standing alone, may be sufficient to prove or disprove a material fact or issue. Devine v. Delano, 272 Ill 166, Ill NE 742. Courts have recognized that in some cases such as the instant case, circumstantial evidence like that of any evidence depends on its tendency to prove an ultimate fact in issue.

Plaintiff argues that the four undisputed circumstances constitute a chain of interrelated events which warrant only a single conclusion. Such events may be summarized as one, the withdrawal of $6,000, two, purchase by Euck of cashier’s check on same date in same amount, three, checks in 1961, 1963 and 1964, and four, acceptance of partial distribution. Defendants insist that such circumstances are unrelated and coincidental and as a consequence thereof the jury could properly have decided that plaintiff had failed to prove the claim to be more probably true than untrue. Plaintiff, in his brief, expresses the doubt that any one of the events standing alone would have been sufficient to support his claim. We add to this the observation that since plaintiff relies on a chain of circumstances, the chain is no stronger than its weakest link or links. To the events which plaintiff characterizes as being conclusively favorable to its position should be added another undisputed fact namely that when defendants admittedly borrowed $1,000 in 1958 from Oliver Ladd they executed and delivered their promissory note therefore which note was in Oliver Ladd’s possession at the date of his death. From such facts and from the absence of any other promissory note, the jury might well have inferred that defendants did not borrow any money in 1957 from Ladd. We believe disputed inferences could have been reasonably drawn from the evidence, that the issues were properly submitted to the jury and its verdict is supported by the evidence.

For the foregoing reasons the judgment of the Circuit Court of Peoria County is affirmed.

Judgment affirmed.

ALLOY and RYAN, JJ., concur.


author: SMITH, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Virginia L. Seipel, Defendant-Appellant.
    Gen. No. 10,981.
    Fourth District.
    April 24, 1969.
    Rehearing denied June 20,1969.

      Thomas F. Londrigan, of Springfield, for appellant.

      Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield (Richard A. Hollis, First Assistant State’s Attorney, of counsel), for appellee.
   SMITH, J.

Defendant was convicted of voluntary manslaughter in the killing of her husband and was sentenced to serve 3 to 10 years in the penitentiary. In this court, the defendant makes five assignments of error: (1) That the conduct of the trial judge deprived the defendant of a fair trial and due process of law, (2) that the State offered no credible evidence to rebut evidence of the defendant’s insanity at the time of the shooting, (3) having permitted the defendant to plead guilty to the charge of involuntary manslaughter and then thereafter to withdraw such plea, it was error to deny that plea as a bar to a subsequent indictment charging murder, voluntary manslaughter and involuntary manslaughter (4) the trial court erroneously ruled on instructions and (5) the trial court abused its discretion in denying probation.

It is apparent from this record that the court ran a “tight” or firm court, both evidentiarywise and otherwise. We note from the record that on two occasions the trial court admonished counsel (1) to keep his voice down and (2) to hold his temper. On another occasion outside the presence of the jury, the court observed that it was a hot day and the fourth day of the trial and tempers sometime flair. The philosophy of court and counsel on the conduct of the trial were polls apart. We have carefully read the record in this case. It does not justify the characterizations of judicial conduct contained throughout the brief nor are such characterizations helpful to this court in resolving any issues presented by this record.

The defendant shot and killed her husband with a 25-caliber gun at her home around 8:00 p. m. on October 11, 1966. Her defense was insanity. The record establishes that she was a woman 41 years of age, in her menopause, had been estranged from her husband for about a year and one-half, and was struggling with emotional and psychological problems. In August of 1965, she was hospitalized with suicidal tendencies. She obtained a job as a switchboard operator in the spring of 1966, became more and more nervous at the job and upset at her husband’s telephone calls, quit work in June and was again hospitalized. Between August of 1965 and October 11, 1966, she saw some half-dozen doctors and psychiatrists. They all prescribed medication. Her psychiatrist treated her in July of 1966 and discharged her from the hospital on July 8. She did not return to him for further treatments, but saw two other doctors and was hospitalized on September 29, for “anxiety-state.” She had obtained a position in the Driver’s License Division of the Secretary of State’s office and returned to work on October 10. On October 11, she was administered 1/8 cc. of dicurin. Her conduct during the day was testified to by lay people as normal. Her sisters listened to an argument between the defendant and her husband and testified that he was cursing and she was crying. They heard two shots, ran for help, entered the house, she was standing with the pistol in her hand and her husband was lying on the floor near the davenport with two revolver wounds. Her relatives and police officers testified that she was hysterical, talking loudly and gasping and was taken to the psychiatric division of St. John’s Hospital by the sheriff’s office where she was under twenty-four-hour-a-day surveillance. She did not speak, she did not move, and she did not eat. On October 13, sodium amytal was administered by her treating psychiatrist and he interviewed her. Later the same morning, the assistant State’s Attorney interviewed her and this interview was transcribed. Most of the heat and controversy between counsel and the court arose over what evidence was admissible and whether or not the statements taken under sodium amytal were admissible. It was the position of the defendant that the involuntary disclosures made by her while under the influence of sodium amytal were admissible in evidence and denial thereof took from the jury the opportunity to use such statements as a factual basis for “a finding that she was not legally responsible for the acts at the time they were committed.” The defendant states that this is contrary to the majority rule in the United States citing a California case and the case of People v. Esposito, 287 NY 389, 39 NE2d 925. Esposito refused to pass on this point and was not followed by the New York Court in People v. Ford, 304 NY 679, 107 NE2d 595. The majority of the court held that in a case of first degree murder, where the accused’s mental capacity for premeditation was in issue, a doctor who expressed an opinion that the accused did not have such ability was properly prevented from testifying as to the test of defendant made while the defendant was under the influence of sodium amytal. Published is the dissenting opinion of two judges who took the position that this was error for the reason that having expressed an opinion the jury was entitled to all of the facts upon which the doctor based his opinion. It is sufficient to say that the view expressed in that dissenting opinion is not the law of this State and, parenthetically, it ought not be for the reasons stated in People v. Myers, 35 Ill2d 311, 220 NE2d 297. In ruling on the defendant’s offer of proof in our case, the trial court said:

“If the doctor feels that it is necessary in order to properly probe this person’s mind to inject a serum and to listen to her response to questions, I will permit him to testify that he did so; and will permit him to testify about doing it up to the point where he starts to quote her.
“I will not permit this witness or any other witness to testify on this point, nor allow the statement to be introduced for that.”

This ruling is squarely in keeping with the Supreme Court’s statement in Myers that “there is nothing to indicate that defendant’s responses while he was under the influence of sodium pentothal [amytal] were necessary for the jury to understand the psychiatrist’s findings or opinion based upon such examination. It was not error for the trial court to exclude testimony concerning defendant’s responses while under the influence of the sodium pentothal.” The defendant cites People v. Heirens, 4 Ill2d 181, 122 NE2d 231, and People v. Haun, 71 Ill App2d 262, 217 NE2d 470, as supporting her theory. These cases fall far short of authority that statements made under the influence of sodium amytal are admissible and neither so holds. We perhaps ought to say that even if they did, they would be controlled on the precise point by People v. Myers and the trial court followed People v. Myers. Certiorari in Myers was denied by the United States Supreme Court in 385 US 1019, 17 L Ed2d 557, 87 S Ct 752. Ill Rev Stats 1965, c 38, § 158-1, forbids a court “in the course of any criminal trial . . . [to] require, request or suggest that the defendant submit to a polygraphic detection deception test” or to the truth drugs. In People v. Nelson, 33 Ill2d 48, 210 NE2d 212, certiorari denied, 383 US 918, 15 L Ed2d 671, 86 S Ct 911, the Supreme Court stated that a polygraph operator’s opinion as to the truthfulness of a lie detector subject had never been recognized by the court as admissible evidence on the issue of a defendant’s guilt or innocence. This follows the statute just quoted and we see no persuasive distinction between the application of that statute and its principles to statements made by one under the influence of truth drugs. In the face of Myers and of the statute, it is clear that both the courts and the legislature have some dubiety about the probative value of statements made under such circumstances and the danger of relating them for any purpose. We share that same view.

The treating psychiatrist was asked whether or not the defendant at the time of the shooting as a result of mental disease or defect lacked substantial capacity to appreciate the criminality of her conduct. Answering in the affirmative, the doctor stated, “I don’t think the defendant could conform her conduct to the requirements of the law. My basis is stated in the reasons I gave before. The drug she was taking, her basic personality and as to her state of mind, her senses were numb.” He had previously given a complete and detailed analysis of her personality, her hysteria, her use of the various drugs prescribed by the other doctors and their effects upon her, his suspicion that she had taken more of the drugs than the doctors had prescribed, and included in his opinion some of the information concerning the drugs that he had obtained from her during the sodium amytal interview. In rebuttal, the State called some lay witnesses and a psychiatrist to whom was prepondered a hypothetical question. Based on that hypothetical question, that doctor stated that it was his opinion that “she has the capacity to know the criminality of her acts. In my opinion, she had the ability to conform to the law.” No objection was made to the hypothetical question and in cross-examination, the doctor stated that his opinion was based on the facts stated in that question. The question of insanity having been raised, it then became the burden of the People to establish that the defendant had substantial capacity to appreciate the criminality of her conduct. Upon the record we now review, this was a question of fact for the jury and we see little reason on this record to disagree with their conclusion that the State maintained its burden of proof beyond a reasonable doubt.

On October 13, the defendant was charged with murder. Thereafter, an information was filed charging the defendant with involuntary manslaughter and she pleaded guilty and asked for probation. Considerable opposition developed to the granting of probation and the defendant moved to withdraw her plea of guilty on the grounds of newly discovered evidence and informed the court that the defense would be insanity at the time of the occurrence. This motion to withdraw her waiver of indictment and her plea of guilty to the information was allowed. The information charging involuntary manslaughter was abandoned. Thereafter, the Grand Jury returned a seven-count indictment charging murder, voluntary manslaughter and involuntary manslaughter. The defendant now contends that under the compulsory-joinder provisions of HI Rev Stats 1965, c 38, § 3-3, the prosecution for voluntary manslaughter upon which the defendant was convicted is barred. Simply stated, they assert that the State cannot elect to commence prosecution on a lesser offense based on the same act, solicit a plea of guilty and then prosecute the defendant for a greater offense, if such plea is vacated. It seems to be the position of the defendant that the statute places the burden on a prosecutor to either irrevocably elect the charge on which he desires to proceed or to proceed on all charges growing out of the same conduct. People v. Mullenhoff, 33 Ill2d 445, 211 NE2d 744. The defendant flies squarely in the face of the statute which bars the prosecution only if there is either a conviction or an acquittal or a determination that the evidence is insufficient to warrant conviction on the first trial. In People v. Miller, 35 Ill2d 62, 219 NE2d 475, the Supreme Court held that a mistrial did not constitute a conviction nor acquittal which would bar a subsequent prosecution. By the same token, permitting the defendant to withdraw her plea and her waiver of indictment left her neither convicted nor acquitted of the charge. Defendant argues that there is some basic unfairness in permitting multiple prosecutions and that under the circumstances here, the prosecutor is confined to the prosecution for involuntary manslaughter upon which he originally elected to proceed. We submit a fair trial applies as well to the prosecution as it does to the defendant. The defendant cites People v. Haycraft, 76 Ill App2d 149, 221 NE2d 317. The problem presented in Haycraft is not remotely present in the case at bar. In that case, a probation officer, testifying before a jury after a withdrawal of a plea of guilty and relating a conversation with the defendant, stated “I asked him if he performed the act and since he had already pled guilty at that time, etc.” It was there pointed out that a plea of guilty subsequently withdrawn is not admissible in evidence against an accused upon his trial on the substituted plea of not guilty and even though the court directed the statements stricken and the jury was told to disregard it, the harm was done. The cause was reversed and remanded for a new trial. In the context of our case, there is no evidence that the jury was at all aware of the former plea of guilty to involuntary manslaughter and the alleged problem becomes purely fictional imagination. To hold that the prosecution is now bound by his election to file the information is squarely contrary to the provisions of the statute. There is little doubt that the prosecution would have carried on under the plea of guilty, but this wasn’t to the defendant’s liking and she decided to take another tack. Having withdrawn her plea of guilty with the acquiescence of the People, she effectively scuttled the then pending information charging her with involuntary manslaughter. Haycraft squarely holds that having done so, that proceedings is a nullity and without utility for any purpose. The present prosecution is not barred through any proper concept of fairness nor for any of the reasons stated in the statute.

On the issue of self-defense, the State tendered an instruction as follows:

“The court instructs the jury that a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.
“ ‘Reasonably believes’ means that the person concerned, acting as a reasonable man, believes that the described facts exist.”

Complaint is made of this instruction on the ground that it does not properly advise the jury of the defendant’s condition and state of mind in determining what was reasonable or apparent to her. Defendant offered three instructions on the same subject. The first instruction told the jury that the right of self-defense does not depend upon the correctness of the slayer’s apprehension of apparent danger, that he might act upon appearances and use deadly force if he had reasonable grounds to believe and does believe that such killing is necessary to save himself from death or great bodily harm although in retrospect it may turn out that the appearances were false or that he was mistaken as to the extent of the actual danger. The second instruction stated that one confronted with danger or assaulted is not obliged to use the same mature judgment and consideration that persons otherwise not confronted with sudden danger are required to use, but may act upon appearances and if he misinterprets, misunderstands or makes a mistake about the appearances, he is not criminally liable. The third instruction is that where a person is in a place where he has a lawful right to be and is unlawfully assaulted and put in apparent danger of his life or great bodily harm, he doesn’t have to escape, but may stand his ground and meet force with force and use deadly force if necessary or apparently necessary. When the deputies arrived the defendant told them that as she entered the house that evening, it was dark and someone knocked her sprawling, that they wrestled over the gun and it went off. This testimony would support an accidental shooting rather than self-defense. Later after the shooting and after she was out of the hospital, the defendant told two witnesses that this gun was normally kept in the bedroom, but that she took the gun from the bedroom and put it behind a plant on the TV. She also told two witnesses that as he got up from the davenport, she shot him. The two sisters stood outside the house for about five minutes. All they heard was profane language on the part of the decedent and crying on the part of the defendant. One sister left, the other remained and in a matter of three or four minutes, two shots were fired. The evidence is also in dispute about whether or not the decedent came to the house as a result of his call to her or of her call to him. The evidence is also clear that on previous occasions the decedent had struck the defendant. We entertain some doubt as to whether or not there is a factual situation in any view of the evidence which justifies the giving of the self-defense instruction. There are no facts which point directly to an apparent necessity for her to shoot the decedent. There are no facts from which we can conclude that it appeared to her to be reasonably necessary or apparently necessary to shoot and kill the decedent. Neither sister testified as to any struggle, but only to foul and profane language and crying. The instruction given was in the language of the statute and was doubtless given because the defendant in her opening statements stated that one of the defenses would be self-defense. We see no error in this record in giving the instruction in the basic language of the statute.

To have instructed upon whether or not it was apparently necessary for her in her own self-protection to kill the decedent would patently have presumed a present fact from past conduct without present evidentiary support. Indeed the defendant abandoned the argument of self-defense in closing arguments and now states that it was because of the court’s ruling on instructions. The defendant in closing arguments stated:

“The law of self-defense is that a person must be reasonable in their use of force. They must be apprehensive of death or great bodily harm.
“Now, I think the history is such, and I think this will bear it out and the testimony related as to what happened earlier in that night, as she went to the house she was reasonably apprehensive, as a reasonable person — possibly not reasonably apprehensive of death or of great bodily harm, but ask yourselves if she is not reasonable in her self-defense, what was she? Had she done anything reasonable that the State has told you about other than trying to go to work and to conduct her business ?
“I submit to you if her act, the instinctive act to defend herself wasn’t reasonable, I say to you although she killed her husband, she did it in an instinctive act of self-defense, which may not be a legal defense, but the defense of insanity is. It is in issue here because of the introduction of the State of those statements and the question of self-defense.”

We think this was proper argument under the facts in this case and that the issue of apparent necessity was more appropriate coming from the attorneys in argument than for the court to have incorporated that element into his instruction without evidentiary support. The jury was adequately and properly instructed.

The defendant’s point that the trial court abused his discretion in refusing probation in this case is based upon defense counsel’s philosophy of what the law ought to be rather than the court’s philosophy of what the law is. There was considerable opposition to probation. This was well known to the defendant and indeed appears to have been a prominent reason for the withdrawal of her plea of guilty to the information charging involuntary manslaughter. Probation, a privilege but not a right, was properly denied. There was no abuse of discretion.

The defendant complains of the rebuttal argument of the State’s Attorney in which he said “. . . he did nothing to threaten the life of her, absolutely nothing. And had it been so, I am sure you would have heard it. Let me remind you, ladies and gentlemen, there is no evidence here that this deceased did anything to that woman that day or that night.” The defendant cites People v. Kostos, 21 Ill2d 496, 173 NE2d 466, and People v. Wollenberg, 37 Ill2d 480, 229 NE2d 490, as authority for the proposition that this is plain error and that it requires a reversal. It is, of course, axiomatic that the State’s Attorney may not in his closing arguments or at any time during the trial comment on the failure of the defendant to testify. It is the application of this rule that causes the difficulty. In this case, no objection was made to such argument and it is excused on the ground that an objection would have only emphasized the argument. We have noted a portion of the defendant’s closing argument and it strikes us that this statement by the State’s Attorney is properly directed to that argument where reference was made to an instinctive act of self-defense. Neither the physical condition in the room where the incident occurred nor the testimony of the two sisters justified that argument nor is the State’s argument in reply prejudicial error. In this record, we think it is a strained construction of the State’s Attorney’s argument to charge it with an explicit inferential reference to the fact that the defendant did not testify.

There being no error in this record, the judgment of the trial court is affirmed.

Affirmed.

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


author: ALLOY, J.

text:
    Gene Blade and Robert Lee, Plaintiffs-Appellees, v. Warren Sloan, Defendant-Appellant.
    Gen. No. 68-56.
    Third District.
    April 28, 1969.

      Kenneth E. Critser and John J. Kritzer, of Monmouth, for appellant.
    Love, Beal & Pratt, of Monmouth, for appellees.
   ALLOY, J.

Defendant Warren Sloan, who was a farmer, attended a farm sale on January 23, 1965, accompanied by his hired man, Dale Prater. The sale was conducted at a point approximately 50 miles from defendant’s home. Defendant was not acquainted with anyone attending the sale with the exception of the auctioneers. Defendant planned to bid on a 1962 A-C self-propelled four-row combine. He arrived prior to the sale and had an opportunity to examine the combine, and the record indicates that he did in fact examine it. Just prior to the auction of the combine, the motor was started and was run for a few minutes. The motor on the combine was newly painted. Prior to the time the bidding on the combine began, one plaintiff, Mr. Blade, and the auctioneer, both made statements that the combine was in good repair and ready to go to the cornfield. Defendant testified that in making the bid on the combine, he relied on the statements made by Blade and the auctioneer, as he could not see into the motor. Defendant was the successful bidder at the auction and the combine was struck off to him for $7,325.

As the auction moved to another article, a stranger approached defendant and said, “Do you know that the block is busted on that combine?” Defendant then checked the motor and found where there had been a three-inch crack in the block which had been welded and painted over, probably with several coats of paint. Defendant then tried to locate the owners of the combine and finally found Robert Lee, one of the two owners. Defendant stated he had just learned of the cracked block and the weld. Plaintiff Lee admitted that the motor had been broken and said that it was done about a year ago. Defendant stated that Lee said: “But you don’t need to worry about that motor, because I’ll guarantee that motor.” Plaintiff Lee denied making such statement and that the statement he made to the defendant after the sale concerned only the weld and his statement was that he would guarantee the weld. He also indicated in his testimony that the weld was made about a year and a half prior to the time of the sale, in the fall of 1963, and that the machine had been used for a full season and part of another season and that the weld had held effectively. He stated that it was possible to tell from the outside of the motor if the weld leaked from the inside out, and, from the condition of the oil in the motor when it was changed, whether it leaked from the outside in. All indications were, he stated, that there was no leak or problem with the weld. The combine was used for custom work so that it had a great deal of use after the weld was made. Gene Blade, the other plaintiff, also testified as to the condition of the weld and stated that it had given no trouble since it was made in the fall of 1963. Following the conversation with plaintiff, Robert Lee, defendant paid for the combine with a check.

On the following Monday, the defendant returned to the farm to pick up the combine. Plaintiff Blade had put it in a shed to protect it and he drove it out for defendant. Defendant brought his hired man, Mr. Prater, with him to drive the combine back to defendant’s home. Prater testified that Blade showed him how to start the combine and how to operate the pedals. Prater also testified that he had never driven a self-propelled combine before but that he had driven tractors. Neither defendant nor Prater inspected the combine or checked the oil before Prater drove it away. At a point 23 miles from where the combine was picked up, it stopped running on the highway. Prater testified, “It just quit — stopped dead.” He did not then inspect the machine but got a ride to another town and found the defendant. Prater also testified that he did not check any of the gauges during the time he was driving the machine and did not know if the oil gauge was functioning. Defendant Sloan (with Prater) went back to the combine that afternoon and put flares around it but did not examine the combine in any way.

On the following morning, defendant Sloan called Blade and told him that the combine had stopped along the road and it had run out of oil. There was no evidence in the record that Sloan had ever checked the oil after the combine stopped, but apparently defendant Sloan had inferred from what Prater had told him that the machine was out of oil. Blade asked where the combine was located and said he would be over. After defendant Sloan had talked to Blade he went to town and stopped payment on the check he had given for the combine, and then went to the sheriff’s office to get someone to help him with the traffic when they moved the combine. Sloan and Prater then went out to the combine with a supply of oil. They waited until Blade and Lee came before looking at the combine. As Blade, Lee and defendant Sloan examined the combine, Lee found a hole in the pan and observed that it would do no good to put oil in the motor.

There was a conflict as to the testimony regarding what was said at this time by Lee and by Sloan. Defendant Sloan testified that Lee stated that Sloan would not have to stand the expense of that condition. Lee testified that he made no statement as to who would stand the expense of the repair to the hole in the pan or any other repairs. The combine was then towed by a tractor into a neighboring farmyard and Sloan, Blade and Lee went to Monmouth to the implement store which originally sold the combine to Blade and Lee, and had serviced it just prior to the sale. At that store, all of the parties discussed what parts were needed to repair the combine. The repair order was written up in Sloan’s name, although Sloan testified that he did not participate in the negotiations as to the repair. Others testified that all parties participated in such discussions. While the parties were at the implement store, defendant Sloan first told Blade and Lee that he had stopped payment on the check he had given for payment on the combine. The implement dealer had requested that the machine be brought in to see what parts were needed, and defendant Sloan asked to be called when the machine was torn down. He later returned in about a week and saw the combine torn down and observed the damaged parts. The damage to the motor of the combine was extensive.

In the action filed in the instant cause, plaintiffs Blade and Lee sued to recover the amount of the sale of the combine and alleged a claim in one count under a contract theory, and in the second count alleged an action to recover on the check together with interest. Alternative counts sought damages for injury to the combine caused by the negligence of defendant and his hired man.

The record discloses that the mechanics employed by the implement dealer testified that the combine had been in their shop for a checkup, and that any necessary repairs to put it in good operating condition were made a week prior to the sale. Such testimony indicated that the work was done and that a crankshaft oil seal was replaced, the valves were ground, and the motor was tuned. The testimony indicated that when the work was completed, the combine was working properly and there were no apparent defects which would interfere with the operation of the combine. There was specific testimony that there was no problem with the weld and that any leakage problem from either outside or inside the block could have been detected from the condition of the oil when the oil in the motor was changed. Blade and Lee both testified that they knew of no defect in the combine when it was sold and that the weld had held for a year and a half and had given them no problem. There was testimony that the damage to the motor was in no way related to the weld in the block. The record indicated that the damage to the motor was caused when the governor on the motor burned out or malfunctioned which caused the motor to speed up and eventually, when not stopped, to fly apart. There was evidence that if this problem of a malfunctioning governor was not detected within two or three minutes after it began, serious damage of the type actually involved in the instant case could result to the motor. It was also disclosed that there was no means of determining when the governor would malfunction and that it could happen at any time or it might never happen.

Following such hearing by the trial judge without a jury, the court found for the plaintiffs for the recovery of $7,325 and for interest at the rate of 5 % in accordance with the statute (1967 Ill Rev Stats, c 74, § 2). On appeal in this Court, defendant seeks to reverse the finding of the trial court as being against the manifest weight of the evidence. Defendant had also filed a counterclaim for time and expenses incurred. The questions before us reduce themselves, basically, to whether there was an express warranty; the extent of the express warranty; and whether the finding of the trial judge that there was no breach of warranty was against the manifest weight of the evidence.

It is apparent that there was an express warranty at the time the combine was auctioned. From the record it is clear that the warranty which was made was that the machine was “in good repair and ready to go into the field” to combine corn. Both parties to this cause refer to the Illinois Commercial Code (1967 111 Rev Stats, c 26, § 2-313), which provides as follows:

“(1) Express warranties by the seller are created as follows:

“ (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. “(b) Any description of the goods which is made part of the basis for the bargain creates an express warranty that the goods shall conform to the description.”

The subsequent section of the act simply provides that it is not necessary that the seller use such words as “warrant” or “guarantee” to create an express warranty. The warranty in the cause before us was limited to the condition of the combine at the time of sale and there was no warranty that the combine would continue in that condition for any specific number of days, weeks or months. The machine was a used machine and the seller warranted as to its present condition, but it did not amount to a guarantee of the future operation of the machine. To the extent we have indicated, however, there was an express warranty (MacAndrews & Forbes Co. v. Mechanical Mfg. Co., 367 Ill 288, 297, 11 NE2d 382; Keller v. Flynn, 346 Ill App 499, 508, 105 NE2d 532).

In determining this cause, the trial judge specifically stated, “Defendant has not proved by the greater weight of the evidence that the damage to and condition of the motor later in the day on January 25,1965, 23 miles from the place where, and several hours after, he took possession of the machine, was, or was the result of, a breach of warranty that the machine at the time of sale was ‘in good repair and ready to go in to the field.’ ” It is apparent that such determination by the trial judge, on the basis of the record before us, was not against the manifest weight of the evidence. While defendant was not told of the crack in the block and the weld prior to the sale, the evidence in the record shows that the weld held perfectly and was not in any manner the cause of the damage to the combine motor. The combine was run for a season and a half after the welding, and it was continually checked for both internal and external leakage. No leakage was detected by the mechanics either in checking the weld just prior to the sale or after the combine broke down. It was thus indicated clearly that the weld held, and that the weld was in no manner responsible for the damage to the motor. Under this set of facts there was no breach of warranty by failure to notify defendant at the time of the sale that the block had been welded. There was no showing of any defective condition of the combine which the plaintiffs knew, or by reasonable inspection should have known, about the combine motor prior to the sale of which they failed to inform defendant. The evidence indicates that it was not customary to check the governor when checking up and tuning the motor. Plaintiffs also testified that they never had any problems with the motor of the combine prior to the sale, and that the combine never vibrated or surged or made any unusual noises. There was direct evidence that the machine ran smoothly when it was driven back to the farm from the implement dealer just two days before the sale.

In the light of all such evidence it is apparent that the trial court was correct in determining that defendant had not proven a breach of warranty. The only evidence as to the cause of the damage to the motor, a distance of 23 miles from plaintiff’s farm, was shown to be related to a malfunction of the governor. It was not shown that plaintiffs had any knowledge of any defect in the governor or had any trouble with the governor. On the basis of the record, there was no implication that the plaintiffs were at fault in any way in failing to check the governor prior to the time of the auction. The testimony indicated that the governor could malfunction when a pin breaks due to normal wear, and that if it is discovered in time and the motor is stopped, further damage could be averted.

A further question arises as to whether any statement was made by Robert Lee to defendant Sloan after the sale of the combine or by Blade or Lee to defendant Sloan at the time they were all inspecting the combine alongside the road after it had stopped. The conversation between Lee and Sloan after the time of the auction dealt only with the question of the weld. While the evidence was in conflict on this subject, the determination of the trial judge that Lee had not made any additional warranty as to the condition of the motor was a determination of a question of fact by such court.

The statement by defendant Sloan that Lee stated, after the combine had stopped on the road, that defendant Sloan would not be required to stand the expense of repair to the combine, was denied by both Blade and Lee, and the trial judge was, therefore, justified in finding that there was no additional or new warranty made at such time. There was also nothing in the conduct of Blade and Lee, in coming over to inspect the combine and in assisting in moving the combine to the implement dealer’s and in discussing the repairs with the implement dealer, which should be in any way construed as a warranty or promise by plaintiffs that they would be responsible for repairing the combine. On the record, the trial judge could have concluded that these were actions of reasonable men in attempting to help defendant who might not have known how to start a combine on a cold morning. Plaintiffs had even taken jumper cables along to attempt to start the combine on the road after defendant Sloan had called. At the time of the removal of the machine, neither plaintiffs nor defendant Sloan knew what was wrong with the combine and did not know whether defendant Sloan would be responsible in any manner for the damage. On the basis of the record, there was nothing in such conduct which would subject them to liability for the damage which actually occurred.

The only remaining question of significance is whether the awarding of interest at 5% from February 1, 1965, was proper. Such allowance was not made by reason of vexatious delay, on the basis of the trial court’s memorandum, but simply because defendant had wrongfully stopped payment on his check. Interest was, therefore, allowable under the statute (1967 Ill Rev Stats, c 74, §2). For our purposes on this appeal, this judgment was granted as a result of the wrongful stoppage of payment on the check. The trial judge could properly award interest under § 3-122 of chapter 26, 1967 Ill Rev Stats. We find no error in the cause which would justify reversal.

The judgment of the Circuit Court of Warren County will, therefore, be affirmed.

Affirmed.

STOUDER, P. J. and RYAN, J., concur.


text:
    In the Matter of the Estate of Walter A. Priebe, Deceased.
    Gen. No. 68-33.
    Third District.
    April 29, 1969.
    John A. Murchison, of Joliet, for appellant.
    Donald F. Wise, of Joliet, for appellee.
   ALLOY, J.

Decedent Walter Priebe died intestate on November 7, 1966. He was a resident of Will County and his estate consisted of approximately $11,000 in personal property. Frances Giovengo, a sister, filed a petition for letters of administration on behalf of herself and other brothers and sisters. The petition also alleged that decedent left three brothers, two other sisters, and Carol White and a Margaret Priebe, whose relationship to the testator was not specified in the petition. Carol White filed a cross-petition alleging that she was the daughter and sole heir of Walter Priebe. The cause was heard by the trial court without a jury.

The record discloses that Carol White was born on April 16, 1934, to an Angeline Joyce in Cook County, Illinois. The original birth certificate showed her name as Carol Joyce. She was, therefore, born as the illegitimate child of Angeline Joyce. On April 22, 1934, a few days after the birth of Carol, Angeline moved to the Convalescent Home on Kimbark Avenue in Chicago. While at this home she met Eleanor Giovengo, a sister of Walter Priebe. Walter Priebe talked with Angeline Joyce at this home, but the testimony offered by Eleanor Giovengo as to the meeting between Walter Priebe and Angeline Joyce was not permitted to be introduced in evidence since Eleanor Giovengo would have been an heir of the decedent if Carol was not found to be his daughter.

Angeline Joyce, then known as Hilda Fuchs, was married to Walter Priebe in Iowa on October 19, 1940. At such time, Carol was approximately six years old and she lived with Walter Priebe and Angeline (thereafter known as Hilda) for a period of 10 years. In December of 1943, Hilda made an affidavit under chapter 111%, § 48, of 1943 111 Rev Stats in force, for the purpose of obtaining a new birth certificate for Carol and in which Carol was listed as the child of Walter Priebe and Hilda. The affidavit was signed by Hilda only, but there was no requirement that Walter Priebe also sign such affidavit. While the record does not disclose that Walter had actual knowledge of the birth certificate, the parties continued to live together with Carol until 1950, when Walter and Hilda were divorced.

The statute under consideration (§ 48b) provided specifically that when the parents of an illegitimate child intermarry . . a certificate of such marriage may be recorded with the Department of Public Health and a new certificate of birth shall issue upon request in the same form as the certificate of birth for a legitimate child.” The Department of Public Health did in fact issue a new birth certificate for Carol listing her as the child of Walter Albert Priebe and Hilda Mary Fuchs. The birth certificate was introduced in evidence during the hearing on the petition for letters of administration referred to. Carol White also testified affirmatively that Walter was her father and that she lived with Walter and Hilda until they were divorced in 1950, after which she went to live with her mother, Hilda. She also testified that she had no knowledge of any subsequent marriage of Walter Priebe. Hilda Priebe now lives in Colorado and did not testify at the hearing.

Following the hearing in the trial court, the trial court found in favor of Carol White, and found that she was the sole heir of Walter Priebe and issued letters of administration to her. The petition of Frances Giovengo, sister of decedent, was dismissed. During the course of the trial, the court refused to permit Eleanor Giovengo, sister of decedent, to testify as to declarations made by Walter Priebe as to whether he was or was not the father of Carol White or matters relating thereto. The ruling was made by the court under the provisions of section 2 of the Evidence Act (1967 111 Rev Stats, c 51, §2).

On appeal in this Court, petitioner Frances Giovengo asserts that Carol White was required to prove herself within the provisions of section 12 of the Probate Act (1967 111 Rev Stats, c 3, § 12) relating to inheritance by illegitimates and, also, that the court erred in excluding the testimony of Eleanor Giovengo with respect to statements made by her deceased brother, which would have bearing upon the issue of whether or not Carol White was his daughter. Under the provisions of chapter 3, § 12, 1967 Ill Rev Stats, it is provided that an illegitimate child whose parents intermarry and who is acknowledged by the father as the father’s child shall be considered legitimate. In the cause before us there was the direct testimony of Carol White that Walter Priebe was in fact her father, accompanied by evidence in the nature of a new birth certificate pursuant to the provisions of chapter 111%, § 48b, reciting that Carol White was the child of Walter Priebe and his wife, Hilda. No contrary evidence was tendered on the subject of parentage with the exception of the effort by Eleanor Giovengo to testify on this issue.

The basic issue, therefore, revolves around the refusal of the trial court to permit the sister of Walter Priebe to testify as to declarations made by the decedent or testimony which would bear on the subject of the parentage of Carol White. The court refused to permit such testimony under the provisions of section 2 of the Evidence Act (1967 Ill Rev Stats, c 51, § 2). Appellant argues that pursuant to the case of Estate of Healea v. Healea, 254 Ill App 334, such evidence should have been received. While such evidence was admissible for the purpose of establishing parentage of a child, the court was correct in refusing to receive the evidence in the present case since the testimony of the sister was barred under section 2 of the Evidence Act (Estate of Diak, 70 Ill App2d 1, 217 NE2d 106). The sister was a party directly interested in the dispute involved in the petition filed by Carol White and in the petition of the sister, Frances Giovengo. Under the terms of section 2 of the Evidence Act, an interested party is prohibited from testifying in his own behalf when an adverse party sues as an heir under the precedent of Estate of Diak, supra. In the Diak case, as in the case before us, two petitions put in issue the heirship of the decedent. The court in that case ruled that a witness, who had been permitted to testify in the proceeding to establish heir-ship before the court, was disqualified under section 2 of the Evidence Act since he was a party adverse to the one suing as an heir. Eleanor Giovengo, in the case at bar, is in the same position as such witness was in the Diak case. As stated by Justice Burke in the Diak case, supra (at page 6): “To allow an heir to. testify in direct contradiction to another person’s claim of heir-ship is to afford him the opportunity of acquiring a greater portion of the estate than that to which he may otherwise be entitled.”

Since no evidence other than the testimony of the sister, Eleanor Giovengo, was offered in this cause in support of Frances Giovengo’s petition, we conclude that the trial court was correct in determining, on the basis of the record before it, that Carol White was the daughter of the decedent Walter A. Priebe, and the sole heir of said decedent. This cause will, therefore, be affirmed.

Affirmed.

STOUDER, P. J. and RYAN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. William J. Gavin, Defendant-Appellant.
    Gen. No. 68-93.
    Third District.
    April 29, 1969.
    John J. Kritzer and Kenneth E. Critser, of Monmouth, for appellant.
    Channing Pratt, State’s Attorney, of Monmouth, for appellee.
   STOUDER, P. J.

In January, 1968, Defendant William Gavin entered his plea of guilty in the Circuit Court of Warren County to the offense of driving under the influence of alcohol in violation of 111 Rev Stats 1967, c 95%, § 144(a). He requested probation and hearing was held thereon. Although the State’s Attorney and Probation Officer recommended probation, the request therefor was denied and defendant was sentenced to ninety days in the State Penal Farm from which sentence he has appealed.

At the hearing defendant introduced evidence of a psychiatrist who testified that defendant was a chronic alcoholic or suffering from the disease of alcoholism. Defendant originally filed his notice of appeal to the IIlinois Supreme Court on the theory that incarceration where alcoholism is involved violates the proscriptions in the State and Federal constitutions against cruel and unusual punishment. In June, 1968, the United States Supreme Court decided Powell v. State of Texas, 88 S Ct 2145, which rejected defendant’s argument. As a consequence thereof the Illinois Supreme Court transferred the case to this court and in view of the Powell decision we deem the constitutional question not now arguable.

At the hearing defendant presented evidence of his allegedly successful efforts at rehabilitation including the testimony of a representative of Alcoholics Anonymous. From the report of the Probation Officer it appears that the defendant was convicted of driving while intoxicated in 1963 and 1967. A similar charge in 1966 was reduced to reckless driving and in connection with his 1963 conviction defendant was placed on three years’ probation.

Defendant was sentenced under the provisions of HI Rev Stats 1967, c 95y%, § 144 (i) which provides in part “. . . On a second or subsequent conviction for an offense committed within 5 years after the commission of the first offense he shall be punished by imprisonment for not less than 90 days nor more than 1 year, and, in the discretion of the court, a fine of not more than $1,000. . . .”

In seeking to reverse his sentence, defendant argues that to jail an alcoholic is an abuse of the trial court’s power to grant or deny probation. Defendant’s argument is based primarily on the premise of his constitutional argument, namely that alcoholism is a disease and hence it is improper to incarcerate an alcoholic for any misconduct which is a consequence thereof or related thereto. In its nonconstitutional aspect defendant’s argument is directed at the alleged misapplication of the probation statute. Ill Rev Stats 1967, c 48, § 117 (a). Such section provides that except in certain enumerated cases the court may grant probation where one, repetition of the offense is unlikely, two, the public interest does not require the imposition of the penalty provided and three, rehabilitation of the defendant does not require the imposition of the penalty provided. Defendant argues that incarceration without treatment is futile and of no benefit or aid in rehabilitation. As insisted by defendant, incarceration is only one phase of the revolving door circle, i. e., drinking, arrest, conviction, incarceration, withdrawal, release, drinking, etc. Such argument assumes the inevitability of the cycle and further that compulsory withdrawal from the use of alcohol is unrelated to rehabilitation. Moreover, and indeed more importantly, such argument ignores the substantial interest that society has in avoiding or preventing the serious consequences caused by drunk drivers. It is defendant’s argument that in any case where the defendant is shown to be an alcoholic, recognizes that he is an alcoholic and, expresses the willingness to accept treatment, such defendant may not be sentenced to jail or, as insisted by defendant, any sentence under such condition is an abuse of the authority of the court.

We do not agree with defendant’s argument. In Powell v. Texas, supra, the Court affirmed the jail sentence imposed pursuant to a conviction for public drunkenness. Even the dissenting opinion in the aforementioned case recognized the necessity of society to protect itself against the hazards occasioned by persons driving while intoxicated and conceded that the objection of the minority to incarceration for public drunkenness did not extend to incarceration for driving while intoxicated. The “problem drinker” is not merely a problem to himself. As a driver he is a specific threat to other members of the public traveling the highways. The public cannot be reasonably expected to either ignore such hazard or respond with the admonition “please don’t drink and drive.”

Even if it could be said that incarceration of an alcoholic is not beneficially related to rehabilitation, the hazard posed to the public interest and the likelihood of repetition of the offense are equally important in determining the propriety of probation. Furthermore, we are unwilling to agree with defendant’s major premise, namely, that incarceration is entirely unrelated to rehabilitation. The increasing awareness of the problems of alcoholism has resulted in much public and authoritative discussion, but only tentative solutions or answers. The general view appears to be that rehabilitation or “cure” depends on whether the alcoholic desires to be “cured.” How such motivation can be promoted remains a question. Compulsory withdrawal from access to alcohol or the prospect of incarceration may promote an alcoholic’s desire to accept and respond favorably to treatment. In fact, the record discloses in the instant case defendant’s response may have been precipitated by the prospect of his incarceration. It should also be observed that the trial court had before it evidence of defendant’s previous convictions as well as the ineffectual result of a previous three-year probationary period. Under such circumstances it cannot be said that the court abused its discretion in concluding that incarceration was required.

No issue has been raised by defendant concerning the voluntariness of his plea of guilty or that such plea was induced by ignorance of the possible consequences thereof and as a result such issues are not before us.

For the foregoing reasons the judgment and sentence of the Circuit Court of Warren County are affirmed.

Judgment affirmed.

ALLOY and RYAN, JJ., concur.