author: MR. JUSTICE STAMOS ROSALYN MALDONADO,

text:
    Ramonita Galarza, a Minor, by Amelia Galarza, Her Mother and Next Friend, Plaintiff-Appellee, v. Lottie Melter, Administratrix of the Estate of Ella Randall, Deceased, Defendant-Appellant.
    Gen. No. 52,387.
    First District, Fourth Division.
    October 29, 1969.

      Morton H. Meyer and Gerrard and Gerrard, of Chicago (Michael A. Gerrard and Allen S. Gerrard, of counsel), for appellant.
    John G. Phillips, Grossman & Mitzenmacher, and Edwin A. Strugala, of Chicago (John G. Phillips and Edwin A. Strugala, of counsel), for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Ramonita Galarza, a 3-year-old child, was injured as a result of falling through an open bedroom window located on the second floor of the premises located at 1001 North Francisco Avenue in Chicago. The trial court directed the jury to find the issues in favor of plaintiff on the question of liability when defendant did not adduce any evidence but rested after plaintiff’s case was presented. The jury deliberated as to the award of damages and returned a verdict in the sum of $40,000. Defendant, the Administratrix of the Estate of Ella Randall, deceased, appeals and presents the following issues for review:

(1) the court erred in directing a verdict for plaintiff on the issue of liability;
(2) the court erred in the admission of hospital bills and X-rays into evidence; and
(3) the court improperly refused to instruct the jury regarding the credibility of witnesses.

Count I of the third amended complaint alleged that defendant’s decedent, Ella Randall, the landlady, was the owner of a multiple dwelling of three stories containing nine (9) apartments located at 1001 North Francisco Avenue in Chicago; that on February 1, 1961, Amelia Galarza, the child’s mother, entered into an oral agreement wherein the mother agreed to rent an apartment on the second floor at a monthly rental of $100 and that the landlady agreed to fully paint the apartment and repair all defective windows and window latches. It was further alleged that the agreement was made by the parties for the benefit of the child, but that the landlady failed to perform and refused to repair the defective window latches and that by reason of her negligence, as aforesaid, the minor child incurred personal injury.

Count II alleged the oral agreement to lease the apartment and the landlady’s knowledge that the Galarza family consisted of six children of tender years and that at the time the tenancy was agreed upon, the landlady knew that the window panes, frames, sashes and other parts of the windows were defective and in a dangerous condition. It was further alleged that the landlady had a duty not to lease the premises in this condition and had a duty to make repairs; that by reason of the landlady’s breach of her duty she negligently leased the premises knowing of the presence of minor children in the family; that with knowledge of the defective and dangerous conditions, she failed to repair or correct loose window frames, failed to install window locks and correct or repair faulty window sash cord or sash weight; and that by reason of the landlady’s negligence and, as a direct and proximate result, the minor suffered personal injury.

Defendant denied each and every allegation of the complaint, except that the minor child was 3 years of age.

ROSALYN MALDONADO,

testified for plaintiff:

The witness accompanied Mr. and Mrs. Galarza, the parents of plaintiff, when they sought to rent the premises. The witness is the sister of the minor’s mother, who did not speak English. The witness, her sister and brother-in-law met the decedent landlady who showed them the premises offered for rent. The landlady was advised that the family consisted of the parents and their six children. An examination of the premises revealed that all seven rooms needed paint, the windows lacked locks, the rooms lacked lights, and the toilet failed to flush. Mr. Galarza stood by the back bedroom window and in trying to open it, observed, “the window go straight to the top.” When Mr. Galarza touched the window, it would immediately go up. Mr. Galarza checked the windows in the other rooms and discovered that a window in the dining room would also rise and open to the top by merely touching the sash.

Mr. Galarza told the landlady that he would like to take the apartment if the landlady promised to fix everything in it, the windows, washroom, lights and some painting. The landlady said the rent for the apartment was $100 a month and if it were paid at that time, she promised to make repairs and send someone as soon as she could to fix the windows, lights and washroom because her janitor was too busy at the time to do the work. The landlady was paid the $100 and she promised to fix the windows, lights and the washroom. The windows lacked lock latches and were the upper-lower sash and weight balance type.

Two weeks later on February 1, 1961, Mr. and Mrs. Galarza and their children moved into the premises. The injury to plaintiff occurred on August 26, 1961. The witness lived nearby and visited the Galarzas daily and testified that none of the work promised by the landlady was ever performed. Mr. Galarza painted the premises when the landlady furnished the paint. (It was stipulated that the minor child fell out of the bedroom window.) On the day the child fell, the witness arrived at the apartment in response to Mr. Galarza’s screaming and observed that the bedroom window she examined on the day the premises were rented was in the same condition. She observed it was all the way up, the sill being two feet from the floor.

The witness further testified that she remembered that her sister never opened these windows in the summer time because her sister was afraid that the small children might fall out. Every day the witness visited the apartment she observed that her sister and brother-in-law never opened a window in any of the rooms. Angelo Galarza, father of plaintiff testified:

He discussed renting the apartment from the landlady. His wife and his sister-in-law Mrs. Maldonado were present. Two windows of six in the apartment would immediately rise to the top at a touch of the finger. He told the landlady he would rent the premises and she promised to fix the windows, toilet, lights, and also paint. After advising the landlady he had little children and she must fix the windows, she promised she would, after the Galarzas moved into the premises. He did nothing on his own about repairing the locks on the windows.

OPINION

Defendant initially contends that the court erred in directing a verdict against her, because the question of liability was a proper matter for the jury’s determination and, therefore, should not have been resolved as a matter of law. Plaintiff contends that the court properly directed a verdict, since the evidence overwhelmingly showed that the windows were defective and dangerous and the landlady failed to repair them and, as a consequence, the child fell out and was injured.

A directed verdict is proper if all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1968). In Ladd v. Ruck, 108 Ill App2d 379, 248 NE2d 147 (1969), the court stated at page 382:

“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.”

Defendant claims the window may have been deliberately left open for the circulation of fresh air. Plaintiff claims that the child must have touched the defective window causing it to rise just before the child fell out. This contention is premised upon the assumption that the undisputed testimony showed that all the windows in the apartment were always deliberately kept closed. However, an examination of the evidence reveals that only Rosalyn Maldonado testified that the windows were never deliberately raised. The parents did not, nor did any of their children, testify regarding any practice of keeping all the windows closed. 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. Ladd, supra. In Genck v. McGeath, 9 Ill App2d 145, 132 NE2d 437, (1956), where defendant offered no evidence, the court said at page 153:

“Even where there is no dispute in the evidence but where inconsistent conclusions may legitimately be drawn, the question is one for the jury. Panczko for Use of Enright v. Eagle Indemnity Co. of New York, 346 Ill App 144; Minters v. Mid-City Management Corp., 331 Ill App 64.” See also Ladd, supra.

Defendant further argues that the jury should have had an opportunity to weigh the testimony which depicted a family of eight persons living in an apartment where no windows were ever deliberately opened for approximately seven months, from February 1st to August 26th.

In Oliver v. Oliver, 340 Ill 445, 172 NE 917 (1931), at page 460, the court said:

“The witness may be contradicted by circumstances as well as by statements of others contrary to his own, or there may be such a degree of improbability in his statements as to deprive them of credit, however positively made.”

Since there was no direct evidence as to the immediate circumstances surrounding the incident, we believe disputed inferences could have been drawn from the evidence and the issue of liability should have been submitted to the jury.

Since we are reversing and remanding this cause, we need not consider the alleged errors in the trial pertaining to damages. We hereby reverse and remand this cause for a new trial.

Reversed and remanded.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DEMPSEY

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eugene White and Morris R. Smith, Defendants-Appellants.
    Gen. No. 52,542.
    First District, Third Division.
    October 30, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael D. Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

In a non jury trial the defendants, Eugene White and Morris Smith, were found guilty of armed robbery. White received a sentence of four to ten years; Smith three to ten years. On appeal, they contend that a pretrial identification was highly suggestive and that they did not knowingly and freely waive their right to a trial by jury.

At 1:45 a. m., December 4, 1966, two men held up a gasoline station located at 130 East 75th Street, Chicago. The men drove up in a black 1966 Pontiac Bonneville convertible. The passenger alighted from the car, displayed a gun and demanded money from Oliver Harris, an employee who was on duty at the time. He ordered Harris to go inside the station. The driver of the car got out and also entered the station. Harris gave the men about $60. A customer then pulled up and Harris, followed by the man with the gun, walked outside to take care of him. He serviced three cars in all, selling cigarettes but no gasoline to each. After waiting on the last customer, Harris handed over the rest of the money to the men and they left. The men had been at the well-lighted station about five or ten minutes.

On the night of December 5th, the police called Harris and asked him to come to the police station to identify two men who fit the description which he had given them. He arrived at the station about 11:30 p. m., and was taken to the cells where he looked into a cell which contained four men. After he left the cell area, the police asked him if he had seen the men who had robbed him and Harris replied that he had, “the short one and the taller one.” The identified persons were the defendants, White and Smith.

White and Smith had been arrested earlier that evening by a police officer who staked out a 1966 Pontiac Bonneville convertible which was similar to the one described by Harris. They were arrested as they entered the car. White claimed that the car belonged to a friend of his but could not name him.

Both defendants denied committing the robbery. They testified that they were drinking at a tavern on the night and early morning of the robbery. Smith said that he left the tavern about 1:30 a. m. with a girl friend and walked to his home a block and a half away. The girl friend’s testimony supported his, except that she said that they were at a different tavern. White testified that after Smith left the tavern he and a girl whose name he had since forgotten, walked next door to another tavern where they stayed about 15 or 20 minutes. At about 1:45 a. m. they entered the girl’s 1966 Bonneville, stopped for some food and drove to the girl’s residence. The girl told him that he could use the car until the next day. White dropped the girl off and drove home. He parked the car about 2:30 a. m. at the place where he and Smith were arrested the next evening. White claimed that an effort had been made to locate the girl, but that she could not be found.

Smith testified that he and White were locked in a cell with two other men. The police then took them out of the cell and brought them to the receiving area to be photographed. While their pictures were being taken, Harris entered and viewed them. White and Smith were the only prisoners present at the time.

At their trial, Harris identified the defendants as the persons who committed the robbery; he further testified as to the police-station identification. The defendants contend that under either Smith’s or Harris’ version of what took place at the police station the confrontation was highly suggestive — that testimony about it should not have been permitted, and that prior to the courtroom identification a hearing should have been held to determine whether or not the identification was tainted by the suggestive confrontation.

Smith’s version is claimed to be prejudicial because of the lack of other prisoners from whom Harris could choose and because of the suggestion of guilt arising from the act of the police photographing the defendants. Harris’ version is attacked because the cellmates were too dissimilar — one was of a different race and another looked younger than the others and was of a height in between that of the defendants. Harris’ version is further criticized because of the poor lighting conditions in the cell area. Harris admitted that the lighting “was not the best” and said that he did not know how the prisoners were dressed because it was “kind of dark,” but upon further questioning added that he did not pay attention to the clothing. He said he saw the men’s faces clearly but could not describe what the youngest appearing prisoner looked like because he “wasn’t too close” to him.

A confrontation for the purpose of identification may be so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant is denied due process of law. Whether or not a confrontation violates due process depends upon the totality of the circumstances surrounding it. Stovall v. Denno, 388 US 293, 18 L Ed2d 1199, 87 S Ct 1967 (1967) ; People v. Nelson, 40 Ill2d 146, 238 NE2d 378 (1968) ; People v. McMath, 104 Ill App2d 302, 244 NE2d 330 (1968). An in-court identification which is dependent on and influenced by an illegal pretrial confrontation is inadmissible. United States v. Wade, 388 US 218, 18 L Ed2d 1149, 87 S Ct 1926 (1967); see also People v. Nelson, supra; People v. McMath, supra.

Under the circumstances of this case, it is clear that the in-court identification was independent of and uninfluenced by the pretrial confrontation. At the time of the robbery, Harris viewed the defendants from five to ten minutes. Both defendants entered the station with him. One accompanied Harris while he waited on three customers. Thus, Harris’ opportunity to observe the defendants was sufficient to enable him to identify them independently of any suggestion arising from the police-station confrontation. People v. Speck, 41 Ill2d 177, 242 NE2d 208 (1968); People v. Thomas, 104 Ill App2d 56, 243 NE2d 611 (1968).

Other evidence in the case strengthened the identification and left no reasonable doubt as to the defendants’ guilt. Harris described the men’s height and weight to the police and the defendants substantially fit the description. The defendants were arrested entering a car similar to the one reported by Harris. The car belonged to a man, not to the girl who, White had said, loaned it to him.

The defendants next contend that their jury waiver was not knowingly and understandingly made because it was induced by an unfulfilled promise of an assistant State’s attorney to recommend one to six-year sentences. This point was first made in a motion to vacate and reduce the sentences received by the defendants. Their counsel explained to the trial court that his failure to object at the time the higher sentences were imposed was occasioned by the absence of the assistant who promised to recommend the lower sentences. In his argument in support of the motion, the defendants’ counsel stated that prior to trial he and the assistant had a conversation in which the assistant stated that he would recommend a sentence of one to four years in the event the defendants pleaded guilty and one to six years in the event they waived a jury and were found guilty. The assistant informed the court that he told the defendants’ counsel that if the defendants would plead guilty to the instant charge and to a second charge that was pending against them, he might possibly recommend a sentence of one to four years on the first; or if the defendants would waive a jury and were convicted on the first charge and would plead guilty to the second, he might possibly recommend a sentence of one to six years on the first charge.

The defendants’ counsel replied that after the conversation with the assistant, he reported the State’s offer to the defendants and they decided to waive a jury. He said his clients were prepared to withdraw their pleas of not guilty to the second indictment if they received one to six-year sentences on the first, but they changed their minds when another assistant State’s attorney, who had not participated in the agreement but who was the only assistant present at the sentencing, recommended much higher sentences and the court imposed the ones it did. He added that after this they were reluctant to even talk about pleading guilty. The motion to vacate and reduce the sentences was denied.

The discussion between the defendants’ counsel and the assistant State’s attorney resulted in a misunderstanding — a misunderstanding which when communicated to the defendants, could have misled them. Every person accused of an offense has the right to a trial by jury unless the right is understandingly waived in open court. Ill Rev Stats 1967, c 38, § 103-6; People v. Denson, 110 Ill App2d 451, 249 NE2d 728 (1969) (No. 52,909). In the present case the court advised the defendants of their right to a jury trial. They responded that they knew of their right but wished to waive it. Regardless of the fact that the defendants understood their right to a jury trial, they could have waived the right because they thought that one to six-year sentences would be recommended by the 'State. The problem is not just whether the State made a promise which it did not fulfill, but whether a misunderstood offer to make a recommendation was sufficient to induce the defendants to waive a substantial right. It has been held, for example, that if a defendant in pleading guilty is misled by his own attorney, he may attack his plea as induced by misrepresentation. State v. Rose (Mo), 440 SW2d 441 (1969); United States v. Mancusi, 275 F Supp 508 (1967).

The defendants analogize a jury waiver based on a promise to recommend a reduced sentence and a plea of guilty made under such influence. A prosecutor’s unfulfilled promise to recommend a low sentence, or a misrepresentation by the trial judge as to the sentence to be imposed, invalidates a plea of guilty. People v. Washington, 38 Ill2d 446, 232 NE2d 738 (1967); see McKeag v. The People, 7 Ill2d 586, 131 NE2d 517 (1956); see also People v. Walston, 38 Ill2d 39, 230 NE2d 233 (1967). A guilty plea, if induced by promises which deprive it of the character of a voluntary act, is void; a conviction based upon such a plea is open to collateral attack. Machibroda v. United States, 368 US 487, 7 L Ed2d 433, 82 S Ct 510 (1962); People v. Washington, supra.

The purpose of these rules is explained in Kercheval v. United States, 274 US 220, 71 L Ed 1009, 47 S Ct 582 (1927):

“A plea of guilty ... is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.”

A waiver of a jury differs in purpose and effect from a plea of guilty. The right to a jury trial is a privilege which a defendant may waive with consent of the court if the waiver is expressly and understandingly made. People v. Steenbergen, 31 Ill2d 615, 203 NE2d 404 (1964); People v. Wesley, 30 Ill2d 131, 195 NE2d 708 (1964). A defendant who waives his right to a jury trial does not admit his guilt. He is still entitled to a trial before the court and his innocence is presumed until his guilt is proved beyond a reasonable doubt. For these reasons, a prosecutor’s unfulfilled promise to recommend a reduced sentence need not invalidate a jury waiver, although the interest of justice may require a remandment for consideration of such a recommendation.

It is not necessary to remand this case to the trial court for consideration of the recommendation and for re-sentencing. This court has the power to reduce sentences. Ill Rev Stats 1967, c 110A, § 615(b) (4). The defendants in their motion to vacate asked the court to impose a one to six-year sentence on each of them. The State, in its brief before this court, asks that the sentences be reduced to one to six years if we find an unfulfilled promise to recommend such sentences. While we do not find an unfulfilled promise we do find a reasonable likelihood that there was a misunderstood agreement between the assistant State’s attorney and the attorney for the defendants. Any doubt of the defense attorney’s impression of the agreement should, in the interest of justice, be resolved in favor of the defendants since it was on the basis of his report to them that they waived a substantial right. This is, therefore, a proper case in which to exercise our power to modify the sentences. Fortunately, the defendants’ past work and criminal records do not hinder modification. White had one thirty-day sentence in the House of Correction; Smith had no prior criminal conviction. Both defendants were steadily employed at the time of the robbery.

The judgment of conviction is affirmed. The judgment as to punishment is modified by reducing the sentence for each defendant to a term of not less than one year and not more than six years in the State penitentiary.

Judgment modified and, as modified, affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: TRAPP, P. J.

text:
    Robert Saltzman, Plaintiff-Appellee, v. Steven Heineman, Defendant-Appellant. and Steven Heineman, Third-Party Plaintiff, Appellant-Appellee, v. Michael I. Brown, Michael Shaffer and Joel Kleinfeld, Third-Party Defendants, Appellees-Appellants.
    Gen. No. 52,584.
    First District.
    October 31, 1969.

      Heineke, Conklin & Schrader, of Chicago (William H. Schrader and Richard T. Sikes, of counsel), for appellant.
    Herbert F. Stride, William J. Harte, Hinshaw, Culbertson, Moelmann & Horan, and Howard French & Healy, of Chicago (John M. Moelmann, Dennis J. Horan, Richard G. French, and Russell V. Guilford, of counsel), for appellees.
   TRAPP, P. J.

Two separate appeals are involved. Steven Heineman, defendant, appeals from a judgment for $49,387.55 in favor of Robert Saltzman, plaintiff, in a personal injury suit. Third-party defendants, Michael I. Brown and Joel Kleinfeld appeal from a judgment against each third-party defendant in favor of third-party plaintiff, Steven Heineman, in the amount of $1,481.62. Since the judgments against the third-party defendants are judgments for contribution, all judgments would be affected by defendant’s contention that there was not sufficient evidence of the defendant’s involvement in the accident to submit the cause to the jury. The sole issue of fact on this question is whether the boat which struck the plaintiff was the boat operated by the defendant. A review of the evidence submitted upon this issue is necessary.

Plaintiff, with four friends, third-party defendants Brown, Shaffer and Kleinfeld, together with one Heuberger had rented a boat on Lake Geneva from which they took turns in water skiing. While plaintiff was in the water adjusting the skis two of the group asked to go ashore. Plaintiff was left with his skis and life jacket some 700 yards from the north shore and 200 yards from the west shore. While waiting in the water plaintiff was struck by a boat coming from the southeast and proceeding west toward Fontana. Plaintiff was rescued by the occupants of a nearby third party which had a skier in the water. Brown and Shaffer returned from the trip to the shore but could not find plaintiff. After searching for a few minutes they returned to Fontana.

The defendant, Heineman, was driving a Century Coronado inboard boat from the east end of the lake from Fontana at a speed of about 25 miles per hour. He was accompanied by Edelston, Stoll and Kagel. Their testimony agreed that they did not notice any bump or noise suggesting that the boat had struck an object in the water as they travelled this course. They had experienced instances when the boat hit logs or objects in the water.

The occupants of the boat which rescued plaintiff included three adults and a boy. Milne, who operated the boat, observed plaintiff in the water and the fact that the companions left in the boat. He also observed a boat coming from the southeast directly upon plaintiff, and Milne and those in his boat yelled and waved their arms in an attempt to attract the attention of those in the boat approaching plaintiff in the water. Milne observed the plaintiff in the water attempting to wave away the approaching boat and tried to raise a ski in the water to attract attention. Finally plaintiff made a dive in an apparent attempt to avoid the approaching boat, but it struck him. Milne observed that the two men in this boat did not look back but proceeded west at the same speed.

Mulligan, a companion of Milne, was a skier in the water. He also observed the approach of the boat from the southeast and the occupants of his boat waved their arms at something. The Milne boat returned to pick up Mulligan after rescuing the plaintiff.

Milne, Mulligan and Abe, the third adult, described the offending boat in substantially similar terms as an inboard boat approximately 20 feet long with white and brown or mahogany finish. Mulligan described a white dart design, which is corroborated, as a design on the boat defendant was operating. Plaintiff described the markings on the boat which struck him in similar terms.

When the Milne party, with the injured plaintiff, approached a pier at Fontana, they saw a Century Coronado tied up and refueling at the pier. It is not denied that one or more members of defendant’s party were accused of striking a skier in the water by a person or persons in the Milne boat as it came to the pier.

There is evidence that another Century boat of substantially the same color and size was tied up at the Gordie pier some 100 feet away. It does not appear in the record whether this boat also had the dart design described by the witnesses. Such design was not common to all Century boats. Huss, who operated the pier servicing the boats at issue, could not recall how long the second Coronado boat had been tied up at the Gordie pier, and he could not recall seeing any person near it.

While the testimony of witnesses concerning an accident can be expected to vary to a considerable degree and even to be in conflict in material respects, we think it is clear from the foregoing review that taking the reasonable inferences most favorable to the plaintiff, there was sufficient evidence from which the jury could find that the boat which struck the plaintiff was the boat driven by defendant, Steven Heineman.

The positive indications are that within a few minutes after defendant docked at the Fontana pier to refuel, a rescue boat arrived at the same pier with the injured plaintiff, who, at most, had been several hundred yards from this pier, containing three adult rescuers who were eyewitnesses to the fact that plaintiff was struck by a Century Coronado with an inboard motor with identical markings of the boat driven by defendant which boat was travelling in the same direction as defendant was driving. The scene described by the witnesses was not a crowded scene. Only one boat, and that travelling in the direction defendant travelled, was described. The marine pier attendant watched defendant come in, but does not state that others came in at that time. The boat defendant drove is the only one known to be travelling at the right place in the right direction at the right time with the right markings.

Neither do we find the fact that the eyewitnesses only observed one or two persons in the offending boat, when there were in fact four persons in the boat a serious obstacle to identification because two of the persons were lying down upon the seats and plaintiff, Saltzman, and eyewitnesses Milne and Mulligan saw two boys in the cockpit, which is where defendant and Steven Stoll were.

We do not think the jury was required to consider the observation of the presence of such a boat at the pier south of Duncan’s pier some time after the injured man was brought ashore as a complete obstacle to identification of the boat driven by the defendant as the offending boat. Where the known circumstances fit, the jury is not required to give equal validity to unknown circumstances that might fit if established.

We think the motion for directed verdict, based upon the lack of identification of the boat causing the accident, was properly overruled.

Complaint is next made of preliminary remarks of the court to the jury. It appears that while the court was explaining the contentions of the parties to the jury, counsel for defense interrupted the court and said: “May I be excused? We also contend it was not our boat.” The court replied: “Whatever the defenses are you folks will hear during the course of the trial.” The court then continued to explain the claims of the parties. The court was not requested to explain to the jury that proof of ownership of the boat was a part of plaintiff’s case as opposed to a defense. We cannot treat the general preliminary remarks as formally as instructions to the jury. The special verdict given to the jury clearly required the jury to first determine whether it was the Edelston boat which struck the plaintiff before considering the question of defendant, Steven Heineman’s negligence.

Defendant complains of restrictions in cross-examination of plaintiff concerning the color and markings of the boat which struck him. Out of the presence of the jury the court advised counsel that he could examine as to the questions and answers given in deposition. It is also asserted that the examination of the witness, Huss, was restricted. He was the operator of the marine service where the boat in evidence tied up. He testified that there were other boats probably identical to defendant’s boat in manufacture, color and size on Lake Geneva. The court sustained an objection to a question concerning boats of such description being at the pier on the day before and the day after the event at issue. . The ruling that the question was too remote from the period concerned was justified.

Complaint is made that plaintiff was allowed to elicit a conversation between an auburn haired boy and a dark haired boy. The witness was allowed to state that the dark haired boy said to the auburn haired boy: “Don’t you remember when we thought we hit a log?” He was also permitted to say that just after this the auburn haired boy said to the dark haired boy: “They’ll never make it stick.” This was permitted over the objection that defendant was not shown to be present. The witness had stated that the two boys had identified themselves as being occupants of the Century Coronado which was tied up at Duncan’s pier (the Edelston boat). The evidence shows that Edelston had auburn hair. All four boys in the Edelston boat had testified that they had not experienced impact between the boat and anything in the water. The alleged statement was made shortly after the accusation had been made, that this Century Coronado was the boat that struck a boy in the water. We think that the conversation by two persons identified as being occupants of the Century Coronado immediately after the accusation that the boat had struck a swimmer was in the nature of impeachment of the common statement of the occupants of this boat at the trial that they had no recollection of hitting any object in the water. While the trial court, in discussion with counsel, apparently erroneously construed the conversation as “a supposed admission,” there is nothing to indicate that the court’s view was communicated to the jury.

Complaint is made that “insurance” recovery was brought before the jury. Asked to describe the boat, the witness, Milne, made reference to interviews by insurance companies. No motion was made to strike the witness’ answer or to admonish the jury to disregard it. Nothing appears that would take it out of the category of an inadvertent remark by a witness to a legitimate inquiry. Such incidents have been held not to be the basis for a mistrial. Williams v. Consumers Co., 352 Ill 51, 55, 185 NE 217; Schaffer v. Dorsey, 70 Ill App2d 390, 217 NE2d 19.

The case was tried in terms of the Wisconsin statute and practice concerning comparative negligence. The basis for the claim of negligence by the third-party defendants was the violation of an ordinance governing swimming and boating on Lake Geneva. This ordinance declared that all areas of the lake were a boating and traffic zone, except for swimming zones within a specified number of feet of the shoreline or piers constructed in the lake. The ordinance also provided:

“4. No person shall swim more than 100 feet from the shore or more than 50 feet from any pier, anchored raft or boat unless he is accompanied by a boat. Such boat shall stay reasonably close to and guard such swimmer. If there is more than one swimmer, each shall be accompanied by a separate boat above described.”

The third-party complaint alleges that the plaintiff and his companions, the third-party defendants, were engaged in the common sport and pastime of renting and operating the boat and skiing and swimming, and that under the ordinance each was charged with the responsibility and duty to keep a lookout, warn other boats of a person in the water, and when in the boat to stay reasonably close to the swimmer in compliance with the statute. The court gave defendant’s instruction that the plaintiff and the third-party defendants had a duty to exercise ordinary care, each for his own safety and for the safety of each other.

Pursuant to Wisconsin comparative negligence practice, the jury was instructed in a special interrogatory that if they found certain parties, or all parties, negligent, and also that the boat operated by defendant struck the plaintiff, they must determine to what degree each person found negligent contributed to the causation of the injury. Pursuant to such interrogatory, the jury’s finding was as follows:

“Assuming the negligence of all parties found negligent to be a total of 100%, what percent of such total negligence do you attribute to the following named persons:
“ANSWER
“I Plaintiff Robert Saltzman 3.0%
“II Defendant Steven Heineman 85.0%
“III Steve Heuberger 3.0%
“IV Defendant Michael I. Brown 3.0%
“V Defendant Michael Shaffer 3.0%
“VI Defendant Joel Kleinfeld 3.0%”

Objection is made that plaintiff’s counsel, in commenting upon the special interrogatories which advised the jury that if it found defendant negligent, and also found the plaintiff and others negligent, it would have to attribute percentages of negligence to each one, stated that he hoped they would not attribute over five or ten percent negligence to plaintiff and a small percentage to others. Counsel said that to find a greater percent of negligence attributable to plaintiff would prevent him receiving that which was properly due him. In his concluding remarks, counsel for plaintiff asked the jury:

“To find that Bob Saltzman didn’t cause or contribute to this accident, to further find if he did his relative causation was between five and ten percent because if it is more it will have consequence and I think I would also ask you that in your good judgment you will award a total sum to Bob Saltzman between $75,000 and $100,000.”

It is claimed that this argument invited the jury to raise the amount of damages in proportion to the cornparative negligence found with respect to plaintiff. We do not find this inference in the argument. We find no suggestion that the jury, so to speak, manipulated the findings to reach a result beyond the law as in the City of Quincy v. Best Supply Co., 17 Ill2d 570, 162 NE2d 373 (1959).

The jury returned a verdict for injuries and special damages in the sum of $50,915. Complaint is made of the amount of the verdict. It is pointed out that there is no showing of loss of earnings or impairment of abilities, although it is granted that there is atrophy and a loss of power in the right hand. Dr. Cascino, a practicing neurosurgeon, testified that there was a depressed skull fracture with a piece of bone pushed in which required a craniotomy. He removed several small pieces of bone and some hairs that were laying on the surface of the brain. He could not replace the bone because he had reason to believe it was infected. He cleaned a blood clot from the brain, and noted that the dura or covering of the brain was torn probably % of one inch. A discolored spinal fluid was escaping. The hemorrhage was not in the brain but in the spinal fluid that circulates around the brain. He closed the opening in the dura.

There is now missing bone of the dimension 2 centimeters by 4 centimeters. The space is filled with scar tissue. While it is resistant, it is not as resistant as bone would be. Dr. Cascino testified that he was greatly concerned that for the last 18 months prior to 1966 the patient began noticing attacks which he described as fuzzy. He would become disoriented. The attacks would last about five minutes.

Dr. Cascino obtained brain wave reports which were normal for both waking and sleeping. The last of the fuzzy attacks was February 2, 1967. Dr. Cascino expressed an opinion that scar tissue undergoes changes, and that it could be a source of irritation that would not appear in brain wave tests. Scarring takes many years. He felt that the headaches the patient experiences could be the result of the involvement in the accident.

Dr. Cascino’s testimony was the only medical testimony presented. Under all the circumstances we are unable to say that the verdict is excessive.

It is argued that the proximate cause of the injury to plaintiff was the fact that he was swimming in Lake Geneva in violation of the ordinance and that such negligence, as a matter of law, should bar recovery. A somewhat similar argument is that the jury finding of causal negligence — three percent for plaintiff as against eighty-five percent charged to defendants, is so disproportionate that it cannot stand. Such argument must be viewed in the light of the clear testimony that the plaintiff was waving and yelling to attract the attention of the defendants and that the witnesses in the Milne boat were doing likewise. Plaintiff attempted to avoid the oncoming boat but did not succeed. We cannot say that as a matter of law that the jury’s apportionment of causal negligence was so erroneous as to require that it be set aside. Caldwell v. Piggly-Wiggly Madison Co., 32 Wis2d 447,145 NW 2d 745. Again, under the pleading and the matters in evidence, we cannot say that the court erred in denying the motion of the third-party defendants for a directed verdict.

The judgment order directs that plaintiff have and recover from the defendant, Heineman, the amount of the verdict ($50,915) less three percent attributable to the causal negligence of plaintiff, or the sum of $49,-387.55, but further provides that Heineman, as third-party plaintiff, have and recover the sum of $1481.62 from each of the third-party defendants.

Since the jury found the same percentage of causal negligence to each of the plaintiff and third-party defendants, plaintiff cannot recover from them. Walker v. Kroger Grocery & Baking Co., 214 Wis 519, 252 NW 721, 92 ALR 680.

Under the Wisconsin practice in comparative negligence, a plaintiff can recover the full amount of damages awarded from any defendant, but then must seek contribution from any or all other defendants. Bielski v. Schulze, 16 Wis2d 1, 114 NW2d 105. One tort-feasor may recover any contribution even though his causal negligence is greater than that of a joint tort-feasor. It is error to apportion judgment as between tort-feasors. Caldwell v. Piggly-Wiggly Madison Co., 32 Wis2d 447, 145 NW2d 745.

The Wisconsin statute providing comparative negligence has no direct application to the doctrine of contribution. Bielski v. Schulze, 16 Wis2d 1, 114 NW2d 105. Contribution is based on the common liability of joint tort-feasors to the injured party. It applies only when one joint tort-feasor pays more than his equitable share of the damages. Mutual Automobile Ins. Co. of the Town of Herman v. State Farm Mut. Automobile Ins. Co., 268 Wis 6, 66 NW2d 697. A defendant who is not more causally negligent than the injured party is not liable either to the injured party for damages, or to a joint tort-feasor for a contribution.

The defendant, Heineman, contends that there is no legal justification which, in fact, assigns the twelve percent causal negligence to the third-party defendants to him. It is perhaps ironic that defendant’s third-party complaint brings about the issue not complained of. The fact, however, that Heineman is not able to or entitled to collect contribution from the third-party defendants does not alter his liability for the amount of the judgment. Under the Wisconsin statute and practice plaintiff’s damages are diminished in the proportion of the causal negligence attributable to the plaintiff to the causal negligence óf all other participants. Plaintiff’s negligence is not corn-pared with that of a single tort-feasor to reduce recovery. Chille v. Howell, 34 Wis2d 491, 149 NW2d 600.

We have considered the many other errors urged by defendant but find nothing that calls for reversal of the judgment.

The judgment in favor of the plaintiff against the defendant, Heineman, is affirmed. The judgments in favor of Heineman as third-party plaintiff for contribution against third-party defendants are reversed as to those third-party defendants who appealed.

Affirmed in part, reversed in part.

SMITH and CRAVEN, JJ., concur.


author: MORAN, J.

text:
    Marlene J. McNulty, Also Known as Marlene J. Ryan, Plaintiff-Appellee, v. Robert P. Ryan, Defendant-Appellant.
    Gen. No. 52,818.
    First District.
    October 31, 1969.

      Hall, Borkenhagen & Gustafson, of La Grange (Richard W. Hall, of counsel), for appellant.
    Serhant & Svec, of Berwyn, and Donald E. Vacin, of Chicago, for appellee.
   MORAN, J.

Plaintiff-appellee filed an application in the Circuit Court of Cook County, under the Uniform Enforcement of Foreign Judgments Act (Ill Rev Stats, c 77, §§ 88-105), to register an Oklahoma divorce decree and to modify the child support payments granted under that decree. The Circuit Court found that the Oklahoma decree was duly registered, entered an order denying defendant’s motion to strike and reserved the issue of modification for a later hearing. Defendant appeals.

In her application for registration of the foreign judgment, plaintiff prayed for (1) registration of the Oklahoma divorce decree under the Uniform Enforcement of Foreign Judgments Act, (2) modification of the child support award granted under that decree based upon material change of circumstances, and (3) an allowance for attorney fees and other relief.

In its decree the court found the Oklahoma decree to be duly registered and reserved the issue of modification for a later hearing. Clearly, multiple claims for relief are involved in this action, Ariola v. Nigro, 13 Ill2d 200, 148 NE2d 787 (1958); Kazubowski v. Kazubowski, 93 Ill App2d 126, 235 NE2d 664 (1968); McGee v. McGee, 36 Ill App2d 105, 183 NE2d 545 (1962), and the trial court has entered a final judgment as to fewer than all of those claims.

Supreme Court Rule 304 provides:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.”

Since part of the claim for relief in this case is still pending in the trial court, and since the trial court made no express finding that there was no just reason for delaying appeal, Supreme Court Rule 304 requires that we dismiss this appeal on our own motion.

Appeal dismissed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MR. JUSTICE LEIGHTON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Tony Wilson, Defendant-Appellant.
    Gen. No. 52,851.
    First District, Fourth Division.
    October 29, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Professor James R. Thompson, Northwestern University School of Law, and Theodore A. Gottfried, Paul Bradley, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Joseph Roddy, Special Assistant State’s Attorney and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

Defendant was charged with burglary. A jury convicted him. He was sentenced to a term of five to ten years.

In the issues presented for review, defendant contends:

1. It was reversible error for the State to comment upon the absence of potential defense witnesses when they were neither related to, nor employed by the accused, and when the accused made no effort to explain their absence ;
2. Taken as a whole, the State’s closing argument was so improper as to deny accused a fair trial;
3. It was reversible error for the judge to give State’s instruction No. 9 on credibility while refusing to give defendant’s instruction No. 18 on credibility.

Evidence disclosed that Calvin Nance owned a grocery store in Chicago, Illinois. On Sunday, July 16, 1967, he locked it and left for a vacation in West Virginia. On July 19, at about 3:35 a. m., Chicago policemen Labiak and Ross were called to investigate a burglary. They went to the Nance address. According to Officer Labiak, he saw the defendant crawling out of a broken window of the building. While Labiak and Ross were on the scene, two other policemen, Schaffer and Biszewski, arrived. The defendant ran up an alley. The officers chased him. After a warning shot was fired by Schaffer, defendant came from underneath a. porch and was arrested. . No stolen property was found on defendant.

Sometime during July 19, Calvin Nance received a call from Chicago. He returned to the city and when he went to his store, he found windows boarded, stock missing, the place torn. The value of the missing stock was approximately $400. Nance testified that no one had permission to enter his place of business or remove any article from it.

Defendant testified that on July 19, at about 3:00 a. m., he was at the mouth of an alley, a half block from the Nance store, drinking rum and beer and shooting dice with five men. Defendant gave names of his five companions, saying, without detail, they all lived in the neighborhood. None were called to testify.

In argument to the jury, defendant’s counsel called attention to. what he said were discrepancies in testimonies of the four policemen who described the Nance store burglary on July 19, 1967. Defense argument stressed lack of credibility of the four officers. He urged the jury to acquit because the testimony of the officers could not support conviction.

In his closing argument, the Assistant State’s Attorney attacked defendant’s failure to call as witnesses any of his five companions and defended the four poljcemen. In the course of his argument, the Assistant State’s Attorney addressed one of the jurors by his name; and he complained about the interruptions of defense counsel saying that they “have thoroughly screwed up my argument.” The court then instructed the jury, giving State’s instruction 9 and refusing defendant’s instruction 18.

Defendant claimed that on the morning of July 19, 1967, he was not in the Nance store. He swore that when the four policemen came to the scene of the burglary he was drinking rum and beer and shooting dice with five companions at another place a short distance away. This defense was an alibi. In making this defense, and to establish the alibi, defendant injected into the case his activities with potential witnesses during the time of the burglary. His failure to produce any of these potential witnesses was a proper subject of comment by the prosecuting attorney in his argument to the jury. People v. Swift, 319 Ill 359, 150 NE 263; People v. Sanford, 100 Ill App2d 101, 241 NE2d 485.

Defendant’s counsel in arguing to the jury, attacked the credibility of the four policemen who testified for the State. He told the jury that the four witnesses were not believable. He suggested the policemen were not telling the truth. Fairly construed, the argument of the prosecuting attorney was responsive.

Where argument by the prosecuting attorney is provoked, if not actually invited, by remarks of defense counsel, a claim of error cannot be based on the response produced. People v. Smith, 24 Ill2d 198, 181 NE 2d 77; People v. Izzo, 14 Ill2d 203, 151 NE2d 329. The prosecuting attorney had the right to answer the argument made on behalf of defendant which suggested the four policemen were not telling the truth. People v. Hayes, 23 Ill2d 527, 179 NE2d 660.

It is impractical to lay definite guidelines for what may and what may not be said in argument to a jury. People v. Jenko, 410 Ill 478, 102 NE2d 783. What impropriety in jury argument will constitute ground for reversal depends on the language used and the circumstances of its use. A judgment will be reversed only when it is clear that improper remarks in argument influenced the jury in a maimer substantially prejudicial to the accused. People v. Stahl, 26 Ill2d 403, 186 NE2d 349; People v. Allen, 17 Ill2d 55, 160 NE2d 818.

Although we do not approve of the prosecuting attorney’s conduct when he addressed a juror by name, and we find the words indelicate when he referred to defense counsel’s interruptions as having “thoroughly screwed up my argument,” we attribute these remarks to the heat of advocacy. On both occasions objections were sustained. These two unrelated incidents did not prejudice the rights of defendant to a fair trial. People v. Woodley, 57 Ill App2d 380, 206 NE2d 743.

Nor was defendant prejudiced by the court’s rulings on instructions. The court gave State’s instruction No. 9 which told the jury that if defendant testified in his own behalf, they could not disregard his testimony merely because he was accused of crime. Defendant contends it was error for the court to give State’s instruction No. 9 and refuse his instruction No. 18 which, in part, would have told the jury that with regard to police officers, “. . . in determining the degree of credibility that should be accorded to their testimony, the jury have the right to take into consideration the fact that they are interested in the result of the case as well as their conduct and demeanor upon the witness stand. . .

State’s instruction No. 9 has been approved by the Supreme Court and by appellate courts of this State in a long series of decisions from Hirschman v. People, 101 Ill 568, to People v. Hartnett, 49 Ill App2d 357, 199 NE2d 671. We notice that the committee which prepared pattern jury instructions for criminal cases recommended an instruction on credibility of witnesses when a defendant testifies. The jury should be instructed that they should judge the testimony of a defendant in the same manner they judge that of any other witness. IPI — Criminal, § 1.02 (1968).

Defendant testified in his own behalf. State’s instruction No. 9 told the jury, to defendant’s advantage, that he had the right to testify; and that they could not disregard his testimony merely because he was accused of crime. This instruction is given in order to insure fair treatment of a defendant’s testimony when he testifies in his own behalf. In this case, the State tendered it and the court gave it. It was proper. People v. Flanagan, 338 Ill 353, 170 NE 265.

Giving State’s instruction No. 9 did not make it error to refuse defendant’s instruction No. 18. In Illinois Pattern Jury Instructions for Criminal Cases, § 3.19, on the subject of weighing police testimony, it is said, “The Committee recommends that no instruction be given on this subject.” IPI — Criminal, § 3.19 (1968). The trial court ruled correctly when it refused defendant’s instruction No. 18.

Our review of the record discloses no error. The judgment is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Henry Curry, Defendant-Appellant.
    Gen. No. 52,883.
    First District, Third Division.
    October 30, 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.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Henry Curry, was charged with the crime of murder of Jerry Davis. He waived trial by jury, and after a bench trial, was found guilty of murder and sentenced to the penitentiary for a term of 15 to 25 years. The sole issue presented on this appeal is whether defendant was proved guilty beyond a reasonable doubt. The facts follow.

On June 8, 1967, at about 11:00 a. m., defendant and deceased were together at the home of Sarah Bamberg in Evanston, Rlinois. Both men had been dating Sarah. She started going out with defendant after deceased entered the military service. When deceased came home on leave, the two men quarreled over the girl, and at least once, the deceased, who was 6' 2" tall and weighed 180 pounds, beat up defendant, who was 5' 6" tall and weighed 155 pounds. On the day in question, the two men drank whiskey together at the girl’s home. Deceased, who was intoxicated, left the home first, and then defendant and Sarah went for a walk. As they walked down the alley behind the girl’s home, the deceased pulled up behind them in his automobile. The two men quarreled, and defendant stabbed deceased in the stomach and side, causing his death. Deceased received three stab wounds. After the stabbing, defendant took the girl in deceased’s automobile to her sister’s apartment, where he was subsequently arrested. At the time of arrest, defendant told the police that deceased should not have pulled a knife on him. He also told police that deceased’s car struck him in the leg, and the police took him to the hospital for x rays because of his complaint. The police found an open knife in the deceased’s pants pocket. A few nights before the occurrence, defendant had burst into the Bamberg home and had started upstairs with a knife in his hand. Deceased was not in the home at the time.

Sarah Bamberg testified for the State that when deceased drove up behind defendant and her, he pulled up closely, but she did not hear the tires screeching. Deceased said that he wished to talk to the witness, but defendant said no. She walked about 6 to 10 feet away from the men, who were standing at arm’s length arguing with each other. She looked away for a moment, and when she looked at them again, defendant had a knife in his right hand, and stabbed deceased in the stomach. She did not see anything in deceased’s hands. After he was first stabbed, she saw deceased grab his stomach with both hands. When he put his hands down by his sides, defendant again stabbed him in the side. She had never known deceased to carry a knife, but she had seen defendant with a knife once or twice. At the apartment after the stabbing, defendant told her that he had not wanted to stab deceased, but that he had told deceased that if he ever drew a knife, defendant would get him. She also testified that after deceased fell down, defendant was kicking him in the stomach.

Defendant testified that deceased had beat him up twice prior to the day in question. On the morning of the occurrence, deceased and Sarah’s brother came to the Bamberg home with liquor. Defendant at first refused, then accepted a few drinks. Deceased left the home, but returned about 3:00 p. m., kicked down the bedroom door, and found Sarah and defendant in the bedroom. Deceased again left the home, and Sarah and defendant decided to walk to her sister’s home. In the alley, deceased drove his automobile up behind them real fast, and struck defendant in the leg. After words were exchanged, deceased pulled a knife out of his pocket, and started swinging it at defendant. Defendant dropped to one knee, took out his knife and when deceased ran up, he pushed the knife into deceased’s stomach. After he stabbed deceased the second time, defendant kneed him in the stomach and struck him with his fist, but did not kick him. Defendant also testified that, after the second stabbing, deceased put his knife into his pants pocket.

A neighbor testified that she heard a car come to a screeching halt. She then heard two men arguing loudly, and when she went to look, she saw a man lying in the alley with another man kicking him in the stomach and hitting him on the head.

Defendant’s sole contention is that he was not proved guilty of murder beyond a reasonable doubt, arguing that he was justified in killing the deceased on the grounds of self-defense, and because deceased was the aggressor.

The Criminal Code, Ill Rev Stats 1965, c 38, § 9-1 (a) defines murder as:

“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
“(1) He either intends to kill or do great bodily harm ... ; or
“(2) He knows that such acts create a strong probability of death or great bodily harm . . . .”

A reviewing court will disturb a finding of guilt only where the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. People v. Crews, 38 Ill2d 331, 231 NE2d 451 (1967).

Defendant does not challenge the credibility of the State’s witness, Sarah Bamberg. Rather, he argues that, assuming her testimony to be true, and considering his evidence of self-defense, he was not proved guilty beyond a reasonable doubt. We do not agree. Sarah testified that deceased pulled up in his automobile, wishing to talk to her. The two men began to argue. She stepped back a few feet, and turned away for a moment. When she looked back at the men, defendant had a knife in his hand, and stabbed deceased in the stomach. She saw no knife in deceased’s hand. She specifically stated that after he was stabbed the first time, deceased grabbed his stomach with both hands. He then dropped his hands to his sides, and defendant stabbed him again. Sarah had an excellent view of the daylight incident from a few feet away. Although she turned her head momentarily, her testimony was clear and unshaken that deceased displayed no knife. Defendant’s version, which if believed would support a finding of self-defense, merely created a conflict in the evidence, and did not of itself create a reasonable doubt. People v. Hobbs, 35 Ill2d 263, 220 NE 2d 469 (1966). Defendant’s contention that Sarah may have overlooked deceased’s knife was rebutted by her unequivocal testimony that she observed deceased’s hands during the altercation. Moreover, defendant testified that deceased put his knife away only after he was stabbed twice, was kneed in the stomach and struck on the head. Such testimony seems highly improbable.

A case cited by defendant, People v. Honey, 69 Ill App2d 429, 217 NE2d 371 (1966) is not factually controlling. In that case, the witness only observed defendant inflict the fatal blow, then attempt to revive the victim, and was unable to testify to. any of the prior circumstances of the altercation. In the instant case, Sarah was most familiar with the surrounding circumstances of the dispute. She witnessed nearly the entire occurrence, not only the preliminary quarrel, but also the stabbings, and the attack administered by defendant after the deceased was felled.

Defendant also argues that he had no reason to attack the deceased. However, it is well settled that the State need not prove defendant’s motive in order to sustain a conviction for murder. People v. Mangano, 375 Ill 72, 30 NE2d 428 (1940); People v. Hobbs, supra. Additionally, the rivalry between the two men over Sarah, coupled with defendant’s injured pride over the previous beatings, could well have supplied a motive for defendant’s conduct.

. [4] Defendant’s contention that deceased was the aggressor because he was intoxicated cannot stand in the face of Sarah’s testimony that deceased did not display a knife and merely wished to talk to her. Sarah’s testimony gave no indication that deceased was the aggressor. There was a conflict in the testimony between Sarah and defendant, and. the trial court properly resolved that conflict. We find that defendant was proved guilty of murder beyond a reasonable doubt.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: GOLDENHERSH, P. J.

text:
    Bee Chemical Company, a Corporation, Plaintiff-Appellee, v. Service Coatings, Inc., a Corporation, et al., Defendants-Appellants, Uniroyal, Inc., Intervenor.
    Gen. No. 53,254.
    First District.
    October 31, 1969.

      Charles J. O’Laughlin and William A. Snow, of Chicago (Raymond, Mayer, Jenner & Block, Charles J. O’Laughlin, William A. Snow, Esq., Rummler & Snow, of Chicago, of counsel), for appellants.
    Woodson, Pattishall & McAuliffe, Beverly W. Patti-shall, Lawrence, Goldberg, Lawrence & Lewin, A. Charles Lawrence, for appellee.
    James E. Hastings, Joseph V. Giffin, of Chicago (Chad-well, Keck, Kayser & Ruggles, of counsel), for Uniroyal, Inc., as amicus curiae.
   GOLDENHERSH, P. J.

Defendants, Service Coatings, Inc., a corporation, hereafter called Service Coatings, Robert W. Moore, Robert A. Bukvich, Ronald Widing and Caryl Wieneke, appeal from the order of the Circuit Court of Cook County finding them guilty of contempt for failure to comply with certain discovery rules and orders.

In its amended complaint, in seven counts, plaintiff, inter alla, alleges that the individual defendants were formerly in its employ, while so employed they acquired plaintiff’s secret formulas and other secret information, and thereupon left its employ to become officers and agents of the “newly formed” corporate defendant. Plaintiff alleges further that defendants are wrongfully using its trade secrets in the manufacture of certain products used by the automobile industry.

Following service of notice to take depositions and request for production of documents and other matters, defendants moved for a protective order preventing “divulgement of its formulations.” Other motions, to limit discovery, not here material, were filed by all parties, and the trial court entered a comprehensive order which included the following:

“13. Defendants produce, under Paragraph 6 of plaintiff’s Supplementary Notice of Taking Depositions, all formulae, indicating component ingredients, for products manufactured or sold by Service Coatings, Inc., to the ‘auto-soft’ industry. Said formulae are to be given to counsel for plaintiff and shown only to Richard E. Jarzombek, Glenn K. Short, Thomas E. Hayden and Victor H. Rampelberg, plaintiff’s employees assisting counsel for plaintiff in this case, and said formulae are to be used only for purposes of this case. Plaintiff may supplement this order specifying persons who may examine said formulae by naming outside experts to defendants within sixty days of the beginning of trial.
“14. Plaintiff produce, under Paragraphs 1 and 16 of defendants’ Supplementary Notice of Taking Depositions, all formulae, indicating component ingredients, developed on or before September 21, 1965, for products manufactured and sold by Bee Chemical Company to the ‘auto-soft’ industry, together with any memoranda of changes in formulae developed on or before September 21, 1965. Said formulae and changes in formulae are to be given to counsel for defendants and shown only to the individual defendants and Arthur Kopisch, president of the corporate defendant, and said formulae and changes in formulae are to be used only for purposes of this case. Defendants may supplement this order specifying persons who may examine said formulae by naming outside experts to plaintiff within sixty days of the beginning of trial.
“15. The Court also grants a protective Order to both parties so that their trade secrets shall remain trade secrets, and each party has a mutual restriction from using the formulae obtained from the other.”

Defendants moved to vacate the order, the court heard testimony, denied the motion, and directed defendants to comply with its order. Defendants refused to produce the formulas, plaintiff moved for the imposition of sanctions, defendants admitted the material allegations of plaintiff’s motion, the court found them in contempt of court, imposed a fine, and this appeal followed.

Shortly before the imposition of sanctions, Uniroyal, Inc. filed a petition for leave to intervene. The record does not reflect a written order allowing the petition, however in colloquy between court and counsel the court stated the petition was allowed. The status of Uniroyal in this appeal will be discussed later in the opinion.

The evidence shows that the formulas in question are used to produce a lacquer type coating for a vacuum-formed automotive door panel. This type of panel is one of a number of products used in the automobile industry and classified as “auto-soft.”

In support of defendants’ motion to vacate the order, defendant Moore, vice-president of Service Coatings, testified that he had been employed for 13 years by United States Royal Rubber Company, now Uniroyal; during the last six years of his employment he was in charge of research; his work was principally with polymers, the same generic class of materials as are here involved, and was directed toward development of lacquer type materials. He left that position and entered plaintiff’s employ. He was employed by plaintiff for two years, terminating in September 1965. After leaving plaintiff’s employ, he organized Service Coatings. He described differences between the processes used by plaintiff and defendant, Service Coatings; Service Coatings submitted several materials to Uniroyal and after rejection “made some fairly radical departures from standard lacquer technology and submitted materials that looked fairly promising.” Several were rejected, and finally one met the specifications. He stated that when he and the other defendants left plaintiff’s employ, these coatings were not commercially available; at that time one raw material was available only as a pilot plant product, and other materials now utilized were not on the market.

He denied that knowledge of plaintiff’s formulas was of value in the discovery of a satisfactory product. He admittedly knew plaintiff’s formulas for a coating for vacuum formed products but was not familiar with any of plaintiff’s formulas specifically for vacuum formed door panels. He stated his knowledge of the substrate material to which the coating is applied, gained in his employment by Uniroyal, was the chief factor in his success.

Charles O’Shinski, employed at Uniroyal’s plant in Chicago from 1952, plant manager from 1957 until shortly before the hearing, and now employed at UniroyaPs Port Clinton plant, testified that defendant, Service Coatings, after several submissions which were not satisfactory, had since early 1966 been delivering a coating which met the specifications of the customer for whom Uniroyal made the material used in the door panels. Uniroyal also purchased coatings from plaintiff, but plaintiff had not submitted a coating which met the specifications of UniroyaPs customer. He also testified that in a phone conversation with Moore it was agreed that Service Coatings would not, without UniroyaPs consent, sell the coating to anyone other than Uniroyal, although Uniroyal was free to develop other sources of supply.

Mr. Moore’s version of the agreement is somewhat different, and he testified it was made at a luncheon meeting.

Jack Padgitt, process control manager for Uniroyal, testified with respect to tests of the products of plaintiff and defendant, Service Coatings. He testified that Uniroyal had obtained waivers of certain specifications from its customer in order to enable Service Coatings to get into production. He stated he had told Thomas E. Hayden, plaintiff’s vice-president, he could not prove by tests there was a difference, insofar as pliability is concerned between plaintiff’s coatings and those made by defendant, Service Coatings, however, General Motors, UniroyaPs customer, accepted the product made with defendants’ coatings and rejected that made with plaintiff’s coatings.

In opposition to the petition to vacate, T. E. Hayden, plaintiff’s vice-president, testified plaintiff made submissions to Uniroyal for coatings for a vacuum formed door panel. He stated Mr. Padgitt told him plaintiff’s N894 formula was satisfactory in every respect, however, he chose not to use it unless plaintiff could make the coating more pliable. Plaintiff sold some of the coating to Uniroyal. The general type of formula for the coating was developed in the fall of 1965, the accepted submission (plaintiff’s formula N894) was offered Uniroyal in July or August of 1966, and the sales were made in January and March 1967.

M. A. Self, plaintiff’s president, recounted the history of the development of plaintiff’s formulas as applicable to auto-soft products from 1956 to the time of the hearing. Plaintiff’s first sales of coatings for the type of vacuum formed stock involved here were in 1956 or 1957, although it had sold coatings for a more rigid form of the product in 1954. It had sold coatings for vacuum formed door panels to O’Sullivan Rubber Co. in 1962. In total, plaintiff’s personnel had spent twelve man years in the development of the formulas.

Defendants contend the record shows Service Coatings’ formulas are unique, the order to produce is based on plaintiff’s “unsubstantiated allegation” that its secrets had been appropriated, and disclosure of the formulas will destroy their value. They also argue that discovery should be deferred until the court can better appreciate the merits of plaintiff’s claim.

The purpose of discovery is the ascertainment of truth and the expedition of the disposition of litigation. Monier v. Chamberlain, 35 Ill2d 351, 221 NE2d 410.

Supreme Court Rule 219 vests the trial court with broad discretionary powers including the power to compel obedience to its orders by contempt proceedings. People ex rel. General Motors v. Bua, 37 Ill2d 180, 226 NE2d 6. Its orders, as with other discretionary matters, should not be disturbed, unless a reviewing court can say that its discretion has been abused.

Counsel have not cited, nor has our research disclosed, an Illinois authority precisely in point. There are, however, Federal decisions, and a New Jersey case which are of precedential value. In Grasselli Chemical Co. v. National Aniline & Chemical Co., Inc., 282 F 379 (USDC NY) the court ordered the defendant to answer interrogatories. At page 381 the court said:

“The defendant, however, urges that it should not be required to disclose its secret processes. No doubt the situation is difficult, on the one hand, to secure the plaintiff’s right to get relevant evidence, and, on the other, to protect the defendant from disclosing secrets which are not material. In the end, the right of the plaintiff to bring out the truth must prevail, in so far as the inquiry is honestly limited to the actual issue of infringement.”

In Melori Shoe Corp. v. Pierce & Stevens, Inc., 14 FRD 346 (USDC Mass) the defendant objected to interrogatories propounded by the plaintiff contending that under Eule 30(b) of the Federal Eules of Civil Procedure “secret processes, developments, or research need not be disclosed.” In overruling the objections the court said at page 347:

“While defendant has a legitimate interest in the protection of its trade secrets, that interest must yield to the right of the plaintiff to discover the full truth of the facts involved in the issues of the case.”

In Bead Chain Mfg. Co. v. Smith, 1 NJ 116, 62 A2d 215 (Supreme Court of New Jersey) plaintiff sought to enjoin defendants from manufacturing and selling products which it alleged embodied trade secrets acquired by defendant, Smith, while in its employ. Plaintiff applied for an order to inspect certain machinery, tools, dies, layouts charts and formulas used by defendant. The application was denied. The Supreme Court of New Jersey reversed and in so doing said at page 216:

“While each case must be dealt with according to its own peculiar circumstances, we are impressed here by the fact that the defendant Smith after leaving the plaintiff’s employment formed the defendant corporation, of which he is still the president, to manufacture the same line of goods as are produced by the plaintiff. Manifestly, the information which the plaintiff seeks to obtain by means of inspection is essential to a determination of the truth of the matters charged in the bill of complaint. It is information which it would be extremely difficult, if not impossible, for the plaintiff to prove without accurate data as to defendants’ methods of manufacture. It thus appears that an inspection of the defendant corporation’s property would aid in ascertaining the rights of the parties, and the present application therefore clearly falls within the scope of RS 2:99-2, NJSA, which gives the trial judge the power to order an inspection at such time and under such regulations as he shall prescribe. Such also is the spirit and contemplation of the provisions of our new rules concerning discovery and inspection of documents and property, Rules 3:34-1, 3:26-2.
“It is urged by the defendants that the allowance of an order to inspect will result in the disclosure to the plaintiff of the secrets and confidential working practices used in the manufacturing operations of defendant corporation. This argument overlooks the policy of the statute under which this application is made as well as the present express authority contained in the rules empowering the trial court to make such orders as will reasonably and appropriately safeguard the rights of the defendants, Rule 3:30-2. The presentation of the truth to the court is paramount; it must proceed unimpeded and unhampered despite claims of prying, where, as here, there exists the means of affording adequate protection against unwarranted intrusion and invasion of the rights of one party by another party.”

The testimony shows there is no practical method of discovery of Service Coatings’ formulas from analysis of the product, and disclosure of the formulas is the only method of ascertaining the truth. In our opinion the trial court’s order, as contemplated by Supreme Court Rule 201 (c) (1), provides adequate safeguards for defendants’ interests, and the order will be affirmed.

Defendants argue that the testimony of T. E. Hayden shows he was to be separated from plaintiff shortly after the hearing, and this demonstrates that limiting disclosure to a small number of designated individuals does not adequately safeguard defendant, Service Coatings’ formulas. In our opinion the matter can be dealt with by a simple modification of the order.

In its “amicus curiae” brief, Uniroyal argues the trial court abused its discretion in entering the order from which defendants appeal, and in refusing to permit Uniroyal to be heard before reaching its decision. Uniroyal has no standing as an appellant because the only order entered by the trial court affecting its rights is the allowance of its petition for leave to intervene. “An amicus curiae is ‘not a party to the action, but is merely a friend of the court whose sole function is to advise, or make suggestions to, the court.’ ” Clark v. Sandusky, 205 F2d 915, 917. Under the definition cited, Uniroyal fails to qualify. We have nevertheless considered its contentions and find nothing in the authorities cited or its argument which persuades us that the trial court, in entering the order for disclosure, abused its discretion.

After careful examination of the record, we deem it appropriate to quote from People ex rel. General Motors Corp. v. Bua, 37 Ill2d 180, 226 NE2d 6, wherein the court said at page 197 “. . . we believe the trial judge has exercised extreme patience in this case, and it is to be hoped that counsel will adopt a spirit of cooperation with regard to further discovery so that all material matters will be expeditiously produced in order that the truth seeking purposes of the rules will be served.”

For the reasons set forth the order of the Circuit Court of Cook County in holding the defendants in contempt is affirmed.

Affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie E. Virgil, Defendant-Appellant.
    Gen. No. 53,634. (Abstract of Decision.)
    First District, Third Division.
    October 30, 1969.
    Albert Brooks Friedman, of Chicago, for appellant; no appearance for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas Brown, Defendant-Appellant.
    Gen. No. 53,950.
    First District, Fourth Division.
    October 29, 1969.

      Arthur J. Schoenfeld, of Chicago (Louis Carbonaro, of counsel), for appellant.
    William J. Scott, Attorney General of State of Illinois, of Springfield (Fred G. Leach, Assistant Attorney General, Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, and Elmer C. Kissane and Michael D. Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

Thomas Brown and James Perry were charged with unlawful sale of a narcotic drug. After a non jury trial, Perry was acquitted; Brown was convicted. Post-trial motions were overruled; and Brown was sentenced to serve a term of not less than ten years and not more than ten years and one day.

Brown, referred to hereafter as the defendant, appeals to this court contending that (1) the finding of guilty was based on prejudicial and incompetent evidence; and (2) the evidence failed to prove him guilty beyond a reasonable doubt as required by law.

These contentions arise from events which began at noon on October 19, 1962. An informer named Charles Perry, also known as James Dunn, hereafter referred to as the informer, went to the Central Police Station in the City of Chicago and spoke with Officers Edward Jackson and Joseph Johnson of the Narcotic Unit. The informer was known to the two officers. After some conversation in the station, Jackson and Johnson took the informer to the corner of 51st and State Streets where they were joined by three other policemen. The informer was taken to a parking lot, searched, and found free of narcotics or money. He then was given money consisting of a $5 bill and five $1 bills. The serial numbers on the bills were recorded on a list retained by the officers. Then, the informer and Officers Jackson and Johnson drove to the corner of 47th Street and Drexel Boulevard.

From that point, the informer walked west on 47th Street to a tavern called “The Nugget” looking for the defendant. He was not there. The informer then walked westerly on 47th Street to Evans Avenue. According to the informer (who testified on behalf of the State), the defendant was standing on the corner. He told defendant he “wanted to get two bags.” Defendant told the informer to follow him into a poolroom nearby where, on defendant’s instructions, Perry gave the informer two tinfoil packages later found to contain heroin. The informer gave defendant the ten dollars of prerecorded money. He then left the poolroom, met Officer Jackson a short distance away, gave him the two tinfoil packages and descriptions of the two men he said sold the packages to him. A few minutes later, defendant was arrested in the poolroom, and Perry a short distance away. In defendant’s possession was found the prerecorded money. Defendant and Perry were then taken to the Central Police Station where at around 2:00 p. m. the informer identified them as the two men with whom he had dealt inside the poolroom, but out of sight and presence of the police officers.

First, it is contended that the finding of guilty was based on prejudicial and incompetent evidence consisting of uncorroborated testimony of the informer that defendant sold him narcotics on a prior occasion. This evidence was elicited when defendant’s counsel cross-examined the informer. Careful reading of the proceedings discloses that it required pointed cross-examination to draw the testimony which it is contended was prejudicial. No objection was made to the answers given, nor was there any motion to strike the evidence now claimed to be offensive.

It is a well-settled rule that prejudicial statements which a defendant invites by cross-examination do not constitute reversible error. People v. Thigpen, 33 Ill 2d 595, 213 NE2d 534; People v. Burage, 23 Ill2d 280, 178 NE2d 389, cert den 369 US 808, 82 S Ct 651. It is also well settled that the prosecution is not responsible for questions asked its witnesses by a defendant’s attorney, nor for the responses its witnesses give under cross-examination. People v. Burage, supra; People v. DeBerry, 62 Ill App2d 323, 211 NE2d 26.

Defendant’s second contention is that he was not proved guilty beyond a reasonable doubt. First, it is argued that the evidence on which the trial court based its finding of guilty was mainly the testimony of an addict-informer whose conduct in making the “controlled buy” was not surveilled and whose testimony was not corroborated.

Absence of total surveillance by the officers goes only to the weight of the informer’s testimony. People v. Frank, 51 Ill App2d 251, 201 NE2d 197. Therefore, we find no merit in the argument that attacks the sufficiency of the evidence on this ground. Likewise, we find no merit in the argument that the testimony of the informer was not corroborated. Finding of the marked money on defendant was at least corroborative of the informer’s testimony concerning the ten dollars. People v. Hines, 30 Ill2d 152, 195 NE2d 712. In the context of the facts of this case, therefore, defendant’s reliance on People v. Bazemore, 25 Ill2d 74, 182 NE2d 649 is misplaced.

Second, it is argued that when the trial judge acquitted the codefendant because, as he stated for the record, he disbelieved an important part of the addict-informer’s testimony, there was no evidence of delivery of the narcotics by the defendant. According to the informer, he met defendant on the corner of 47th Street and Evans Avenue. He told him that he wanted to get two bags. He swore that he followed defendant into the poolroom where he gave him the $10, but at defendant’s direction the two bags of narcotics were given to the informer by the codefendant Perry. It was this latter testimony of the informer concerning delivery of the narcotics that the trial judge disbelieved when he said, “I don’t believe the informer is telling the truth when he says he paid the money to Brown and Brown told Perry to hand him the narcotics.” Disbelief by the trial judge of the only evidence that proved delivery of the narcotics, a disbelief expressed by a conclusion that the informer was not telling the truth in this regard, does not have the legal consequence claimed by defendant.

The indictment charged unlawful sale of a narcotic drug. The definition of “sale” in the Uniform Narcotic Drug Act includes making an offer of sale. Ill Rev Stats (1961), c 38, § 22-2-(1). “[A] mere gift, a simple offer or agreement to sell, or the delivery to one who has agreed to purchase, constitutes a sale of narcotics, notwithstanding the fact that no consideration is paid, or that the sale is not fully completed by payment of the agreed price.” People v. Robinson, 14 Ill2d 325, 332, 153 NE2d 65. (Emphasis supplied.)

The record includes much testimony of the informer which the trial judge believed when he said, “I think the State has made an ironclad case against Thomas Brown.” This includes the informer’s testimony that he told defendant he wanted two bags of heroin, to which defendant replied, “follow me.” The informer testified he gave the ten dollars to defendant; and this testimony was corroborated by discovery of the prerecorded bills on defendant’s person by the police. From the comments of the trial judge concerning the evidence, it appears clear that it was only inclusion of the codefendant in the delivery of the narcotics, without receipt of money by him and without corroboration of any kind, that caused the court’s disbelief. There is nothing in the record that indicates any doubt in the trial judge’s mind concerning the truth of the informer’s testimony insofar as it established an offer of sale of narcotics by the defendant. We conclude, therefore, that defendant’s guilt was established beyond a reasonable doubt. People v. Frank, 51 Ill App2d 251, 201 NE2d 197.

Judgment is affirmed.

Affirmed.

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