author: GOLDENHERSH, J. MORAN, J., EBERSPACHER, J.,

text:
    John W. MacCarthy, Plaintiff-Appellant, v. Marshall L. Skelcher and Martha E. Skelcher, Defendants-Appellees.
    Gen. No. 69-11.
    Fifth District.
    July 23,1970. .
    Rehearing denied, August 25,1970.

      EBERSPACHER, J., dissenting.
    Kenneth Powless, of Marion, for appellant.
    Harris, Holbrook, & Lambert, of Marion, for appellees.
   GOLDENHERSH, J.

Plaintiff appeals from the judgment of the Circuit Court of Williamson County entered in favor of defendants following a trial before the court and without a jury.

Plaintiff’s complaint alleges he is a licensed real estate broker, that he and defendants entered into a written agreement under the terms of which defendants agreed to pay him the sum of $15,000 as compensation “for his services and procuring a purchaser” for certain property owned by defendants, he procured a purchaser for the property “in accordance with the said contract,” and the same was consummated by defendants.

Defendants answered alleging no sale was consummated, plaintiff did not procure a purchaser ready, willing and able to buy, the alleged purchasers were defendants’ customers not procured by plaintiff, and alleging four special defenses which will be discussed only to the extent necessary to this opinion.

The agreement attached to plaintiff’s complaint provides that defendants agree to pay plaintiff $15,000 for selling the Lake View Hunt Club for $165,000 to one of his clients, and if defendants sell the club themselves to someone who is not plaintiff’s client, no commission will be owed. The agreement was to be in force for a period of 45 days commencing on October 16, 1967.

Although the testimony is conflicting as to the details, the evidence shows that defendant, Marshall Skelcher, put plaintiff in touch with individuals with whom Skelcher had been dealing. On November 3, 1967, a document headed “OFFER TO PURCHASE AND DEPOSIT RECEIPT” was executed by plaintiff as “broker” acknowledging receipt from “Devil’s Kitchen Hunt Club, Inc., a proposed corporation,” of a note in the amount of $90,000 to be secured by a first mortgage on the premises, and indicating that $75,000 in cash was to be paid in 120 days. The instrument is executed on behalf of the “proposed corporation” by its secretary (presumably also proposed) and the offer is accepted by defendants.

On November 8, 1967, defendants as sellers, and Jack P. Gibbs, Robert T. Turnage and William L. Grindle as buyers, executed a document headed “Contract for Purchase Agreement” in which defendants agree to convey to “Devil’s Kitchen Hunt Club Incorporated, party of the second part” real estate described,

“Provided and on condition that the party of the second part shall pay or cause to be paid to the party of the first part, as purchase money for said Real Estate, the sum of One Hundred Sixty-five Thousand ($165,000) dollars payable as follows: $90,000.00 first mortgage and notes with the Bank of Illinois, Mount Vernon, Illinois at 7% interest and 3 points for 120 days; and a $75,000.00 second mortgage at 7% interest and no points for (one year, MLS RRT) . . . payable to Marshall L. Skelcher and Martha E. Skelcher, Route 1, Makanda, Illinois. The first mortgage of $90,000 and the second mortgage of $75,000 will be signed for the Devil’s Kitchen Hunt Club Incorporated. Taxes for 1967 payable in 1968 will be prorated.
“Marshall L. Skelcher and Martha E. Skelcher will place a warranty deéd in escrow with the Bank of Illinois to be surrendered when final payment is made. In case said purchasers, party of the second part, refuse or neglect to enter into this contract within five days from date, this contract will be null and void.”

The agreement also contained a provision that Gibbs, Turnage and Grindle would sign as “accommodation makers with respect to $15,000.00 of the $90,000.00 first mortgage indebtedness.”

Thereafter on November 15, 1967, defendants executed and deposited with the Bank of Illinois at Mt. Vernon, a warranty deed conveying the land to Devil’s Kitchen Hunt Club, Inc. A mortgage purporting to secure a note in the amount of $92,700, due on March 15, 1968, naming Bank of Illinois as mortgagee, was executed by Devil’s Kitchen Hunt Club, by its president and secretary. A second mortgage executed by Devil’s Kitchen Hunt Club, Inc. to the same mortgagee, purportedly secures a note in the amount of $75,000, due November 15, 1968. Neither mortgage bears the imprint of a corporate seal and it cannot be determined from the record whether, in fact, such a corporation came into existence and if so, the State of incorporation. Gibbs, Turnage and Grindle executed a guaranty to the extent of $15,000.

An escrow agreement between Devil’s Kitchen Hunt Club, Inc. and Bank of Illinois was executed on November 15, 1967, which provides for the escrow of funds to be received from subscribers to the stock of an Illinois corporation to be known as Devil’s Kitchen Hunt Club, Inc.

It appears from the testimony that the deed and mortgages were placed of record. It does not appear that any stock was sold, and no funds were deposited with the Bank of Blinois under the escrow agreement.

Plaintiff testified that defendant, Marshall Skelcher, told him of the prospective purchasers and he proceeded to negotiate the transaction-which resulted in the execution of the documents.

Defendant Marshall Skelcher testified plaintiff had stated he knew prospective investors for the deal. He stated that in his conversation with plaintiff it was agreed that if plaintiff “found investors who contributed toward the $165,000.00 or paid it he was to receive a commission of $15,000.00,” otherwise he was not to receive a commission.

Plaintiff testified he knew the purchasers did not have the money to complete the transaction, but in view of the agreement for the execution of the two mortgages, no money was necessary.

The trial court found:

“(1) That the purchasers were the clients of Skelcher;
“(2) That the services of MacCarthy were accepted by Skelcher after the clients were known, by MacCarthy, to be Skelchers;
“(3) That MacCarthy knew or should have known of the promotion plan and organization involved in this transaction and that he accepted the risk of his fee with this promotional arrangement;
“(4) That MacCarthy thus became a participant in this promotion and his fee became contingent upon its success;
“(5) That the promotion plan failed. MacCarthy’s prayer for a fee must be denied; and, therefore, enters judgment in favor of the defendants and against the plaintiff.”

and entered judgment for the defendants.

Plaintiff contends that the court erred in admitting, over his objection, testimony of the alleged agreement with respect to the promotion of investment funds. He argues that the admissible evidence shows the only modification of the listing agreement to be defendants’ waiver of the provision that no commission was due if the buyers were their prospects or customers.

He contends that by accepting the purchasers, and entering into a valid and enforceable contract, defendants made a determination of the purchasers’ ability to perform, plaintiff’s commission became due and payable, and failure of either party to carry out the contract does not affect his right to the commission. He argues that he produced purchasers with whom defendants were satisfied, and their ability to perform is therefore not material.

Plaintiff’s evidence shows an oral waiver of the specific provision of the agreement between the parties, and defendants’ evidence of the terms upon which the provision was waived was properly before the court.

In order to recover, plaintiff was required to prove that he produced a purchaser ready, willing and able to consummate the purchase upon the terms and conditions which, under plaintiff’s agreement with the defendants, entitled him to a commission, Oliver v. Sattler, 233 Ill 536, 84 NE 652. There is an evidentiary basis for the trial court’s finding that the transaction, and plaintiff’s right to a commission, were contingent upon success of the promotional scheme, and we cannot say it is so manifestly erroneous as to require reversal. The judgment of the Circuit Court of Williamson County is therefore affirmed.

Judgment affirmed.

MORAN, J.,

concurs.

EBERSPACHER, J.,

dissenting.

Both the trial court and this Court agree that plaintiff presented sufficient evidence of waiver of the ex-elusionary provision of the written brokers agreement entered into by plaintiffs and defendants on October 16, 1967, which provided in pertinent part as follows:

“Marshall L. Skelcher and Martha E. Skelcher agree to pay John MacCarthy $15,000.00 commission for selling the Lake View Hunt Club for $165,000.00 to one of his clients. However, in the event that Skelcher sells the club himself to somebody that is not one of MacCarthy’s clients; Marshall L. Skelcher and Martha E. Skelcher will not owe any commission to John MacCarthy. This agreement shall expire 45 days from date.”

No one contends that it is ambiguous.

In view of defendants’ contention, by way of special defenses, that plaintiff in order to earn his fee must have promoted some investment funds so that the purchaser or purchasers could perform financially, evidence that plaintiff’s right to the commission was contingent upon success of the promotional scheme was admissible. But the burden of proof on special defenses was on defendants.

None of plaintiff’s evidence, either by direct or by cross-examination, supports the special defenses. On behalf of defendants, Mr. Skelcher testified principally to the effect that the purchasers were not MacCarthy’s clients, and that he had not waived the exclusionary clause, a position which both the trial court and this Court agree was not supported by the evidence. Skelcher’s testimony that MacCarthy’s fee was contingent on success of the promotional scheme was certainly not clear nor preponderant. It does not suggest that such was the condition imposed at the time of signing the agreement on October 16, 1967, but suggests that when Skelcher subsequently advised plaintiff of the prospective purchasers and suggested MacCarthy get in touch with them and attempt to close the sale with them, there came into being an understanding that MacCarthy’s commission was contingent on MaeCarthy’s promotion of a part of the funds to effect a purchase. Obviously, at that time Skelcher had not accepted either the purchasers or the terms of the contract calling for no cash. That evidence cannot be said to be sufficient to prove that MacCarthy waived the unambiguous provisions of the brokerage agreement, or that MacCarthy agreed to alter its terms.

The other witness, Grindle, whom plaintiff called to support the contingent fee theory positively stated that he never discussed the matter of the brokerage fee with MacCarthy from the time MacCarthy was put in touch with him by Skelcher, in the last part of October or early November, until after the matter was closed at the bank on November 15. He did not testify to any admission of MacCarthy or any conversation between Skelcher and MacCarthy to the effect that MacCarthy’s fee was contingent. He testified that he and MacCarthy discussed the promotional idea, the purchase without cash and the possibility of MacCarthy promoting some investors both before the final papers were signed and after, but he concluded “MacCarthy’s conversation with regard to stock and membership was friendly, helpful talk rather than a direct commitment.”

The evidence of MacCarthy’s conduct during all the time in question was consistent with that of a broker obtaining a purchaser for his client. The evidence is not consistent with the theory that MacCarthy was employed as agent of the proposed incorporators or of Skelcher to seek investment funds. Everyone knew that MacCarthy was not licensed to sell investments or shares of stock. I find no evidence from which it can reasonably be inferred that MacCarthy waived the plain and unambiguous terms of the brokerage contract executed on October 16.

Defendants do not contend that the contract for purchase agreement, which was signed by Skelchers on September 8th and which contained the terms of the sale was void because the party of the second part did not enter into it within 5 days. When the parties met at the bank on November 15, Skelcher accepted the execution of the mortgages and all the instruments delivered to the bank including a title policy and his deed, knowing that no cash was available, but hoping someone would raise some; there is no testimony that he objected to either the terms or the purchasers, nor is there any testimony that he advised MacCarthy at that time that his commission would be contingent on some money being paid to the bank. Skelcher accepted the deal as there executed that day. There can be no question that the “Offer to purchase and deposit receipt” executed by plaintiff as broker on November 3, was superseded by the “Contract for Purchase Agreement” dated November 8 and the subsequent closing. As a result Cabry v. Ionidas, 122 Ill App2d 167, 258 NE2d 45, is not applicable here.

The case of Fox v. Ryan, 240 Ill 391, 88 NE 974 (1909), was an action in assumption to recover a $4,000 commission claimed by plaintiff-broker to be due him for services rendered in effecting a sale of defendant’s mining stock. The seller knew of the potential purchaser some years before engaging the broker. He requested the broker to direct his efforts toward effecting a sale to this particular purchaser. The broker was successful in that a contract of sale was entered into by mutual agreement of seller and purchaser; subsequently the purchaser forfeited. The court stated the law as follows:

“Where a broker is employed to sell property by the owner, if he produces a purchaser within the time limited by his authority, who is ready, willing and able to purchase upon the terms proposed by the seller he is entitled to his commissions, even though the seller refuses to perform the contract on his part. In such case, however, it is necessary for the broker to prove the readiness, willingness, and ability of the purchaser to take the property on the terms proposed. But where the seller accepts the purchaser and enters into a valid contract of sale with him, the broker’s commission is earned whether the purchaser subsequently fails to perform his contract and make the payments agreed upon or not. 240 Ill 396.”

And at page 397:

“The vendor of property is not required to accept a purchaser without opportunity or investigation as to his ability to comply with the terms of the contract, but where he does accept such purchaser, uninfluenced by fraud or misrepresentation, it is a determination by him of the purchaser’s ability to perform his contract, and if the purchaser afterwards fails to perform it, the seller cannot defeat the broker’s commissions on the ground that the purchaser was not able to buy the property.”

Here the ultimate contract was signed and performed to the satisfaction of defendants who delivered their deed and title policy with knowledge that the purchasers had no funds at that time with which to satisfy any of the obligations they had made to eventually compensate the sellers for the purchase price. Neither the brokerage agreement nor any of the instruments delivered to the bank provided plaintiff’s commission was to be paid from the proceeds of the sale. The broker performed to the satisfaction of the sellers in consummating a deal which they knowingly accepted; no terms of sale nor reference to any contract of sale were made in brokerage agreement. Under such circumstances plaintiff’s fee should not be withheld because the purchasers did not perform. See Farber v. Fleck, 51 Ill App2d 145, 200 NE2d 903.

I would therefore reverse the judgment and enter judgment for plaintiff.


source: Caselaw Access Project

author: GOLDENHERSH, J.

license: Public Domain

text:
    Nathan G. (Ted) Allen, Petitioner-Plaintiff-Appellee, v. I. D. Tate, Respondent-Defendant-Appellant.
    Gen. No. 69-122.
    Fifth District.
    July 27,1970.
    Robert S. Hill, of Benton, for appellant.

      Ralph W. Choisser, of Eldorado, and Deneen A. Watson, of Harrisburg, for appellee.
   GOLDENHERSH, J.

Defendant, I. D. Tate, appeals from the judgment of the Circuit Court of Saline County entered in plaintiff’s action to contest defendant’s election to the office of Supervisor of the Town of Galatia.

The record shows that plaintiff and defendant were the only candidates for the office of Supervisor in the Town Election held on April 1, 1969. The official canvass showed each candidate to have received the same number of votes, in accordance with the provisions of chapter 139, § 70, Ill Rev Stats 1967, the tie was decided by “lot,” and defendant was certified as elected.

On April 15, 1969, as authorized in chapter 139, § 69a, Ill Rev Stats, a discovery count was held. On April 23, 1969, the petition for contest of the election was filed.

The record shows, and it is not disputed, that Max Cockrum was Town Clerk on April 1, 1969, and James Richey became Town Clerk on April 20, 1969. Attached to the petition is “Proof of Service of Custodian of the Ballots,” which reflects that on April 23, 1969, a copy of the Petition was mailed to “Max Cockrum, Town Clerk of the Town of Galatia, Illinois.”

The trial court record shows defendant’s motion to dismiss was denied, defendant answered, the court heard testimony, entered judgment and this appeal followed.

Able counsel have filed comprehensive briefs covering a number of contentions, but in our view of the case, only one issue need be discussed.

Defendant contends in this court, as he did in his motion to dismiss and as a “Defense” raised in his answer, that the trial court erred in refusing to dismiss the petition on the ground of plaintiff’s failure to comply with the provisions of chapter 46, § 23-20, Ill Rev Stats which provides:

“The person desiring to contest such election shall, within thirty (30) days after the person whose election is contested is declared elected, file with the clerk of the proper court a petition, in writing, setting forth the points on which he will contest the election, which petition shall be verified by affidavit in the same manner as complaints in other civil cases may be verified. Copies of such petition shall be delivered by mail to each proper clerk or board of election commissioners who is a custodian of any ballots involved in the contest.”

in that no notice was given James Richey, Town Clerk at the time the petition was filed.

Plaintiff contends that section 23-20 must be construed in the light of the provisions of chapter 46, § 17-20, which inter alia provides:

“The precinct judges of election shall elect 2 judges (one from each of the major political parties), who shall immediately return the ballots, in such sealed canvas covering, to the proper clerk or to the board of election commissioners, as the case may be, who shall carefully preserve the ballots for 2 months, and at the expiration of that time the clerk shall remove the same from original package and shall destroy the same, together with all reserve and unused ballots: Provided, if any contest of election is pending at such time in which such ballots may be required as evidence, and such clerk or board as the case may be has notice thereof the same shall not be destroyed until after such contest is finally determined.”

Plaintiff contends that Max Cockrum, despite the expiration of his term of office and the qualification of his successor, continued as the “custodian of any ballots involved in the contest” as provided in section 23-20 and notice to Cockrum is a sufficient compliance with the statute. He argues further that delivery of the ballots to his successor would serve to cast doubt on their proper preservation pending the determination of the contest.

In Flake v. Pretzel, 381 Ill 498, 46 NE2d 375, the Supreme Court said at page 501:

“It has long been established that the right to contest the election of an individual to an office is not a common-law right but exists solely by statute in Illinois, and the action is neither at law nor in equity, although the proceeding is governed by rules of chancery practice after the petition is filed. (Hulse v. Nash, 332 Ill 500; Olson v. Scully, 296 id. 418; Clarke v. Bettenhausen, id. 373; Quartier v. Dowiat, 219 Ill 326; Douglas v. Hutchinson, 183 id. 323.) It has accordingly been held that it is immaterial whether a proceeding to contest an election is docketed as a cause at law or in equity. (Quartier v. Dowiat, supra.) Since the right to contest an election is purely statutory, the procedure prescribed by statute must be strictly followed. (Girhard v. Yost, 344 Ill 483.) For example, the requirement that the person desiring to contest an election shall file a statement, verified by affidavit, is jurisdictional, and if the statement is not sworn to the court has no jurisdiction of the cause. (Armstrong v. Wilkinson, 346 Ill 322; Daugherty v. Car-nine, 261 id. 366.) The statutory provisions governing election contests must be followed and complied with not only by the parties but also by the courts. (People ex rel. McLaren v. DeBoice, 377 Ill 634.) The jurisdiction, mode of trial and the entire contest are statutory and, therefore, beyond the judicial power. (Bowen v. Russell, 272 Ill 313.) Indeed, a contest cannot be brought in any court unless the statute so provides. (Douglas v. Hutchinson, supra; Linegar v. Rittenhouse, 94 Ill 208.) It follows, necessarily, that the jurisdiction of courts over election contests must be exercised only in accordance with the statute. (Graves v. Needham, 379 Ill 25; Daugherty v. Camine, supra.) As has been pertinently observed, ‘The right to contest an election exists only by virtue of constitutional or statutory provision and when conferred the proceeding must be conducted in or before the body or court which is designated.’ (Kohout v. Rench, 340 Ill 470.)”

(See also Doelling v. Board of Education, 17 Ill2d 145, 146,160 NE2d 801).

Sections 92 and 94 of the Township Organization Act (c 139, §§ 92, 94, Ill Rev Stats) provide for the delivery by a Town Clerk whose term has expired, to his successor, of “all the books and papers under his control, belonging to such office.” In our opinion, this required delivery of the ballots and tally sheets in Cockrum’s possession, and the statute required that notice be given Richey.

Because of plaintiff’s failure to comply with the statute, the trial court erred in denying defendant’s motion to dismiss the petition, and the judgment is, therefore, reversed.

Judgment reversed.

MORAN and EBERSPACHER, JJ., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Buford, Defendant-Appellant.
    Gen. No. 69-137.
    Second District.
    July 29,1970.

      John T. Beynon, Public Defender of Winnebago County, of Rockford, and John F. McNamara, Assistant Public Defender, for appellant.
    Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This case presents the narrow issue of whether the trial court erred in imposing upon the defendant a sentence of not less than two nor more than seven years in the penitentiary.

The defendant was arrested on May 29, 1968, and was charged with the offense of having cashed a forged check in the sum of $50 on December 1, 1967. After an indigency hearing, the Public Defender was appointed on June 11, 1968, to represent him. The next day the defendant waived a preliminary hearing, and he was indicted by the Winnebago County Grand Jury on October 17,1968.

Upon arraignment, he entered a plea of not guilty, but subsequently, on November 19, 1968, changed his plea to guilty, waived jury trial, and was granted leave to file a petition for probation. The defendant does not question the propriety of the court’s admonitions in connection with the waiver of jury trial or the entry of a plea of guilty. The sole issue before us is the propriety of the sentence. The defendant contends that it was too severe and should be reduced.

One of the purposes of the Criminal Code is to “Prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders.” (Ill Rev Stats 1969, c 38, par 1-2 (c).) This purpose affords the court a range of discretion in sentencing which permits a recognition of the rehabilitative possibilities of the individual offender. The law does not necessarily contemplate that the same penalty will be inflicted upon all persons who are guilty of the same offense.

In considering this subject, we stated in People v. Buell, 120 Ill App2d 367, 256 NE2d 845 (1970), at pages 371, 372:

“In imposing a sentence, the trial court has an obligation to the public as well as to the person found guilty of the crime. . . . Thus, in sentencing, the court must consider the punishment warranted under the circumstances of the particular case, the protection of the public, and the potential for rehabilitation of the party being sentenced. The circumstances of the case include the nature of the offense, the attending circumstances, the character and propensities of the offender, his family, work record, past delinquencies, his potential for rehabilitation, and all other pertinent matters.”

At the hearing on the petition for probation, the defendant, a Catholic priest, and a Protestant minister, testified on behalf of the defendant. The priest had known him for four and one-half years, and had helped him financially, as well as spiritually. He knew that the defendant was a drug addict, and that he had turned himself in for traffic in drugs. The defendant had told him of his efforts to quit the use of drugs, his failures, and his aspirations.

The Protestant minister, Chaplain of the Council on Law Enforcement, related that he became acquainted with the defendant at a recent date when the local press carried a series of articles on drugs; that the defendant came to the church and talked with him about drugs and about his drug problem; that the defendant, as a former drug addict, made suggestions to him relative to combating the drug problem in this community. He believed that the defendant had leadership possibilities in connection with the operation of a Halfway House, or a similar facility, which could be dedicated to aiding former addicts.

The defendant, thirty-eight years of age, was employed at the time of the probation hearing. He was a high school graduate, and had been in the armed service of the United States on three occasions. He first enlisted when under the age requirement, and was discharged about a year later when his true age was discovered. Later he reenlisted, and was in the service in Korea from 1949 to 1952. He again enlisted in 1954, but was discharged when it was discovered that he had failed to notify the armed services that he was on probation at the time of enlistment. At the time of his last enlistment, he was on probation for forgery.

The defendant admitted that he had three felony convictions : one for forgery, one for possession, and one for the sale of narcotics. He stated that he had used drugs, and that he became an addict after being hospitalized for a service incurred wound. While hospitalized, he received morphine and later switched to other drugs. He served a Federal sentence at Leavenworth prison and used no drugs while there. Upon leaving Leavenworth, he voluntarily went to the Federal hospital at Lexington, Kentucky, for treatment. He later reverted to the use of drugs and voluntarily went to Covington, Tennessee, for treatment.

The defendant had taken courses in literature above the high school level, and started writing while in Leavenworth prison during the years of 1958 to 1963. His works were published under the name of D. Thomas Bond.

The probation report — the verity of which was acknowledged by the defendant — reflected the following:

“FAMILY STATUS: The defendant states he was born in Shelby County, Tennessee, June 30, 1930. His parents are separated, and his father, Estes Buford, lives at 2044 - 21st Lane, Milwaukee, Wis. His mother, Viola Hill, resides at 530 Symington, Covington, Tenn. He has four sisters and five brothers, and he states that one of his brothers, Estes Buford, resides with the defendant. He completed his high school education in 1963 while confined to Leavenworth Penitentiary. He states he was married at Milwaukee, Wis. March 13, 1953, and that one child was born of this marriage. His wife presently resides in Milwaukee, Wis. pending the outcome of this probation hearing.
“Defendant states he enlisted in the U. S. Army Jan. 27, 1946 and was honorably discharged Jan. 13, 1947; that he enlisted in the U. S. Army April 7, 1948 and was honorably discharged July 6, 1952; that he enlisted in the U. S. Army March 15, 1954 and that on June 2, 1954 he received an undesirable discharge for failure to make known at the time of his enlistment that he was on probation on a felony conviction from Milwaukee, Wis. for forgery.
“EMPLOYMENT: He states he has been employed as a laborer in construction work in Rockford, Illinois by John Fridh and Linden & Son.
“FORMER TROUBLE: The defendant states he has been arrested on at least four previous occasions, as follows: 1) in 1953 at Milwaukee, Wis. for forgery, placed on two years probation from which he was discharged in 1955; 2) In April, 1953, at Milwaukee, Wis. for possession of narcotics, sent to the narcotics hospital at Lexington, Ky. for two years; 3) In 1957 at Milwaukee, Wis. for the sale of narcotics and sentenced to 10 years at Leavenworth Penitentiary in 1958. Following his release from Leavenworth in 1963 he was transferred to the narcotics hospital at Lexington, Ky., being discharged in 1964; 4) in Feb. 1967 at Rockford, Illinois for narcotics violation. However, the informant later admitted that he had falsified his testimony, and the defendant was released shortly thereafter.
“PRESENT TROUBLE: The defendant is charged with and admits the cashing of a forged check in the city of Rockford, Elinois on December 3, 1967 in the amount of $50.00. He also admits to your Probation Officer that there were approximately eight other checks totaling approximately $600.00 which were involved in the same episode. In May, 1968 the defendant returned to Rockford, Elinois from Milwaukee, Wisconsin where he had gone following the cashing of these checks, whereupon he was arrested while driving a car without a proper license. He states he was arrested May 29, 1968, released on bond July 7, 1968 and has since remained at liberty. His petition for release on probation was filed November 18,1968.”

The defendant’s character, propensities, family background, work record, past delinquencies, and the nature of his present offense, were not indicative of a good rehabilitation potential. Thus, the evidence would support the view of the trial judge: that the defendant was not a good probationary risk.

Section 117-1 of the Code of Criminal Procedure, provides :

“(a) A person who has been found guilty of any offense except a capital offense, the sale of narcotics or rape may be admitted to probation when it appears that:
“(1) The defendant is not likely to commit another offense;
“(2) The public interest does not require that the defendant receive the penalty provided for the offense; and “(3) The rehabilitation of the defendant does not require that he receive the penalty provided for the offense.
“(b) The term of probation may be for any period not less than 6 months and not to exceed 5 years. The court may for good cause extend the period of probation for not more than an additional 2 years.
“(c) A person admitted to probation shall remain subject to the jurisdiction of the court.
“(d) The judgment of guilty entered prior to the admission of defendant to probation shall be a final judgment subject to review under Article 121 of this Code.”

(Ill Rev Stats 1969, c 38, par 117-1.)

The defendant’s record does not inspire the hope that he is not likely to commit another offense. When he reverts to the use of narcotics, the desire for drugs drives him to repeated forgeries. Confinement appears to be necessary to protect the public from continued criminal activity by the defendant. It is fondly hoped that the narcotics habit may be broken while the defendant is incarcerated; and that he may receive correctional treatment which can be most effectively provided during confinement.

When a sentence is imposed within the limits prescribed by statute, an appellate court will not disturb that sentence unless it clearly appears that the penalty imposed constitutes a great departure from the fundamental law and its spirit and purpose, or that it is manifestly in excess of the proscription of section 11 of Article II of the Illinois Constitution requiring that all penalties be proportioned to the nature of the offense. People v. Taylor, 33 Ill2d 417, 424, 211 NE2d 673 (1965); People v. Smith, 14 Ill2d 95, 97, 150 NE2d 815 (1958); People v. Juve, 106 Ill App2d 421, 428, 245 NE2d 293 (1969). Also see: People v. Scott, 117 Ill App2d 344, 253 NE2d 553 (1969).

The imposition of sentence is peculiarly within the discretion of the trial court and this discretion should not be interfered with unless it is clearly abused. People v. Nordstrom, 73 Ill App2d 168, 183, 219 NE2d 151 (1966). We find no abuse of discretion by the trial court in this respect. The power in reviewing courts to reduce sentences should be exercised with considerable caution. People v. Taylor, supra, 424.

Under the circumstances of this case, the evidence does not warrant a reduction of the sentence imposed by the trial court. Accordingly, the judgment is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: TRAPP, J.

text:
    Maxine Schnepf, Administratrix of the Estate of James L. Schnepf, Deceased, Plaintiff-Counterdefendant-Appellant, v. Burl Grubb and the City of Barry, Defendants-Appellees, and Burl Grubb, Counterplaintiff.
    Gen. No. 11,104.
    Fourth District.
    July 30,1970.

      Lewis, Blickhan & Garrison, of Quincy (George B. Lewis and Edward B. Tucker, of counsel), for appellant.
    Schimmel & Schimmel, of Pittsfield, for appellee.
   TRAPP, J.

Plaintiff appeals from judgments for the defendants entered following the verdict of a jury in an action for wrongful death. Post-trial motions were denied and plaintiff appeals. The jury found in favor of plaintiff and counterdefendant upon Grubb’s countercomplaint for personal injuries. No appeal is taken from the judgment on such verdict.

It is conceded that Grubb (hereinafter called the defendant) shot the decedent, James Schnepf, and the issue before the jury was whether the shooting was in self-defense. The action against the City of Barry is upon the theory that Grubb, mayor and acting chief of police of the City, was an agent of the City acting within the scope of his employment at the time of the shooting.

Upon appeal plaintiff urges that the court erred in refusing to direct a verdict for plaintiff, that the verdict is contrary to the manifest weight of the evidence, that the court erred in refusing to admit into evidence a photograph of the decedent taken after his death, and that the court erred in permitting a physician to testify that defendant suffered a broken nose. No issue is raised on instructions.

Decedent was aged 19 years and is described as being six feet tall, weighing 175 pounds, and physically strong. He was usually employed in farming and manual labor. Defendant is described as being 76 years of age and in poor physical health.

Plaintiff contends that defendant had made threats to kill decedent and that the killing was in revenge.

The jury was instructed that defendant, by virtue of his office, was a conservator of the peace, in substantially the language of chapter 38, § 7-5, Ill Rev Stats 1965. The relevant language of the instruction is:

“. . . a peace officer is justified in using force likely to causé death or great bodily harm only when he believes that such force is necessary to prevent death or great bodily harm to himself.”

In terms of self-defense he is held to the same standard as a private person. Chapter 38, § 7-1, Ill Rev Stats 1965. Whether danger of great bodily harm is actual or apparent does not depend upon an assailant’s use of a deadly weapon or actually having one in his possession. People v. Brumbeloe, 97 Ill App2d 370, 240 NE2d 150; The People v. Motuzas, 352 Ill 340, 185 NE 614, and The People v. Turner, 385 Ill 344, 52 NE2d 712.

A prelude to this tragedy occurred on the evening of October 30, 1966, which plaintiff urges is relevant upon the ultimate issue. In the late afternoon or early evening of this date, defendant stopped a car driven by decedent who was then accompanied by his brother, Joseph, aged 22, and witnesses, Sparrow and Franklin, each aged 18 years. Defendant charged that decedent had ignored a stop sign, which he denied. Defendant testified that decedent and his brother got out of the car and that they pushed and shoved him, that he went to his car to get a “billy,” that the brother, Joseph, jerked the “billy” away and decedent hit him in the face. Eyewitnesses at a nearby filling station testified to seeing the decedent and his brother fighting with defendant, but did not see the “billy.” Decedent’s companions testified that defendant got the “billy” and hit decedent on the shoulder, that the “billy” was taken away and that decedent pushed or shoved defendant into a fence some six feet distant, and that defendant’s injuries were thus incurred. Later that evening, decedent and his brother were brought to the City Hall where they were arrested by the sheriff and the deputy. The evidence is that decedent started to run and that the sheriff’s men had to fight him to the ground to place handcuffs on him. During the melee, defendant was hit or kicked in the face. There is testimony that decedent insisted that defendant also be arrested at that time for hitting him with the “billy.” Some weeks later the brother, Joseph, pleaded guilty to kicking the deputy sheriff in the face.

There is conflicting testimony as to whether the defendant was striking or attempting to strike decedent with a cane while the sheriff and deputy were struggling to put handcuffs on decedent. Plaintiff’s witnesses, Garner, aged 18, and Hodgson, aged 17, testified that at the time of the arrest of decedent, they heard defendant say that decedent had given him an awful beating and that he would carry a gun in his car and shoot him.

At about 1:30 a. m. on November 6, 1966, Dale Smith, a State policeman then residing in Barry, was awakened by a car with noisy occupants. He recognized one voice as that of the decedent. Smith testified as to personal harassment — both his police cruiser and his personal car had been splashed with paint, refuse thrown in his yard and obscenities shouted at his family. Shortly thereafter he heard several shots fired. He went to his police car, waited until he saw the other car and followed it. He called by radio to the police communication center to ask for another trooper and requested the center to call the Barry police. Dale Christianson, the Barry nightwatchman, was called and subsequently was requested by Smith to pick up the defendant at his home.

Defendant and Christianson ultimately followed the car which was driven by Owen Brown accompanied by decedent and Dennis Franklin to a point where it was stopped by Smith, whose car blocked the road. Smith approached the Brown car with drawn revolver and took Brown to the patrol car. Defendant remained at the rear of the Brown car, some 25 feet distant, holding a shotgun. Christianson stood to the left rear of the squad car. Smith testified that upon previous arrests decedent gave trouble, would resist arrest and would fight officers.

After Brown was given a ticket, decedent took over driving the Brown car. Smith drove away, followed by Christianson and the defendant. A block distant they discovered that decedent was following without headlights. Christianson stopped and decedent stopped behind the Barry police car — the testimony varies from a few feet to 30 feet distant. Christianson walked back to the Brown car and the defendant stood by the right front door of the city car. Decedent and his companions got out of the car to talk with Christianson. Without more, decedent started to move away from the others toward the defendant. Smith, who had stopped around the corner, couldn’t say whether decedent was walking rapidly or running toward the defendant. Christianson did not see this. When decedent was about six feet from defendant, the latter shot him with a revolver. Decedent was hit in the chest and died a few minutes later.

Defendant testified that he saw decedent approaching and told him to stop three times — the first when he was about 15 feet distant, and that he told decedent to stop when 5 or 6 feet distant and then fired. Christianson did not observe or hear anything until the shooting. Franklin and Brown testified that nothing was said. There is no evidence that decedent was armed. Defendant agrees that he did not call to Christianson or Smith for help.

A substantial number of witnesses testified that decedent’s reputation in the community for peacefulness and quiet was bad. Others testified that he was hardworking, but upon cross-examination it appears that he had assaulted one or more persons.

Plaintiff cites Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, in urging that the court erred in refusing to direct a verdict for plaintiff. It was there stated that a court should direct a verdict only in those cases in which all of the evidence, viewed in the aspects most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict could ever stand. The testimony considered by the court in stating such rule was nonspecific and at best, equivocal. In this case there is a substantial factual dispute, and the jury’s assessment of the credibility of the several witnesses must be considered a significant and controlling factor.

Plaintiff urges that defendant was not struck or wounded in any manner, and that assistance from Christianson or Smith was but a short distance away, and he contends that defendant could not reasonably believe that it was necessary to shoot decedent to prevent serious bodily injury.

Applying the rule of Pedrick, the evidence most favorable to the defendant includes the pronounced differences in age and physical strength of the parties, the fact that decedent for no stated or apparent reason left the presence of his companions and Christianson to proceed rapidly toward the defendant, that he ignored the three separate warnings to stop and continued his approach until almost an arm’s length distance from the defendant. There is evidence that upon two recent occasions decedent had used great force against defendant. The presence of Christianson and Smith some 20 feet or more distant could not prevent several quick, severe blows or kicks which might cause great bodily harm to an elderly man. All of the circumstances preceding the shooting and present at that time must be distilled to determine the reasonableness of defendant’s belief that he must use major force to prevent great bodily injury to himself. Such distillation process proceeds through the determination of the credibility of witnesses whose descriptions of events are completely contradictory in essentials. The jury and not the court is the instrument of such process.

It is further argued that the verdict is contrary to the manifest weight of the evidence, and plaintiff makes essentially the same arguments as those discussed. The manifest weight of the evidence has been defined as that which is clearly evident, plain and indisputable. It is the rule that upon a disputed factual question, it is for the jury to determine the weight of the evidence, after considering the credibility of the several witnesses, and a reviewing court will not reverse such verdict unless a conclusion opposite to that of the jury is clearly evident and plain. Rose v. B. L. Cartage Co., 110 Ill App2d 260, 249 NE2d 199; Schneiderman v. Interstate Transit Lines, Inc., 331 Ill App 143, 72 NE 2d 705. Again, this Court must consider the fact that the trial court heard the testimony of the witnesses and denied the post-trial motion. Bergman v. Hedges, 111 Ill App2d 35, 249 NE2d 666. Upon the principles discussed and this record, this Court cannot say that the verdict is contrary to the manifest weight of the evidence.

Plaintiff urges that the trial court erred in permitting a physician to testify that defendant received a broken nose on October 30, 1966. He testified that it was difficult to make a sure diagnosis of a broken nose without the benefit of an X ray. Plaintiff contends that the physician was not qualified as an expert to read the X ray. Such was taken at the physician’s request to assist in treatment, and he testified that he saw the fracture as pointed out by a qualified radiologist. Essentially, however, the issue is moot, as the testimony is only relevant to defendant’s counterclaim, and there is no appeal from the verdict on such counterclaim.

It is urged that the trial court erred in refusing to admit into evidence on rebuttal, a certain photograph taken of decedent after death which is said to show a black and blue mark upon his shoulder. It is said that such photograph impeaches the testimony that defendant did not strike decedent with the “billy” on October 30th, and corroborates the testimony of the brother, Joseph Schnepf, that he saw a mark on decedent’s shoulder before the latter was wrestled to the ground by the sheriffs. From the abstract it appears that the photograph was not initially qualified for admission into evidence, and was not thereafter qualified on rebuttal. In argument before the trial court, counsel agreed that the witnesses testified to seeing a red mark. The trial court concluded that the photograph did not clearly show what it was said to show. We have examined the photograph which was of decedent’s back, and neither the shoulder nor the alleged bruise is clearly or completely shown. It would require conjecture to determine the nature and extent of the mark alleged to be a bruise. Plaintiff cited The People v. Kolep, 29 Ill2d 116, 193 NE2d 753 and Hedrich v. Borden Co., 100 Ill App2d 237, 241 NE2d 546. In those cases it was held that there was no abuse of discretion in admitting photographs into evidence which were accurate, material and relevant. This record does not show an abuse of discretion in refusing to admit the- exhibit.

The judgment is affirmed.

Affirmed.

SMITH, P. J. and CLARK, J., concur.


text:
    Robert A. Summers, Individually and as Administrator of the Estate of William L. Summers, Deceased, Plaintiff-Appellant, v. Rosemary Hopwood, Defendant-Appelllee.
    Gen. No. 11,178.
    Fourth District.
    July 30,1970.

      Asher 0. Geisler, of Decatur, for appellant.
    Hull, Armstrong & Campbell, of Decatur (Wayne E. Armstrong, of counsel), for appellee.
   TRAPP, J.

Plaintiff appeals from judgments for the defendant entered after jury verdicts upon his respective claims as administrator for the wrongful death of his son, William, and his individual action for funeral expenses for the son.

Upon appeal plaintiffs contend that the judgments should be reversed and that judgments be entered for the plaintiff with a trial on the issue of damages only, or in the alternative, that a new trial should be granted by reason of the errors occurring.

There is no real conflict in the evidence. Decedent, aged 14 years, left a bowling alley between 8:30 and 9:00 p. m. on March 9, 1967, and the injury occurred while he was walking north on Brett Avenue to his home about three blocks distant.

Brett Avenue is a blacktop road about 19 feet wide, unlighted, with no sidewalks on either side. It is outside the City of Decatur. There are no speed signs. The shoulder on the east side — about 4 feet wide — is wider than the shoulder on the west side. A witness, Snyder, who resided on the street, testified that most children walk on the east side. The evening was dark and clear,, there being no moonlight or artificial light.

Defendant was driving a 1962 Chevrolet north on Brett Avenue on her way home some time after 8:30 p. m. in the evening when she struck something which hit the windshield and went over the car. Defendant immediately applied her brakes and stopped. In her judgment, she was travelling 30 miles per hour at the time of impact, although she told the sheriff’s deputy she could have been travelling 35 to 40 miles per hour. Defendant then drove around the corner, stopped at the house of John Snyder and advised him that she had struck a boy. She said her lights were out after the accident and she couldn’t see. Mr. Snyder took a flashlight down to the place and found the body of the boy completely off the road on the east side, face up, with his head south and his feet north. The boy had dark trousers and a dark jacket, and his hands were in his pockets.

Defendant states that her lights were on prior to the impact, that she was driving near the left center of the road, and that she did not see the boy before he was struck. She said she was keeping a careful lookout ahead. She had lived in the area five months and drove down Brett Avenue frequently. She had seen people walking down this street during night hours.

A sheriff’s deputy testified that there were two skid marks about 28 feet in length which started parallel to where the boy’s body was found and proceeded north. The skid mark farthest east was 3 feet from the edge of the pavement, and the marks proceeded northwest to a point where the left skidmark was 2X/% to 3 feet from the west side of the pavement. At the scene he found a dark plaid corduroy hat. After the accident, the sheriff’s deputy tested defendant’s headlights and found that the left ones were working and the right ones smashed. The road surface was dry but the shoulders on either side were wet.

Several witnesses testified that the boy was athletic, healthy, a good student and possessed of careful habits.

Initially, the jury were given four forms of verdict prepared by plaintiff: Form A found for the individual plaintiff for family expense; Form B for the plaintiff administrator; Form C found for the defendant as to the plaintiff’s individual claim; and Form D found for the defendant as to the administrator’s claim. At the instructions conference, the trial court questioned giving so many forms of verdict as liable to cause confusion.

The jury responded to a special interrogatory, “Do you find that the decedent was contributorily negligent?”, with the answer “No.” It also returned verdict Form D, which found in favor of the defendant and against the plaintiff as administrator. The court advised the jury that they had returned a verdict in only one case, and that they must decide both cases and instructed them to retire with the forms of verdict for further deliberation.

While the record does not specifically indicate the time, it does show that sometime thereafter the jury sent a written question to the court, “Must our decision be either C and D or A and B, or can it be a combination ?” The court did not respond to the inquiry. Thereafter, the jury returned with verdict Form A, finding in favor of the plaintiff individually and against the defendant in the amount of $2,500, and Form D which again found for the defendant upon plaintiff’s claim as administrator.

The court and counsel considered such verdicts inconsistent and the court proposed and prepared new forms of verdict. Plaintiff’s attorney objected on the ground that the special interrogatory controlled and that such amounted to a finding of guilty so that he was entitled to a trial on damages only. Defendant’s attorney moved for a mistrial but almost immediately withdrew the motion. Plaintiff’s attorney then moved for a mistrial, and such was denied.

The new forms of verdict prepared by the court have been called a “combined” verdict form. One of the new forms provided for holding in favor of the plaintiff upon each of his claims which were stated separately, and each provided a blank for the filling in of the amount of damages as to each claim. The court filled in the amount of plaintiff’s individual damages in the sum of $1,560.95, being the precise amount of expenses proven. This form left blank the amount of plaintiff’s damages as administrator. Upon another page were forms of verdict in favor of the defendant as to each claim of the plaintiff.

Defendant’s attorney moved the court to resubmit the special interrogatory. Such motion was denied. The court advised the jury that the verdicts returned were inconsistent and requested the jury to retire with the new verdicts but without submitting the special interrogatory. There were no written instructions regarding the new forms of verdict. The jury returned with a final verdict in favor of the defendant as to each claim of the plaintiff, individually and as administrator.

Plaintiff contends that the jury’s response to the special interrogatory upon the issue of decedent’s contributory negligence is conclusive of the issue of liability. The several authorities cited do not require this conclusion. In Wise v. Wise, 22 Ill App2d 54, 159 NE2d. 500, a special finding that the driver was not guilty of willful and wanton conduct was clearly inconsistent with and controlling against a general verdict for the guest plaintiff. Here the three items which plaintiff must establish include defendant’s negligence, decedent’s freedom from contributory negligence and the proximate causal relation between defendant’s negligence and decedent’s death. The answer to the special interrogatory controlled only the first issue. See Rapp v. Hiemenz, 107 Ill App2d 382, 246 NE2d 77. The cited Waldron v. Hardwick, 99 Ill App2d 36, 240 NE2d 772, is not persuasive for there the plaintiff was held guilty of contributory negligence as a matter of law.

Upon the issue of defendant’s negligence, there are numerous inferences which the jury might draw from the facts which would lead to the conclusion that plaintiff had failed to prove the defendant guilty of negligence. In McInturff v. Chicago Title & Trust Co., 102 Ill App2d 39, 243 NE2d 657, the court pointed out that no inference of negligence necessarily arises from the mere happening of an injury. Defendant testified as to keeping a lookout, but that she never saw the decedent. The evidence is that it was a dark night, that decedent was wearing dark clothing and was found on the shoulder of the road with his hands in his pockets. The only positive evidence is that the car travelled no closer to the shoulder than 3 feet. Such facts justify inferences by the jury that the boy was on the paved portion of the road when struck. It is not unreasonable for the jury to conclude that the failure of defendant to see decedent could have resulted from the combination of the dark night, dark clothing and the boy crossing or being upon the road. The possible inferences from the facts which would account for the injury without negligence of the defendant were matters for the jury. Lowe v. Gray, 39 Ill App2d 345, 188 NE2d 890. This conclusion is not necessarily inconsistent with the jury’s finding that the boy was not negligent. They were instructed that the decedent’s duty of care was that consistent with a youth of his age. The determination of decedent’s duty of care would not establish negligence on the part of the defendant. As cited in Warren v. Patton, 2 Ill App2d 173,119 NE2d 465:

“Whether a person driving at night on a straight highway should by the use of ordinary care, see in the light of his own headlights, a dark or inadequately lighted object, is clearly a question for the jury.”

Plaintiff next contends that the court erred in using the so-called “combined” form of verdict when there were two separate counts, citing chapter 110, § 68(3), Ill Rev Stats 1967. In Magnani v. Trogi, 70 Ill App2d 216, 218 NE2d 21, the jury returned a verdict in one amount so that the award for family expenses could not be separated from the wrongful death award. In Einfeldt v. Watkins, 6 Ill App2d 205, 126 NE2d 864, the principles of law applicable to the different counts were not the same. In Madison v. Wigal, 18 Ill App2d 564, 153 NE2d 90, there were counts for both willful and wanton conduct and for ordinary negligence. Here, the principles relating to liability were identical, for there was no issue of plaintiff’s individual contributory negligence. The forms of verdict provided that the jury determine separate amounts for each claim of the plaintiff. It is not properly said, therefore, that the forms of verdict were combined in the sense that a single amount would be awarded by the jury for each claim Of plaintiff.

Plaintiff further contends that the court erred in instructing the jury after it had retired to deliberate, citing Mathes v. Basso, 104 Ill App2d 237, 244 NE2d 362. There the court erroneously advised the jury that the answer to the special interrogatory should conform to the verdict, whereas the law is that in case of irreconcilable conflict the answer to the special interrogatory controls. In The People v. Brothers, 347 Ill 530, 180 NE 442, it was held that withdrawing a form of verdict erroneously submitted was not reversible error. In Emme v. Pennsylvania E. Co., 29 Ill App2d 97, 172 NE2d 507, it was held that there was no error in answering the question whether the verdict must be unanimous. In Miller v. Pillsbury Co., 56 Ill App2d 403, 206 NE2d 272, it was held not to be error to advise the jury that inconsistent verdicts could not stand, but required reconsideration of the jury.

Plaintiff next contends that it was error to fill in the form of verdict for plaintiff’s claim for funeral expense. The cited authorities do not support this position. While it would have been better practice to leave the amount blank, upon this record the amount favored the plaintiff. The practice would actually tend to prejudice the defendant, and the verdict in favor of the defendant renders the question moot.

The total record clearly points out that the jury repeatedly found for the defendant upon the issue of wrongful death. The question submitted by the jury was directed to the necessity of consistent verdicts upon the two claims of the plaintiff. Upon the final submission of the forms of verdict prepared by the court, the jury persisted in its findings for the defendant. Such circumstance does not persuade that the verdict should be reversed because the jury acted in confusion or in uncertainty.

Plaintiff contends that defendant’s Instruction No. 4 referred to plaintiff’s individual claim as being for:

“. . . funeral and burial expense, ambulance service, and other expenses resulting from the death of the decedent . . . ,”

invited the jury to speculate on matters not in evidence. The jury was instructed in plaintiff’s Instruction No. 21 that recovery should be for funeral and burial expense. We find it difficult to determine that prejudice resulted to plaintiff’s case from the giving of defendant’s instruction to the jury.

The judgment of the Circuit Court is affirmed.

Affirmed.

SMITH, P. J. and RICHARDS, J., concur.


author: SMITH, J.

text:
    Ellen W. Comte, Plaintiff-Appellant, v. George O’Neil, Defendant-Appellee.
    Gen. No. 11,183.
    Fourth District.
    July 30,1970.
    Rehearing denied July 30,1970.

      Elmo E. Koos, of Peoria, for appellant.
    Costigan & Wollrab, of Bloomington, for appellee.
   SMITH, J.

Plaintiff appeals from a judgment on a verdict directed in favor of the defendant at the close of the plaintiff’s evidence. The trial court held that the evidence was insufficient to raise a jury question of negligence on the part of the defendant, either during a Caesarean section performed by him or his post-operative treatment. We agree and the judgment must be affirmed.

The evidence produced was that of the plaintiff and of defendant doctor called as an adverse witness under § 60 of the Civil Practice Act. Ill Rev Stats 1967, c 110, § 60. The Caesarean section was uneventful. The negligence charged is that (1) the defendant negligently permitted the cecum, a portion of the large intestine, to become “kinked” during the operation thereby preventing excretion or (2) failed to diagnose the condition and call in a specialist until four days after the Caesarean operation. The evidence is undisputed that at some time the cecum did become kinked, but is silent as to whether it was before, during or after the Caesarean, and that not one, but two successive operations were required before the ailment was corrected.

Each party accepts the principle that one calling a witness under § 60 of the Civil Practice Act does not vouch for his veracity and may contradict such testimony but, nevertheless, is bound by such uncontradicted and unrebutted testimony. Kapraun v. Kapraun, 12 Ill2d 348, 146 NE2d 7. The parties likewise recognized the rule in a malpractice suit that the plaintiff must establish standards of. care by expert testimony and that the injuries suffered resulted from a negligent failure to follow such standards. Lundahl v. Rockford Memorial Hospital Ass’n, 93 Ill App2d 461, 235 NE2d 671, and cases cited therein. Accepted exceptions to this rule are referred to as the “common knowledge” rule or the “gross negligence” rule, that is, where the physician’s conduct is so palpably negligent or the treatment is so common that a layman could readily appraise it. Scardina v. Colletti, 63 Ill App2d 481, 211 NE2d 762.

It is the plaintiff’s position that the defendant’s testimony is that of an expert and establishes a standard of care, or, in the alternative, that the facts in this case place it in an area of common knowledge or gross negligence for jury determination. In our judgment, the record supports neither position.

The defendant testified that he specialized in obstetrics and gynecology, had performed a previous Caesarean on this lady in 1953 and then “the patient evidenced a certain amount of distention of the abdomen. This complication was terminated by the fourth day.” There was no subsequent surgery then to correct a kinked cecum or any bowel disorders. At the time of this second Caesarean (1956), the defendant had delivered some 6,000 children and about 5 percent of them were delivered by Caesarean section. The defendant averaged about ten such operations a year. The instant operation was performed on December 25. The defendant testified that “on the 27th I did not consider that she had more of a problem with her bowels than anyone would at the corresponding stage of operation. On the 28th, no Xrays were ordered because distention was not greater than one occasionally finds due to just bowel inactivity. Gas had been passed from the enema and the abdomen was softer.” The enemas were continued and a stimulant to get a “lazy” bowel on the move was administered. The stimulant had not been required in the 1953 Caesarean. On December 29, there was further distention, Xrays were ordered, and a specialist was called in. The specialist directed further Xrays later in the same day and corrective surgery was performed on the late afternoon of the 29th. Following this operation, there was a recurrence of the distention and discomfort and second corrective surgery took place four days later. The patient’s subsequent recovery was uneventful.

The doctor testified as to what he did in this case. He was not asked nor did he volunteer whether such conduct was the standard of care adopted, accepted, or generally practiced in such cases. The law of this State makes it the affirmative duty of the plaintiff to establish a standard of conduct either by the defendant or some other expert in the field as a foundation for its breach. If what the doctor did conformed to accepted practice, there was no breach of duty and no liability. For a jury, a trial judge, or this court to enunciate a standard of care on this record contrary to what was actually done by the defendant is to erect a breach of duty upon evidentiary quicksand. No standard contrary to what the defendant did was established by the evidence.

In like manner, we cannot place the facts in this record in the field of “common knowledge” or “gross negligence.” It was the first experience of this kind for the defendant. It can hardly be placed in the same category as a sponge in the abdomen, an instrument left behind, an X-ray burn or cases of like character which bespeak to the man in the street some carelessness on the part of somebody. If a kink of the cecum is something reasonably to be anticipated and guarded against by the obstetrician, this record does not establish it. The treatment during the first four days that failed in this patient in 1956 succeeded in 1953. The evidence establishes that the cecum was not in the surgical field of this Caesarean operation. To what extent medical science or good medical practice requires an exploratory examination of other organs in an abdominal operation of this kind is not shown by the record. To permit a jury to impose a liability for breach of a standard of conduct which is neither established by evidence nor within the area of common knowledge or gross negligence is pure speculation.

We, therefore, conclude that there is no evidence establishing a standard of care for a doctor in a case of this character and thus no showing of any breach thereof, nor can this occurrence be placed in the category of common knowledge or gross negligence. Accordingly, the judgment of the trial court in directing a verdict in favor of the defendant was correct.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellant, v. Charles J. Wallace, Defendant-Appellee.
    Gen. No. 11,187.
    Fourth District.
    July 30,1970.
    Allen F. Bennett, State’s Attorney of Moultrie County, of Sullivan, for appellant.
    Glenn & Logue, of Mattoon (Ralph C. Glenn, of counsel) , for appellee.
   TRAPP, J.

The trial court dismissed five counts of an indictment charging the defendant with official misconduct as Township Highway Commissioner of Sullivan Township, Moultrie County, Illinois. The prosecution appeals.

The trial court’s order dismissing such counts entered upon defendant’s motion to dismiss, included the language :

“. . . as it appears on the face of said counts that the acts charged are not committed within Moultrie County and it does not appear that any of said acts were among those mentioned as exceptions to the rule that criminal acts be prosecuted in the county in which they occurred.”

The several counts in issue are substantially similar in form and content, undertaking to allege the offense of official misconduct through violation of chapter 38, § 33-3 (c), 111 Rev Stats 1967:

“A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts: . . . .
“(c) With intent to obtain a personal advantage for himself or another, he performs an act in excess of his lawful authority; . . . .”

Each count alleges that defendant, as Sullivan Township Highway Commissioner, a public officer or employee, with intent to obtain a personal advantage for himself, performed an act in excess of his lawful authority. Each count sets forth a specified date upon which the Township Highway machinery was used for the purpose of completing a personal business transaction:

“. . . at a location outside the territorial limits of Sullivan Township, County and State aforesaid;

Upon appeal, it is the theory that at least part of the alleged acts occurred in Moultrie County, upon the argument that preparation to go on each of the several jobs had to take place in Sullivan Township, Moultrie County, and that the machinery had to be moved through and across that Township and County enroute to the several places where the work was done. During the course of the oral argument, several factual situations were suggested to counsel which would not include the acts or conduct argued.

Without considering the sufficiency of such acts, as argued, to constitute an offense, if they were, in fact, charged, it suffices to say that there are no allegations in the indictment averring such acts or conduct. The only conduct charge is the use of the equipment at a place, “. . . outside of the Township, County and State aforesaid. . .

The Constitution, Art 2, § 9, provides:

“In all criminal prosecutions the accused shall have the right to ... a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.”

The charge that an offense was committed within any particular county is a material averment which must be proven, and it is the duty of the prosecution to allege where the offense was committed. The People v. Allen, 413 Ill 69, 107 NE2d 826. Where there is a failure to allege the county in which the offense occurred, the jurisdiction of the court is not established. People v. Hill, 68 Ill App2d 369, 216 NE2d 212.

There is no averment of an act or offense in Moultrie County.

The order of the trial court is affirmed.

Affirmed.

SMITH, P. J. and RICHARDS, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Edwin Cummings, Defendant-Appellant.
    Gen. No. 11,206.
    Fourth District.
    July 30,1970.

      Kenneth E. Evans and James E. Fuson, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur, for appellee.
   TRAPP, J.

A jury found defendant guilty of aggravated battery in the shooting of one Caplinger. Post-trial motions and a petition for probation were denied, and a sentence of one to five years was imposed.

Defendant’s testimony raised the issue of self-defense. Issues raised on appeal are that defendant was not proven guilty beyond a reasonable doubt, and in the alternative, that the sentence imposed was excessive and should be reduced.

The principal locale concerned is a rural resort on the Sangamon River known as the River Rat Club. Caplinger was the owner and proprietor of the resort, which consists of a large building with adjacent areas where persons may reside in trailers for weekends and vacations. Defendant’s estranged wife was then living with one Robbins in a trailer on the premises.

The wife had left defendant in June, 1968, and in October commenced divorce proceedings. Apparently, thereafter, but at times not clearly shown in the record, defendant went to the resort upon two occasions to talk with his wife, but each time she refused.

Defendant was employed in Decatur and living at the home of his parents on January 29, 1969. His testimony as to preceding events is that pursuant to some arrangement, defendant drove to a town some 35 miles distant to meet a friend and fellow employee. For reasons not explained in the record, he took a suitcase which he kept packed and under the bed at the home of his parents. At about 5:30 p. m., he met his friend at a tavern where he had beer — in quantities stated to be two to five glasses. It appearing that the acquaintance had other engagements, defendant returned to Decatur. At a time and place not described, he determined to go to the River Rat Club to talk with his wife with a view of settling their affairs, either through divorce or reconciliation.

Following such decision, he recalled that it had been said that Caplinger sometimes carried a .38 revolver and had said that he would take care of any trouble that occurred. The record does not show to whom this was said, or to what trouble reference was made. Defendant thereafter took his .38 revolver from the packed suitcase and put it in a holster on his right side. The record shows that he placed between 20 to 35 rounds of ammunition in his pocket, it being explained that the sack which contained such broke and that he did not want the loose rounds in the suitcase. We note that on cross-examination, defendant testified that he had been a member of the River Rat Club until he got a new boat; that he had known Caplinger for some years and that Caplinger had never threatened him, had never told him not to come to the premises, and that there had never been trouble between them.

While the evidence is not precise, between 9:00 and 9:30 p. m., defendant entered the Club building. He procured a can of beer for himself and one for Caplinger. Present in the main room and watching television were Caplinger, the latter’s wife, Virginia Walters, Caplinger’s daughter, defendant’s wife, Luanna, Lloyd Robbins and John Rehfelt. With the exception of the defendant, Cap-linger and Rehfelt, those present were engrossed in television and could give but little testimony as to what occurred.

Those testifying upon the point agreed that defendant twice asked his wife to go to his car to talk with him and that twice she refused. Caplinger then said to defendant, in effect, “I don’t want any trouble with you.” Defendant denies this. It is agreed that defendant then asked Caplinger to go outside and that they did so.

Caplinger’s testimony is that upon going outside to the car, defendant put his hand under his coat and said, “I am going to use. it” — but Caplinger said, “You are not going to use it out here,” and that he had a gun, too. He then turned to go into the building, where he had a shotgun behind the door. At the door he reached for the shotgun and turned to find that defendant had entered immediately behind him and was standing at the head of a pool table; that he laid the shotgun on the pool table and said, in substance, “Are you crazy — I don’t want any trouble, I want you to get out.” Cap-linger further testified that he did not think there was a shell in the chamber of the shotgun; that he seized it to bluff the defendant and that he laid the weapon on the pool table when he found defendant in the room, as he would not fire it in the room where others, including children, were present. Defendant drew, or started to draw his revolver, and Caplinger lunged toward him, managing to grab one arm, and the parties went to their knees and defendant shot him.

Defendant testified that when they were outside, he, defendant, said he intended to see his wife and that Caplinger could not protect her; that the latter said that he was not protecting her, turned and went into the building and that at the door Caplinger turned on him with the shotgun in his hand. Defendant recalls “going for his gun”; that he believes that he was hit from behind and recalls nothing about what happened until he came to after the shooting.

Immediately after the shooting, defendant was grabbed and held on the floor by Rehfelt and Robbins and made to stay there until the sheriff’s men arrived. In this process, defendant received some sound blows to the face, a badly split lip and the web of Robbins’ finger was caught in the hammer of the revolver, making a bloody wound. The ambulance and sheriff’s men were summoned.

Defendant argues that under the circumstances it is unbelievable that Caplinger would turn his back on defendant and return to the building and that defendant would follow carrying a cigar and a can of beer in his hands. Those items were found on the floor by the pool table.

He contends that the testimony of Rehfelt is most accurate, and points to the statement that Caplinger reached for the shotgun and then the trouble started. The balance of the record, however, shows the testimony of Rehfelt to be that Caplinger turned away, put the shotgun down and that defendant drew the revolver and Caplinger lunged for it before the shot was fired.

A physician examined defendant at about 3:00 a. m. at a hospital, sutured the split lip and had defendant X-rayed from head to toe. The physician’s statement concerning defendant’s apparent dazed condition immediately follows counsel’s question concerning the injuries to defendant’s face. There is no medical testimony as to any bruise or wound suggesting that defendant was hit from behind. The available evidence is that the other men present were some distance from the door watching television.

Upon the issue of proof of guilt beyond a reasonable doubt, defendant urges that it is the duty of the reviewing court to resolve all facts in evidence upon a theory of innocence. He cites The People v. Sheppard, 402 Ill 347, 83 NE2d 587; The People v. Stevenson, 25 Ill2d 361, 185 NE2d 199 and People v. Connie, 52 Ill App 2d 221, 201 NE2d 641, wherein the reviewing courts reversed verdicts of guilty in cases of assault. In Sheppard, the testimony of the defendant was corroborated both by the testimony of disinterested witnesses and by physical evidence. In Stevenson, defendant was charged with assault with a knife. It was, however, found shut in his pocket after the complainant had nearly beaten the defendant to death with a tire iron. Connie concerned a controlled narcotics purchase where the “State agent” was not available to testify under dubious circumstances which created a gap in the chain of evidence. It is essentially the function of the jury to determine the weight of the evidence and the credibility of the witnesses. In this case such jury function must operate upon the contradictory testimony of Caplinger and defendant. The testimony of one witness, if clear and convincing, is sufficient to convict. The People v. Lacey, 24 Ill2d 607, 182 NE2d 730, and The People v. Novotny, 41 Ill2d 401, 244 NE2d 182. The jury observed these witnesses, as well as those other witnesses who generally corroborated Caplinger. They had an opportunity to consider the possible interest or bias arising from the relationships existing among them. Defendant’s testimony as to the circumstances of his taking up arms for the interview presents elements of credibility which are properly for the assessment of the jury. The trial court, who had similar opportunities to hear and observe, denied a post-trial motion. A reviewing court may not substitute its judgment for that of the trier of fact in determining the weight of disputed evidence or credibility of witnesses where the evidence is not so improbable as to raise a reasonable doubt of guilt. The People v. Novotny, 41 Ill2d 401,244 NE2d 182.

Defendant argues that the indeterminate sentence of not less than one year nor more than five years is excessive. In the trial court it was contended that the sentence should be fixed with a minimum of one year and a maximum of one year. Such a sentence is undesirable, is not permitted under a requirement for indeterminate sentence, and affords no opportunity for parole supervision, inasmuch as eligibility for parole and discharge under the sentence would occur at the same time.

While it is argued that defendant had no previous criminal record, evidence in mitigation was waived. The burden of presenting mitigating circumstances is upon the defendant, and he must make a substantial showing to justify a reduction of sentence upon review. The People v. Nelson, 41 Ill2d 364, 243 NE2d 225. The trial court had an opportunity to hear and observe the defendant during the various phases of the proceeding. Nothing in the record suggests that the sentence imposed is excessive.

Upon consideration of the several factors just discussed, the denial of probation was not an abuse of discretion. It is fortuitous that a homicide or other more serious offense did not occur.

The judgment is affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Alvin Hanserd, Defendant-Appellant.
    Gen. No. 68-176.
    Second District.
    July 31,1970.

      John T. Beynon, Public Defender of Winnebago County, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford and K. Craig Peterson, Assistant State’s Attorney, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The defendant, Alvin Hanserd, was found guilty by a jury, of the crime of rape, and subsequently sentenced by the court to a term of not less than ten or more than twenty-five years in the penitentiary. He has appealed to this court, and contends that the State failed to prove beyond a reasonable doubt that the act of intercourse, which was admitted, was performed forcibly and against the will of the complaining witness, and that she resisted the act; that the court improperly instructed the jury; and that the court erred in imposing a sentence of from ten to twenty-five years in the penitentiary on the defendant.

At the trial, the complaining witness testified that on the evening of October 22, 1967, she had been babysitting at the Robert Peterson home, and left there about 2:40 a. m.; that she returned directly to her home, conversed briefly with a younger brother, and went to bed; that she was awakened at an unknown hour of the morning and found a man sitting on the side of her bed; that he put his hand over her mouth and told her nothing would happen to her brothers if she remained quiet; that she attempted to sit up, but was pushed down, and was again cautioned to be quiet; that the intruder then had intercourse with her, asked her name, and she replied that it was- Linda — a name she had never used before; that he again cautioned her to be quiet; and that when she tried to get up and reach for the phone, he shoved it away.

The intruder then struck a match in the darkened room and wrote down the telephone number, which was an unpublished listing. He then asked if she needed any money and ran from the room.

The defendant’s version of the incident is entirely different. He testified that he met the complaining witness about two weeks before this incident at a lunch counter in a downtown Rockford variety store, and that when she sat down next to him, she commenced a conversation with him and gave him her telephone number. He further testified that he saw her on the night in question, between 2:30 and 3:00 a. m., in front of the Greyhound bus station in Rockford; that she pulled her car over to the side of the street, rolled down the window, said hello to him, stated that she was the girl whom he met at the lunch counter, and told him where she lived; that she stated that she had two brothers at home sleeping; that he could come over to the house, gave him directions on how to enter the house and how to get to her bedroom; and that she then left.

The defendant also testified that earlier that evening he had been at a party in the neighborhood of the bus station; that he was on his way home when he met the complaining witness, and after talking with her, he went back to the party, stayed for a short time and then went to the home of the complaining witness; that he went up to her bedroom where they talked for some fifteen or twenty minutes, then he had intercourse with her, with her consent; and that at no time did he use force, or threaten to harm her brothers. He also stated that he remained in the room for five or ten minutes after having intercourse, and then left for the party on Jefferson Street, where he had been earlier that evening, but that he first stopped at a restaurant and called his wife; and that this was about 3:30 a. m.

By virtue of the conflicting testimony of the accused and the complaining witness, we are faced with the issue of credibility. The weight of evidence and its credibility are, in the first instance, questions for the jury. Upon review in criminal cases, if we find there is not adequate credible evidence, or if it is improbable, unsatisfactory or insufficient to remove all reasonable doubt of the defendant’s guilt and create an abiding belief that he is guilty, the conviction will be reversed. We cannot say here that the complaining witness’ version of the incident is unbelievable, or is so incredible as to require a reversal. The People v. Wilson, 1 Ill2d 178, 187, 188, 115 NE2d 250 (1953); The People v. Potts, 403 Ill 398, 406, 86 NE2d 345 (1949). The mere conflict in the evidence is not sufficient to raise a reasonable doubt. The People v. Quevreaux, 407 Ill 176, 180, 95 NE2d 62 (1950); The People v. Davis, 10 Ill2d 430, 443, 140 NE2d 675 (1957). The overall gloss of the defendant’s testimony could well have strained the credulity of the jury.

Furthermore, there is much evidence in the record which tends to corroborate the testimony of the complaining witness. The officers, who investigated in response to the telephone call which the complaining witness made at 5:12 a. m., testified that they found her in an agitated, emotional state. The physician, who examined her shortly after the police had removed her to a local hospital, testified that she was in a state of semishock and was unable to answer questions clearly without crying; that it was necessary to give her a tranquilizer; that a physical examination verified a recent act of sexual intercourse; and that she indicated to him that she had been raped.

The testimony regarding subsequent 'events also corroborated the complaining witness’ testimony. Her mother testified that after October 22, the household began to receive telephone calls — most of which were in the early morning hours — and that the caller, if he asked for anyone, asked for “Linda” — the assumed name the complaining witness had used on the night of the incident in question. On November 18, the man who called asked whether he was talking with Linda, and identified himself as Bill Williams the man who had been at the house of the complaining witness, and stated that he wanted to see her again. The mother of the complaining witness (who answered the phone) stated that it was Linda talking and, acting on police instructions, arranged a meeting.

Pursuant to this arrangement, the defendant met the complaining witness in the appointed parking lot of a grocery store, and he identified himself to her as the man who had been at her home. He was then apprehended by the police. One of the arresting officers testified that the complaining witness appeared to be hysterical at this time. This evidence sufficiently corroborated the complaining witness’ version of the incident to sustain the conviction. The People v. Elder, 25 Ill2d 612, 614,186 NE2d 27 (1962).

The court gave People’s Instruction No. 15, which is as follows:

“The court instructs the jury that it is not the law of this State that a woman assaulted with an intent to commit rape upon her is required to resist by all violent means within her power. The law requires only that she does not consent, and that she do all that her age, strength and the attendant circumstances make it reasonable for her to do in order to manifest her opposition. She is not required to resist beyond exhaustion of her strength or beyond the point where the force used against her would make further resistance useless or impossible. The question of resistance is a question for you to determine, and not a question the court can decide.”

This trial took place prior to the mandatory use of DPI, Criminal Jury Instructions, and this particular instruction is not included therein.

The defendant contends that it fails to state that the want of consent by the complaining witness must be proven by the State beyond a reasonable doubt. However, in other instructions given in this case, the jury was correctly instructed relative to the elements of the crime of rape and that the burden of proof of those elements was on the State. The instructions as a whole, correctly stated the law of the case (The People v. Kolep, 29 Ill2d 116, 125, 193 NE2d 753 (1963)), and, therefore, People’s Instruction No. 15 was properly given. (The People v. Smith, 32 Ill2d 88, 92, 203 NE2d 879 (1965); The People v. Rickey, 375 Ill 525, 532, 31 NE2d 973 (1941).) We find no ground for reversal in connection with instructing the jury.

The defendant’s final contention is that the court erred in imposing upon him a sentence of from ten to twenty-five years. The power to reduce a sentence of the trial court pursuant to Supreme Court Rule 615(4) (Ill Rev Stats 1967, c 110A, par 615 (b) (4)), places a grave responsibility upon a reviewing court. The trial judge, who sees and hears the witnesses, is in a far better position to appraise and evaluate the likelihood of the defendant’s rehabilitation than is this court. The penalty decided upon by the trial court should not be reduced unless there are substantial reasons for doing so. We have no authority to exercise judicial clemency, and we should not alter a sentence because we would have imposed a different penalty had we been in the position of the trial court. People v. Valentine, 60 Ill App2d 339, 356, 208 NE2d 595 (1965).

The penalty prescribed for the crime of rape is an indeterminate term in the penitentiary with a minimum of not less than four years. (Ill Rev Stats 1967, c 38, par 11-1.) One convicted of rape may not be admitted to probation. (Ill Rev Stats 1967, c 38, par 117-1.)

At the hearing on aggravation and mitigation, evidence of the defendant’s two prior felony convictions was admitted. In 1948, at the age of 17, he was convicted of the offense of larceny. He was granted probation, which he violated by committing a burglary. His probation was revoked and he was sentenced from one to seven years in the State Penitentiary. In 1965, he was convicted in a Federal Court for the forgery of a government check. He was again granted probation.

There was also some favorable testimony as to the defendant’s reputation and his work record, but this testimony appears to be hearsay and not based on the firsthand knowledge of the witnesses who testified.

When a sentence is imposed within the limits prescribed by statute, an appellate court will not disturb that sentence unless it clearly appears that the penalty imposed constitutes a great departure from the fundamental law and its spirit and purpose, or that it is manifestly in excess of the proscription of section 11 of Article II of the Illinois Constitution requiring that all penalties be proportioned to the nature of the offense. People v. Taylor, 33 Ill2d 417, 424, 211 NE2d 673 (1965); People v. Smith, 14 Ill2d 95, 97, 150 NE 2d 815 (1958); People v. Juve, 106 Ill App2d 421, 428, 245 NE2d 293 (1969). Also see: People v. Scott, 117 Ill App2d 344, 253 NE2d 553 (1969).

The imposition of sentence is peculiarly within the discretion of the trial court and this discretion should not be interfered with unless it is clearly abused. People v. Nordstrom, 73 Ill App2d 168, 183, 219 NE2d 151 (1966). In the light of the seriousness of this offense, we neither find an abuse of discretion by the trial court in this respect, nor that the sentence is manifestly excessive. The power in reviewing courts to reduce sentences should be exercised with considerable caution. People v. Taylor, supra, 424.

Under the circumstances of this case, a reduction of sentence is not warranted, and the judgment is affirmed. People v. Taylor, supra, 424.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    People of the State of Illinois for the Use of Nelson Howarth, as Mayor of the City of Springfield, Illinois, Plaintiff-Appellant, v. The Gulf, Mobile, and Ohio Railroad Company, a Corporation, DefendantAppellee.
    Gen. No. 11,230.
    Fourth District.
    August 4, 1970.

      Charles H. Delano, of Springfield, for appellant.
    Patrick J. Cadigan, Gillespie, Burke & Gillespie, of Springfield, for appellee.
   SMITH, J.

The plaintiff appeals from a judgment order of the magistrate dismissing this suit against the defendant railroad company because the suit was not prosecuted by the State’s Attorney. The suit was an eleven-count complaint charging the defendant with multiple violations of Ill Rev Stats 1967, c 114, § 70 and § 71, which prohibits blocking railroad crossings and highways for longer than ten minutes and provides a money forfeiture of $10 to $100 for so doing. The case was entitled “People of the State of Illinois, for the use of Nelson Howarth, as Mayor of the City of Springfield, Illinois, plaintiff” against the defendant. The defendant filed a motion setting forth nine grounds for dismissal, one of which was:

“That Nelson Howarth, as Mayor of the City of Springfield, Illinois, and his attorney have no standing in this Court to prosecute this action for the reason that the State’s Attorney of Sangamon County has the absolute duty to prosecute all suits in his county against railroad or transportation companies prosecuted in the name of the People of the State of Illinois, pursuant to Chapter 14, Section 5, Illinois Revised Statutes (1967).”

The magistrate allowed the motion to dismiss on this ground, denied the other eight grounds and dismissed the suit.

At the threshold of our inquiry, we are confronted with the question as to whether this dismissal order is a final appealable order. Rule 273 of the Illinois Supreme Court, Ill Rev Stats 1967, c 110A, § 273, reads as follows:

“Unless the order of dismissal or a statute of this state otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merit's.”

Operating as an adjudication upon the merits, it is a final judgment and appealable under Rule 301, Ill Rev Stats 1967, c 110A, § 301. Neither the order of dismissal nor any statute of this state precludes this order from operating as an adjudication upon the merits under Rule 273. The defendant frankly and properly concedes that the trial court had jurisdiction of the People of the State of Illinois. It had jurisdiction of the subject matter of the suit. The venue was properly laid in Sangamon County. There was no failure to join an indispensable party. In fact, the State’s Attorney is not a party at all to the proceedings, indispensable or otherwise. Even had he instituted and prosecuted this suit, he would not be a party for the simple reason that he was not a party of record nor would he be injured by any judgment nor benefit from any judgment entered. In fact, in People v. Wabash, St. L. & P. Ry. Co., 12 Ill App 263 (1883), it was held that the State’s Attorney could not sue under the statute for his own benefit. He therefore can only be an attorney of record and not a party of record in such a suit nor a person for whose individual use such a suit can be brought. It follows therefore that the instant suit has no deficiency in jurisdiction, venue, or parties and therefore operates as an adjudication on the merits and is appealable.

The birthplace of this cause of action is Ill Rev Stats 1967, c 114, § 71, which reads as follows :

“Every engineer or conductor violating the provisions of the preceding section shall, for each offense, forfeit the sum of not less than $10 nor more than $100, to be recovered in a civil action, in the name of the People of the State of Illinois, for the use of any person who may sue for the same, and the corporation on whose road the offense is committed shall be liable for the like sum.” (Emphasis ours.)

Ill Rev Stats 1967, c 14, § 5, reads in part as follows:

“The duty of each state’s attorney shall be— . . .
Second— ... to prosecute all suits in his county against railroad or transportation companies, which may be prosecuted in the name of the People of the State of Illinois.”

From this statute, it is abundantly clear that the State’s Attorney might have instituted and prosecuted this suit on behalf of a private individual or on behalf of the public generally. Does it follow, however, that since he did not do so no cause of action exists when prosecuted by a private attorney for “any person?” We think not.

The language used in the Act is “for the use of any person who may sue for the same.” It seems to us that the General Assembly has specifically permitted a person to use the name of the People of the State of Illinois in suing for a violation of the roadblocking statute. While the State’s Attorney’s Act makes it the duty of the State’s Attorney to prosecute such a suit, we do not believe that the fact that he was not asked to do so or refused to do so militates against the right of any person to sue in the name of the People of the State of Illinois with his own counsel. Accordingly, the judgment of the trial court is reversed and this cause is remanded to that court for proceedings not inconsistent with the views expressed in this opinion.

Reversed and remanded.

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