text:
    John T. Meyers, Plaintiff-Appellant, v. Board of Education of the City of Chicago, a Body Politic and Corporate, and Joseph C. Murphy, Defendants-Appellees.
    Gen. No. 53,430.
    First District, Fourth Division.
    February 25, 1970.
    Merwin Auslander, of Chicago, for appellant.
    James W. Coffey, of Chicago (John T. Mehigan and Richard E. Girard, of counsel), for appellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This was an action brought by the plaintiff, an employee of the Board of Education of the City of Chicago, against the Board and its Director of Civil Service Personnel, Joseph Murphy, to recover damages alleged to have been sustained by a slanderous statement made by Mr. Murphy. The complaint alleged that on March 14, 1968, at 10:00 a. m. at the offices of the Board of Education in the presence of other persons Mr. Murphy committed the following slander against the plaintiff: “You are a con man, Oh, yes, you are, you are a con man and a professional con man.”

Defendants filed a motion to strike the complaint and dismiss the action pointing out that the action was expressly barred by Ill Rev Stats 1967, c 85, §2-107, which provided:

A local public entity is not liable for injury caused by any action of its employees that is libelous or slanderous.

The motion further stated:

3. The complaint alleges in paragraphs 2 and 5:

“2. That the defendant, JOSEPH C. MURPHY, at all times mentioned herein was the agent and employee of the defendant, BOARD OF EDUCATION, CITY OF CHICAGO, and held the title of Director of Civil Service Personnel.”
“5. That at the time said JOSEPH C. MURPHY made the aforementioned statements, he was acting as the duly authorized agent and employee and within the scope of his employment of the Board of Education, City of Chicago.”

The complaint therefore shows on its face that the action is expressly barred as to the defendant Murphy by c 85, § 2-201, Ill Rev Stats 1967, which provides as follows:

“Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.”

4. The complaint shows on its face that the alleged statement, if made, was spoken while said defendant Murphy “was acting as the duly authorized agent and employee and within the scope of his employment of the Board of Education, City of Chicago” and said statement was therefore absolutely privileged for which reason plaintiff’s complaint fails to state a cause of action.

After hearing arguments on the motion the court granted defendants’ motion to strike the complaint and dismiss the action. It is from this order that plaintiff appeals.

On appeal plaintiff contends that (1) sections 2-107 and 2-201 of chapter 85 of the Ill Rev Stats are unconstitutional and (2) the words spoken by Mr. Murphy were slanderous per se. Defendants argue that plaintiff’s contention alleging that sections 2-107 and 2-201 are unconstitutional should be stricken from his brief since the Appellate Court is without jurisdiction to determine the matter and that a transfer to the Supreme Court would be futile because the constitutionality of these sections was not raised in the trial court and the argument is made for the first time on appeal. Defendants also argue that the words spoken by defendant Murphy were not slanderous per se.

Plaintiff contends for the first time on appeal that sections 2-107 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act are unconstitutional. Supreme Court Rules 302 and 365 provide, in part:

Rule 302. Direct Appeals to the Supreme Court.

(a) Cases Directly Appealable.

Appeals from the final judgments of circuit courts shall be taken directly to the Supreme Court ... in cases involving a question arising under the constitution of the United States or of this State. • • •

Rule 365. Appeal to Wrong Court.

(b) Transfer.

If a case is appealed to either the Supreme Court or the Appellate Court which should have been appealed to the other, the case shall be transferred to the proper court, ....

In People ex rel. Toman v. Belmont Radio Corp., 388 Ill 11, 57 NE2d 479, the appellant, Belmont Radio Corporation, attempted to argue the constitutionality of a statute for the first time on appeal. The Supreme Court, at page 19, held:

“[T]he question is not preserved so that it may be considered on this appeal. As previously stated, there is nothing in the record to show that the constitutional question was passed upon by the trial court. ... In absence of something in the record to show the constitutional question was called to the attention of the court and a ruling obtained, there is no basis for assigning error on such question.
“The rule is well settled that the question of the constitutionality of a statute can not be raised for the first time in a court of review. In order for this court to pass upon a constitutional question the record must disclose that the objection was called to the attention of the trial court and ruled upon by it. (Cummings v. People, 211 Ill 392, Griveau v. South Chicago City Railway Co., 213 Ill 633; Moses v. Royal Indemnity Co. 276 Ill 177.) Errors assigned upon constitutional questions must, like other assignments of errors, be based upon the record itself. . . .
“The constitutional questions are not reviewable.”

In a more recent case, Terrill v. City of Chicago, 72 Ill App2d 286, 294, 219 NE2d 705, the plaintiff also sought to raise constitutional issues for the first time on appeal in this court and the court held:

Appeals from final judgments of circuit courts shall be taken directly to the Supreme Court in cases involving a question arising under the constitution of this State. (Ill Rev Stats 1965, c 110, § 101.28-1.) Since this is an appeal from a final judgment of the circuit court involving a question arising under the constitution of this State, the appellate court does not have jurisdiction to hear the same. The defendant, Catholic Bishop of Chicago, has moved to strike all constitutional issues raised in this appeal. The plaintiff has asked in the alternative that the constitutional issues be transferred to the Supreme Court. While under present law the appellate court is given authority to transfer to the Supreme Court, in our opinion such a transfer would be futile. Since the constitutional issues raised on this appeal were not raised in the trial court, the Supreme Court would not consider them. Village of Lansing v. Hacker, 7 Ill2d 258, 130 NE 2d 265; People v. Estep, 409 Ill 125, 97 NE2d 823. The Supreme Court of Illinois has repeatedly held that it will not decide constitutional questions which have not been raised in the trial court. The defendant, Catholic Bishop of Chicago, has moved to strike all constitutional issues raised in this appeal and the same are stricken.

The defendants have moved to strike all reference made by the plaintiff to the constitutionality of sectians 2-107 and 2-201 in the appeal and they are strieken.

Therefore, as sections 2-107 and 2-201 expressly bar the plaintiff’s action against the Board and Mr. Murphy, as Director of Civil Service Personnel for the Board, we find that the trial court properly granted defendants’ motion to strike the complaint and dismiss the action.

Having reached the aforementioned conclusion, it is unnecessary for us to discuss plaintiff’s other contentian.

The j udgment is affirmed.

Affirmed.

STAMOS, P. J. and ENGLISH, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE ENGLISH

license: Public Domain

text:
    Malvina Klein, d/b/a Apex Associates, Plaintiff-Appellee, v. Morton Ickovitz, Defendant-Appellant.
    Gen. No. 54,103.
    First District, Fourth Division.
    February 25, 1970.

      Nathan Shefner, of Chicago, for appellant.
    Irving B. Ribstein, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Defendant appeals from a judgment of $1,280 for rent.

A stipulation of facts shows that in an earlier forcible detainer action, judgment for possession was entered for plaintiff in a cause entitled, “Louis Klein and Malvina Klein, d/b/a Apex Associates vs. Morton Ickovitz,” and defendant was evicted. There was no appeal from that judgment and its validity is not questioned in the instant case.

The subject matter of this cause (eight months’ rent to the end of the lease term, some of it accruing after eviction) was previously litigated, resulting in a judgment against defendant which was reversed on appeal. Klein v. Ickovitz, 72 Ill App2d 59, 219 NE2d 73. That suit had been brought by Louis Klein, d.b.a. Apex Associates, and, after judgment, all pleadings and papers were amended to add Malvina Klein as a party plaintiff. In explaining its reversal, another division of this court made the following observations at page 62:

Judgment was originally entered in the name of Louis Klein, d.b.a. Apex Associates. On this state of the record we can only conclude that Louis Klein was the plaintiff. Defendant moved to vacate the judgment on the ground that Louis Klein had no interest in the leased premises. At that time Louis Klein requested and was permitted to add Melvina Klein’s name to the pleadings and judgment order, presumably so that the judgment would read in favor of one who had signed the lease. The addition of Melvina Klein was the equivalent of adding a new party plaintiff after judgment.
Since we have concluded that the judgment in favor of Louis Klein cannot be sustained and that the addition of Melvina Klein as party plaintiff after judgment was improper, the judgment must be reversed.

Defendant’s primary contention now is that the earlier decision, just quoted, is res adjudicata of the issues raised in the instant case and should bar plaintiff’s claim. Defendant correctly argues that “a prior adjudication between the same parties is conclusive upon them . . . .” (Menconi v. Davison, 80 Ill App2d 1, 6, 225 NE2d 139), but this doctrine is inapplicable here. It is true that the prior action involved a claim for rent under the same lease, but the parties were not the same. The essence of this court’s earlier decision was that the addition of Malvina Klein as party plaintiff after judgment was improper. Thus, for purposes of this cause, Malvina Klein is a party to the claim for the first time. We, therefore, do not have the identity of parties between the two actions which is necessary to invoke the principle of res adjudicata.

Defendant next contends that this suit brought by Malvina Klein alone, should be barred by the “admission” contained in pleadings in the earlier suit in which it was alleged that she and Louis Klein together did business as Apex Associates. Defendant concedes that he obligated himself under the lease to Apex Associates, but having convinced the court in the other litigation that Louis Klein had no interest as lessor, defendant would now have us hold that Louis is a necessary party to the present suit. To state this proposition is to disclose its lack of merit.

Defendant next contends that plaintiff had no authority to enter into the lease agreement, since title to the premises was held under a land trust by the trustee, Cosmopolitan National Bank of Chicago. The lease between Apex Associates and defendant, which is the basis of this suit, was executed as follows:

For Apex Associates: Malvina Klein
In the presence of: Louis Klein
Tenant sign here: Morton Ickovitz
It is stipulated that Malvina Klein is the sole beneficiary of the land trust and that the trust agreement contains a provision that she
shall in . . . her . . . own right have the full management of said real estate and control of the selling, renting and handling thereof ....

We find this language clearly effective to give Malvina Klein the requisite authority to enter into the lease in question as she did.

Finally, defendant challenges plaintiff’s authority to bring this action, arguing that the holder of the title is the proper plaintiff. This court, however, has upheld the right of a land trust beneficiary-lessor to maintain an action for rent. Bellows v. Ziv, 38 Ill App2d 342, 187 NE2d 265. See also Jakovljevich v. Alvarez, 113 Ill App2d 302, 252 NE2d 60. We see no reason why this principle should not be applicable to rent accruing subsequent to eviction, since the lease agreement expressly states that the lessee’s duty to pay rent survives a forcible detainer proceeding, and the validity of such a provision is well established. See Grommes v. St. Paul Trust Co., 147 Ill 634, 35 NE 820; Vintaloro v. Pappas, 310 Ill 115, 141 NE 377; Klein v. Ickovitz, 72 Ill App2d 59, 219 NE2d 73. The obligation to pay rent is not dependent upon title in the lessor, but is governed by the lease agreement.

The judgment of the Circuit Court is affirmed.

Affirmed.

STAMOS, P. J. and DRUCKER, J., concur.


author: PRESIDING JUSTICE STAMOS.

text:
    Martha Evans, Plaintiff-Appellee, v. Richard J. Daley, Mayor of the City of Chicago and Local Liquor Control Commissioner, John Marcin, City Clerk of the City of Chicago, and William T. Prendergast, City Collector of the City of Chicago, Defendants-Appellants.
    Gen. No. 53,535.
    First District, Fourth Division.
    February 25, 1970.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Henry N. Novoselsky, Assistant Corporation Counsel, of counsel), for appellants; no brief for appellee.
   Opinion by

PRESIDING JUSTICE STAMOS.

Not to be published in full.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Raymond Morgan, Defendant-Appellant.
    Gen. No. 52,614.
    First District, First Division.
    February 26, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel M. Flaum, and James B. Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was charged with the crimes of unlawful possession of a narcotic drug and armed robbery, to which he pleaded not guilty. The jury found him guilty in manner and form as charged in the indictment and the court sentenced him to serve a term of not less than one year and not more than ten years in the penitentiary. The record and briefs submitted by the appellant and appellee are silent as to what action, if any, was taken with reference to the unlawful possession of a narcotic drug charge and appellant does not raise it on appeal. We are therefore not considering it. Defendant presents four issues on appeal:

1. Admission of a statement allegedly made by the defendant without the court first determining the admissibility of said statement.

2. Identification of the defendant by the complaining witness at the show-up and at the trial were the result of a procedure so suggestive that defendant was denied due process.

3. Defendant was not proven guilty beyond a reasonable doubt.

4. Court’s instruction, which assumed controverted facts to be true, was in error.

On January 6, 1967, at about 9:15 a. m., a man entered a grocery store of Mrs. Lorraine Schuett at 1027 Sherman Avenue, Evanston, Illinois. She was alone. He placed a white handkerchief on his face, drew a pistol and approached Mrs. Schuett, pointing the gun at her. She backed away from him and lay down on the floor behind a counter. She heard the cash register open and close. He stood near her over the counter. She heard a click of the gun. He told her to lie there for ten minutes or he would be back. Mrs. Schuett testified, “After the robber left the store, I noticed some money was gone. Between fifty and sixty one-dollar bills and two five-dollar bills.”

Mrs. Schuett called the police, giving them a descriptian of a man who was a negro, wearing a narrow brim dress hat and a light beige overcoat, dark dress trousers, black shoes and stockings, and sunglasses. Officer Edward McCarthy and his partner received a call about the robbery and proceeded to the Main Street “L” station, which is two to three and a half blocks away from the store which was robbed. McCarthy saw a man on the “L” platform who fit the description of the robber and arrested him. Upon searching him the officer found a revolver. The alleged robber, who is now the defendant, was taken to the Schuett store about 9:30 a. m., where Mrs. Schuett identified him as the man who robbed the store. She noted at the time that the defendant was not wearing sunglasses. The officer found a pair of sunglasses on the person of the defendant, which Mrs. Schuett identified as those worn by the robber.

When the defendant was taken to the police station he had in his possession $67.15, consisting of fifty three one-dollar bills and two five-dollar bills and some change. He told Officer McCarthy about 11:00 a. m. that morning that he had won the money in a card game.

At the trial, defendant denied that he robbed the grocery store. He testified that he came to Evanston on the morning of January 6, to look for a part-time job. He was employed by the Cook Chocolate Company in Chicago from 10:00 a. m. to 7:30 p. m. He did not know the name of the company where he tried to get the part-time employment. Actually, he did not go in to inquire, because he met a man who told him they were not hiring. He testified that the money he was carrying was part of his paycheck, which he had cashed two days before, and the predominant amount consisted of singles. He admitted carrying the gun, explaining that it was for self-protection.

We are mindful of the fact that the prosecution and defense stipulated that the pretrial statements of the defendant to Officer McCarthy would not be offered in evidence. However, after defendant denied that he had told Officer McCarthy that the money found on his person was the proceeds of a check he had cashed two days earlier and was not the money he said he had won in a card game, the defendant opened the door to a conversation to which he is now objecting on appeal. The State then called Officer McCarthy in rebuttal. Furthermore, prior to McCarthy’s rebuttal testimony, the Assistant State’s Attorney informed defense counsel that McCarthy would be called to refute the defendant’s testimony. In our judgment, defendant’s statement was not an admission of the offense. Actually, defense counsel did not object to McCarthy’s rebuttal. No motion to suppress defendant’s statement was made, nor was there a request for a hearing on the admissibility of McCarthy’s rebuttal testimony. The record shows the following rebuttal testimony of Officer McCarthy:

Q. “And, Officer McCarthy, you testified on direct examination that the defendant had $67.15 on his person?”
A. “That’s correct.”
Q. “Did Mr. Morgan make any statements regarding where he had obtained this money?”
A. “He did.”
Q. “Where was that statement made sir ?”
A. “The statement was made in the police station.”
Q. “This is on the day of the arrest?”
A. “It was.”
Q. “Who was present?”
MR. BANKS (defense counsel): “I will enter an objection.”
THE COURT: “Objection overruled.”
THE WITNESS: A. “Myself, Officer Torben Nielsen, Sergeant Jerome DeGross, Officer Harry Heines and Officer Steinbach.”
Q. “And would you tell us what the defendant said, sir?”
A. “In regard to where he got the money ?”
Q. “Yes.”
A. “He said to me that he won it in a card game.”

Defense counsel, after saying “I will enter an objection” gave no reason for the objection. It appears that he was objecting to the ¡question “Who was present?” When the court overruled the objection, there was no further objection. Such an objection, when not accompanied by supporting reason, cannot be later raised on appeal. Failure to object specifically at the trial is a waiver of the issue on appeal. People v. Merrill, 76 Ill App2d 82, 221 NE2d 145 (1966); People v. Myers, 94 Ill App2d 340, 236 NE2d 786 (1968); Wigmore, Evidence, § 18 (3rd ed, 1940).

The cases cited by defendant in which convictions were reversed because no hearing on admissibility was conducted do not apply and are distinguishable on their facts from the instant case. In all of them, the trial court was apprised of defense counsel’s request for a ruling outside of the jury’s presence on the admissibility of the statements of the defendants. All of them involved admissions of the offenses. In the instant case, we have testimony of the defendant which was admitted for impeachment purposes. This statement was not an admission of the offense defendant was charged with.

Defendant was apprehended within a short distance of the store within ten minutes after the robbery. The complaining witness, who was in the store where the robbery took place, identified the defendant fifteen minutes after the robbery and also made an in-court identification. Defendant contends this denied him due process and that he was not proven guilty beyond a reasonable doubt. The complaining witness’ description of the robber fit the defendant as to his appearance and clothing. She was not emotionally upset at the time and did not hesitate when she recognized him. She told police that the robber wore sunglasses and although the defendant wore no glasses at the time he was brought to the store by the police, he did have glasses in his pocket. When the glasses were put on him, the complaining witness positively identified him. The manner of identification applies only to the weight of identification and not its competency. People v. Brinkley, 33 Ill2d 403, 211 NE2d 730 (1965) People v. Newsum, 98 Ill App2d 219,240 NE2d 780 (1968).

“Reasonable confrontation of this type, in the course of (or immediately following) a criminal episode, seem to us to be wholly different from post-indictment confrontations (such as those in the Wade and Gilbert cases) in serious crimes after a significant interval of time, and in the absence of already appointed counsel.” Commonwealth v. Bumpus, 354 Mass 494,238 NE2d 343 (1968).

We find no merit in defendant’s objections and conclude that the trial court did not err. In our opinion United States v. Wade, 388 US 218 (1967); Gilbert v. California, 388 US 263 (1967); Stovall v. Denno, 388 US 293 (1967), present different factual situations and have no application to the instant case.

We agree with defendant’s contention that a judgment of conviction can be sustained only on credible evidence and must rest on the strength of the prosecution’s case and not on the weakness of the defendant’s case. We have evidence of a description of the defendant which fits him as to his appearance and clothing. The identification almost immediately after the robbery is positive and unequivocal. At the time of his arrest, the defendant had on his person certain money which corresponded to the amount and denominations which was in the register prior to the robbery. His explanation of the money he had was impeached. He had a pistol, a white handkerchief and sunglasses which were found on his person after the arrest. The defendant said he worked in Chicago from 10:00 a. m. to 7:30 p. m. He was in Evanston, which is quite a distance from his place of employment, at about 9:00 a. m., seeking another job at a place which he could not identify. The sum total of the circumstances surrounding this robbery lead to the conclusion that the jury’s verdict was based on evidence which found him guilty beyond a reasonable doubt.

The defense lastly contends that the trial court erred in giving an instruction which assumed controverted facts to be true. Specifically, defendant objected to the following instruction:

“(T)he exclusive possession, shortly after the commission of a larceny, robbery or burglary, of stolen property, the proceeds of the crime, if unexplained, may of itself raise an inference of guilt of the person having such possession, sufficient to authorize a conviction in the absence of any other evidence of facts or circumstances in evidence, which leave in the mind of the jury a reasonable doubt as to the guilt of such person.”

The trial court overruled the objection and the instruction was given. This instruction was affirmed in People v. Stone, 349 Ill 52, 181 NE 648 (1932) and in People v. Carvin, 20 Ill2d 32, 169 NE2d 260 (1960).

The defendant calls our attention to People v. Morris, 9 Ill2d 359, 137 NE2d 840 (1956), in which an instruction similar to the one questioned in the instant case was criticized and the judgment of the trial court, finding the defendant guilty was reversed. In the Morris case one of the controverted questions was whether a confession had been made. The trial court instructed the jury as follows:

“There has been admitted in evidence in this case a confession. It is for the jury to determine from all the facts and circumstances in the case what weight or credit shall be given by them to this confession, and shall be considered by the jury with all the other evidence in the case in determining the guilt or innocence of the defendant.”

This instruction was bad, for it said that a confession had been admitted into evidence despite the defendant’s denial that he had confessed. In the instant case, the question whether the property was stolen was left to the jury. If this point needed clarification, defendant could have tendered another instruction. The failure to give such instruction is not error where the defendant did not request that it be given. "The trial judge has no duty to give instructions on his own motion where defendant does not request them.” People v. Garvin, supra, page 36.

We have examined the entire record and conclude that the defendant had a fair trial and that he was found guilty on proper evidence.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fred Turner, Defendant-Appellant.
    Gen. No. 53,156.
    First District, First Division.
    February 26, 1970.

      Dominic R. Fichera, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John R. McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Fred Turner, pleaded not guilty to a two-count indictment charging him and one, Paul Gibson, with the offenses of robbery and theft from the person of Loretta Johnson of $14 and a ring. After a bench trial, the defendant was convicted of theft from the person and was sentenced to two to four years in the Illinois State Penitentiary.

The complaining witness, Loretta Johnson, testified that on October 20, 1967, about 10:00 a. m., she was standing at a bus stop at Western and Madison. Paul Gibson, whom she had seen before, approached her and asked if he was her precinct captain. As they talked, the defendant, Fred Turner, joined them. Mrs. Johnson had also seen him before. She testified that while both Gibson and Turner were standing in front of her, Gibson demanded her money, and when she argued with him he also demanded her wedding ring. During this time, the defendant said nothing. Mrs. Johnson testified that she extended $14 and her ring to Fred Turner, who took it and ran. When asked why she handed it to Fred Turner, she said because she saw that he and Gibson were together. Two days later, the defendant whom she recognized came into the drugstore where she worked. She phoned her husband who arrived in a few minutes. Mrs. Johnson told her husband that Turner was the man who robbed her, and she said Turner said, “No, it wasn’t me, it was my twin brother.” Her husband fought with the defendant until the police were called and the defendant arrested.

The defendant denied robbing Mrs. Johnson. He did not recall having seen her before. He said that he was in the vicinity on the day in question and he knew Paul Gibson. The defendant testified that the first he knew of the theft was when two or three men accused him of the crime in the drugstore and a fight ensued.

It is the contention of the defendant that he did not commit the offense of theft from the person and that the version of the incident related by the prosecutrix is unreasonable. In support of his contention the defendant cites People v. Barnes, 311 Ill 559, 143 NE 445. In that case, Lillian Barnes was in an automobile which had been stolen by her escort. The court held that the mere presence of a person in a stolen car was not enough to constitute her a principal unless there was something in her conduct showing a desire to encourage, incite or in some manner aid, abet or assist the actual perpetrator of the crime. Reliance on this case and other similar ones by the defendant is misplaced. The, defendant in the instant case was not an innocent bystander. He was standing in front of the complainant with Paul Gibson when Gibson demanded her money. He actually took the money and the ring from the extended hand of Mrs. Johnson, and then he ran. By his conduct, the defendant was shown to have aided, abetted and assisted in the theft as the trial court properly found. In weighing the evidence, the court was not required to disregard inferences that flowed normally from the evidence before it. People v. Brown, 27 Ill2d 23, 26,187 NE2d 728,730.

The defendant also contends that the identification of him by the complainant is vague, uncertain and so doubtful that it does not produce an abiding conviction of guilt. Since Gibson was the only one who spoke to her, the defendant argues that the second man would not have been the object of her attention nor would her memory have focused as strongly on his appearance and identity. We disagree. The record shows that the complainant had seen the defendant before this incident. The theft took place at 10:00 a. m. in broad daylight. Two days later, the complainant identified the defendant as the thief when he came into the drugstore where she worked. It has often been held that the testimony of one witness, if positive and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused. People v. Solomon, 24 Ill2d 586, 591, 182 NE2d 736, 739. We find no basis in the record for substituting our judgment of the complainant’s credibility for that of the trial court.

The judgment of the Circuit Court is therefore affirmed.

Affirmed.

MUEPHY and ADESKO, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    Edna Mraz, Plaintiff-Appellee, v. Jewel Tea Company, Inc., Defendant-Appellant.
    Gen. No. 53,325.
    First District, First Division.
    February 26, 1970.

      Herbert F. Stride, of Chicago (Herbert F. Stride and William J. Harte, of counsel), for appellee.
    Meyers and Matthias, of Chicago (James M. Redding and Edward A. Scott, of counsel), for appellant.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action where plaintiff, a customer in defendant’s food store, slipped and fell on a lettuce leaf after leaving a checkout counter. Defendant appeals from a $25,000 jury verdict and judgment in favor of plaintiff.

On appeal “it is defendant’s theory that its store was properly maintained in a manner not inherently dangerous; that the floor surfaces were swept and cleaned at regular intervals daily pursuant to management instruction ; that the area provided for invitees to enter and depart from the store was well lighted and regularly cleaned and swept; that the vegetable matter, described as being the cause of the accident, in the area where the accident occurred could not be said to have come there as the exclusive result of actions or negligence attributable only to the defendant or its employees; that the defendant violated no legal duty owed to the plaintiff and was guilty of no negligent act charged in the complaint.”

Plaintiff, a seventy-two-year-old woman at the time of trial, testified that on March 28, 1966, at about 1:00 p. m., she entered defendant’s store at 1922 West 103rd Street in Chicago to make a purchase. She was familiar with the store, having been a customer there for some time, and the store was light and bright. She purchased three steaks and was carrying them and her purse when she passed through the checkout counter at the front end of the store. She was wearing an ordinary pair of casual shoes with low heels. After she had been checked out by a Mrs. Briggs, she took three or four steps from the checkout counter when she slipped and her foot went out from under her, and she fell in a sitting position. As she was there on the floor she noticed a crushed green vegetable leaf behind her and a dark skid mark on the floor. The leaf was a little bigger than a silver dollar, and she saw a small piece of vegetation on her shoe.

On cross-examination plaintiff testified that she did not see any green thing on the floor before she fell. As she left the checkout counter and was walking toward the door she was looking straight ahead, probably at eye level. She did not look at the floor because she was sure if she had seen anything green she could have walked around it, and she did not purchase any lettuce. The floor was in good condition, and she saw no other debris on the floor after she fell, only the lettuce leaf.

Raymond Pepping, called by plaintiff under section 60 of the Civil Practice Act, testified that he was manager of the store on the date in question, but was not in the store at the time of the occurrence. The employees in the store were under his management and direction. He described in detail the check-out routine. The first time that a customer actually comes in contact with the parcel or groceries is when the Jewel employees and personnel have finished ringing up the bill and have finished bagging it into the various bags. The point where the wrapping or parceling is done is at the point at which the customer is given the bag to take home or given his grocery cart to wheel out to his car. The store had a definite schedule for cleaning, sweeping and mopping. Employees are schooled and told to pick up anything from the floor immediately. In his years of experience he had not seen debris and articles or dirt and other matters lying in the area at the end of the cashier’s checkout counter.

Pepping further testified as to the routine and handling of lettuce and other produce. The vegetable counters were located at the east wall, furthest toward the back of the store. Lettuce is brought in by produce boxes, 24 heads to the box. They are then put under refrigeration until such time they are needed and they are processed or trimmed. They are packed in the back room and then brought onto the sales floor for display. Each head of lettuce is individually wrapped in cellophane. The lettuce boxes are salvage and are never used to parcel groceries.

Sharon Vrbousky, called as a witness on behalf of plaintiff, testified that she was a checker at the store on March 28, 1966. Her duties consisted of checking out customers, checking the floors, sweeping the floors and checking customers’ carts to be sure there was nothing left in the carts. There was a routine in the store of bringing empty boxes up to the front for use by the cashiers in packaging, and the type of boxes that were brought up included “lettuce boxes, anything from produce.” Her instructions were that if she saw a piece of lettuce or anything on the floor, she was to pick it up. On March 28, 1966, she had occasion to sweep the checkout counters in the area in which the occurrence took place. She said, “I don’t remember what hour of the morning it was that I swept the area in question. From reading my statement of April 5, 1966, it says I started to sweep the floor about 11:45. That was an approximate time. After I swept the floors I went to lunch. I was not present on the premises when the occurrence took place. I was upstairs having lunch.” When she returned from her lunch period, she saw skid marks on the floor, and plaintiff had been taken from the store. On cross-examination she testified that she went to lunch anywhere from 11:00 to 2:00 p. m. She took an hour for lunch on the day in question. She had finished sweeping just before she went to lunch.

The testimony of other employees of the store shows the following: Edward Collins, an assistant manager, saw plaintiff in a sitting position in the aisle, with a piece of lettuce nearby and a skid mark approximately a foot. Emma Briggs, a cashier, testified that she had checked out plaintiff on the day in question. She did not see defendant fall but saw her after she fell in the area between the third and fourth registers. Patricia Weber, a checker and cashier, testified that the bagging was done next to the cash register for small packages but more usually done at the end of the counter where the packers stood in the area beyond the counter. Rosemary Scalzetti, an assistant service manager, testified that a customer told her a woman had fallen and was sitting in the middle of the floor. She went over and noticed a skid mark about six inches long and that a piece of lettuce was on plaintiff’s shoe, a walking-type shoe. Also, John Bemdl, a fireman called to the scene in an ambulance, testified that he saw plaintiff sitting on the floor with a skid mark of 13 inches nearby.

Defendant’s witnesses included Raymond Pepping and Rosemary Scalzetti. Raymond Pepping testified that the only boxes used for packaging for customers were boxes in which dry groceries had been delivered. Rosemary Scalzetti testified that one of her duties was to see that the floor was clean between the service counters and the plate glass windows in the area where plaintiff fell. She saw a 50-pound size bag next to plaintiff. She saw a skid -mark on the floor, and there may have been a little piece of vegetable green on the floor. The floor had been swept four to five times before the occurrence, the last time about five minutes before. All personnel were schooled and instructed to keep the floor clean.

Defendant’s witnesses also included Margaret Burka, Emma Briggs, Patricia Weber and Edward Collins. Margaret Burka, a checker and stock girl, testified that one of the employees’ duties was to keep the store clean and sweep “when it’s necessary.” Checkers were instructed to check the customer’s cart to see that everything was out of the cart. That would include lettuce leaves. A wastebasket was provided at each counter for debris. On cross-examination she stated that she did not personally see anyone sweep that day. The debris that could be on the floor at the checkout counters could be paper or food or vegetable matter, and that was the type of debris the employees were instructed to clean up.

Emma Briggs, who checked out plaintiff in aisle 2, saw Sharon Vrbousky sweep the front end of the store fifteen minutes to a half hour before the plaintiff fell. She further stated that there were two purposes for checking the customers’ carts: one, to see that all the purchases were out of the carts, and the other purpose was for cleanliness.

Patricia Weber saw Mrs. Vrbousky sweep fifteen or twenty minutes before plaintiff fell, and the floor where plaintiff fell was clean. On cross-examination she stated she did not see the vegetable matter on the floor but stated she did see the skid mark. She stated sweeping was done about 1:15, before Mrs. Vrbousky went to lunch. She further stated that a statement that was read to her as of April 11, 1966, was true and correct when she said she did not know if anyone swept the floor prior to the woman falling.

Edward Collins testified that when he observed plaintiff on the floor she was approximately right in the middle of the checkout area in the front end of the store, between the plate glass windows and the checkout counters. He saw a large bag of groceries next to her, which he described as about what was called a 50-pound bag. The floor was clean except for a lettuce leaf. The ordinary routine was to keep the floor swept two or three times daily.

At the conclusion of all the evidence, defendant’s motion for a directed verdict was renewed and was again denied by the trial court. Post-trial motions for judgment n. o. v. and a new trial were also denied.

Defendant contends that “the plaintiff completely failed to prove that the defendant did not exercise reasonable care and caution in the maintenance of its store and completely failed to prove defendant guilty of negligence.” It maintains that at best the evidence shows that plaintiff was an invitee; that employees of defendant filled bags with merchandise purchased by customers at the front end of the checkout counter in the area in which customers entered and left the store; that boxes in which produce and groceries were received at the store were stored in this front area for the convenience of checkers employed by the store and customers wishing to use them; and the floor in the area where the incident occurred had been swept half an hour to an hour and a half before the incident. Among the authorities cited are Schmelzel v. Kroger Grocery & Baking Co., 342 Ill App 501, 96 NE2d 885 (1951), and Wroblewski v. Hillman’s, Inc., 43 Ill App2d 246, 193 NE 2d 470 (1963).

In Schmelzel v. Kroger Grocery & Baking Co., the plaintiff claimed she slipped and fell as a result of a piece of lettuce being in one of the aisles. There was testimony that the floors had been swept two or three times during the day, and that the store was well lighted with groups of lights from the front to the back, and that there was no difficulty in seeing. A motion for a directed verdict at the conclusion of plaintiff’s case was allowed. In affirming, the Appellate Court said (p 506):

“It is the duty of persons who invite others upon their premises to keep such premises in a reasonably safe condition so that their invitees will not be injured by reason of any unsafe condition of the premises, yet the law does not make the owners of premises insurers of persons thereon. . . . Reasonable care to see that premises are reasonably safe is all that is required.
“It is necessary to allege and prove the defendant knew of such unsafe condition, or that same existed for a period of time from which it might be inferred that had he been exercising ordinary care he could have learned of same. . . .
“The presence of this small portion of a leaf lying on a clean and open floor of a well-lighted grocery store, considered in connection with the other evidence in this case, did not create a liability for which these defendants could be called upon to respond in damages. The rules of law announced in Jones v. Kroger Grocery & Baking Co., supra, are applicable to this case and we adhere to them as being conclusive and controlling in this case.”

In Wroblewski v. Hillman’s, Inc., the plaintiff stepped on a vegetable leaf on the floor of defendant’s self-service grocery store outside the checkout counter and turnstile. There the Appellate Court affirmed a directed verdict for defendant at the close of plaintiff’s evidence and said (p 248):

“Defendant’s motion for a directed verdict was predicated upon plaintiff’s failure to show either that the vegetable leaf in question was dropped by one of defendant’s servants or that it had been in place for a sufficient length of time to charge defendant with constructive notice of its presence on the floor. It is our opinion that defendant’s motion correctly stated the applicable Illinois law. Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill2d 469, 474, 173 NE2d 443 (1961) a leading case, states the rule as follows:
“ ‘Where a business invitee is injured by slipping on a foreign substance on the premises, liability may be imposed if the substance was placed there by the negligence of the proprietor or his servants, or, if the substance was on the premises through acts of third persons or there is no showing how it got there, liability may be imposed if it appears that the proprietor or his servant knew of its presence, or that the substance was there a sufficient length of time so that in the exercise of ordinary care its presence should have been discovered. . .

“With reference to determining what circumstantial evidence is sufficient to sustain a reasonable inference that the foreign matter was present on defendant’s premises through the act of defendant or his servants, the court said (p 475):

“‘[E]yen where there is proof that the foreign substance was related to defendant’s business, but no further evidence is offered other than the presence of the substance and the occurrence of the injury, defendant is entitled to a directed verdict, such evidence being insufficient to support the necessary inference. . . .’”

Defendant argues that the evidence “overwhelmingly demonstrated that the defendant was using ordinary care for the safety of the plaintiff, and kept the property reasonably safe for use by the plaintiff and that on the facts disclosed it was clearly evident that the plaintiff herself had not exercised any degree of ordinary care that would have avoided the accident.” It notes that at the conclusion of all the evidence, the court erroneously relied on Donoho v. O’Connell’s, Inc., 13 Ill 2d 113, 148 NE2d 434 (1958), in refusing to direct a verdict for defendant. In Donoho, a customer was injured when she slipped on a piece of grilled onion on the floor of defendant’s restaurant. There was evidence that some fifteen minutes prior to the occurrence a bus boy had cleared a stand-up table, and he had a practice of wiping debris off the counter with a damp cloth so that particles could drop to the floor. The court sustained a lower court judgment for the plaintiff. Defendant notes that in Donoho the last person to be in the area where the accident complained of occurred was an employee of the restaurant whose duties were to clean off the tables.

Defendant asserts that the testimony of Sharon Vrbousky was clear that she had swept the floor just prior to going to lunch, and that the fall occurred at approximately 1:30 p. m. while she was at lunch, and that plaintiff had been taken from the store before she returned to work. Defendant argues that it was not an insurer against accidents occurring on the realty, and that no presumption of negligence could be attributed to it merely by showing that injury has been sustained by one rightfully on the premises. See Beccue v. Rockford Park Dist., 94 Ill App2d 179, 236 NE2d 105 (1968).

Defendant finally argues that the court’s refusal to direct a verdict for defendant or enter judgment notwithstanding violated the test set down in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967):

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

Defendant maintains that under Illinois law it is no longer sufficient that a party have some evidence which, on an ex parte basis would support his contention, and “a plaintiff cannot establish an attenuated case structure which might suffice if it were uncontested, but is actually shattered by evidence offered to oppose it, and still successfully claims the right to have a jury determine the issues.”

Plaintiff contends that the presence of the lettuce leaf on the floor can only be attributable to the negligence of defendant’s employees. Lettuce boxes were used by checkers to parcel groceries for customers, and if the lettuce leaf came from those boxes, its presence was attributable to defendant’s negligence. Also, because defendant’s employees were instructed to clean out the patrons’ carts when they came to the checkout point, if the lettuce leaf came from the basket of a cart it was attributable to a checker’s negligence. Finally, because the heads of lettuce are individually packaged by Jewel employees and because the customer is not in contact with the bag of groceries until the bags are in the cart, the blame must lie with an employee.

Plaintiff also asserts that even if the lettuce leaf was not attributable to defendant’s employees, the evidence shows sufficient notice to defendant of the presence of the leaf. She points out that the lettuce leaf was not dropped by plaintiff.; that it was lying approximately three feet from one of defendant’s employees and that according to the testimony the floor had either not been swept at all, swept not more than five minutes before the incident, or had not been swept for an hour and forty-five minutes to an hour and fifteen minutes before the incident. In addition, if no sweeping occurred the defendant is liable for failing to follow its own precautions of sweeping up to fifteen times a day. On the other hand, if the sweeping occurred five minutes before the accident, it is reasonable to infer that the sweeper either failed to see the lettuce leaf or failed to sweep it up. Cited as authorities are Saviola v. Sears, Roebuck & Co., 88 Ill App2d 13, 232 NE2d 4 (1967); Safeway Stores, Inc. v. Preston, 269 F2d 781; and Gee v. Salcido, 2 Ariz App 280, 408 P2d 42, 45.

We think Donoho v. O’Connell’s, Inc., is in point here. There it is said (p 118):

“[Liability will be imposed where a business invitee is injured by slipping on a foreign substance on the premises if it was placed there by the negligence of the proprietor or his servants, or, if there is no showing how the substance got on the premises, if it appears that the proprietor or his servant knew of its presence, or that the substance was there a sufficient length of time so that in the exercise of ordinary care its presence should have been discovered. . . . Thus, where the foreign substance is on the premises due to the negligence of the proprietor or his servants, it is not necessary to establish their knowledge, actual or constructive . . . ; whereas, if the substance is on the premises through acts of third persons, the time element to establish knowledge or notice to the proprietor is a material fact. . . .”

And at page 125:

“[T]he query is not whether it was also possible that a customer could have dropped the onion ring, but whether the evidence makes it more probable that defendant or his servants dropped it.”

We find the evidence in the instant case was sufficient for the jury to reasonably infer that defendant’s employees were the only possible source of the dropped lettuce leaf and that the question of actual or constructive notice was not material here. The lettuce was related to defendant’s business, and the negligence was circumstantially proved by the testimony that the first time a customer actually came in contact with the parcel of groceries was when the Jewel employees had finished ringing up the bill and had finished packing it into bags, and then the customer was given the bags to take home or given his grocery cart to wheel out to his car. There is testimony that empty produce boxes, including “lettuce boxes,” were brought to the front of the store for use by the cashiers in packaging, and if the area had been swept just before the occurrence, we think it reasonable to infer that the sweeping had been negligently performed.

Although a supermarket is not an insurer for all injuries suffered on its premises, and “reasonable care to see that premises are reasonably safe is all that is required” (Schmelzel v. Kroger Grocery & Baking Co., p 506), we conclude that the negligence issue was properly submitted to the jury by the trial court. The presence of the lettuce leaf on the floor, under the circumstances portrayed here, “makes it more probable” that defendant or its employees dropped it. Donoho v. O’Connell’s, Inc., p 125.

As no contentions are raised by defendant on any other issue, for the reasons given the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ricardo Gant, Defendant-Appellant.
    Gen. Nos. 53,859,53,860.
    First District, First Division.
    February 26, 1970.
    J. Tobias Dixon, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Francis X. Riley, Special Assistant State’s Attorney, and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Ricardo Gant, was charged in one complaint with the offense of battery on the person of Ronald Yabaraski, and in a second complaint with the offense of theft of a wristwatch from Ronald Yabaraski. After a bench trial, he was found guilty on both charges and placed on probation for one year on the condition that he serve sixty days in the Illinois State Farm at Vandalia.

On appeal, the defendant contends (1) that the elements of the crime of theft were not proven; (2) that the evidence was conflicting and insufficient to support a conviction for battery and (3) that a new trial should have been granted because the State suppressed information it had that the wristwatch was recovered the next day following the incident while this defendant was incarcerated.

Ronald Yabaraski testified that on October 15, 1968, he was in the vicinity of 6129 Seeley when seven kids with sticks and clubs started beating him. He identified the defendant, Ricardo Gant, as one of them. He said the defendant struck him across the cheek with a piece of a broomstick. Someone else hit him on the head and he bled. Yabaraski stated that the defendant took nothing from him, but in the scuffle another boy took his gold wristwatch. He threw some money at the boys, and all but Gant, who was apprehended, ran.

The defendant, Ricardo Gant, who was seventeen, testified that he saw a group of about eight boys on the corner as he left a bus. He saw a boy hit the complainant on the head with a T square and take his watch. The defendant denied hitting the complainant or helping the boys.

The defendant contends that the State did not prove the elements of the crime of theft—the taking and carrying away or the intent of the defendant to take or convert the complainant’s watch to his own use. It is argued that the complainant admitted that the defendant did not take his watch or money and the defendant could, therefore, not be convicted of theft.

In Watts v. The People, 204 Ill 233, 68 NE 563, relied on by the defendant, Thomas Watts, Jr. and Oliver Tomlin were found guilty of larceny of eight hogs of the value of $100. In a joint indictment, Thomas Watts, Sr., was also found guilty. There was no evidence that Thomas Watts, Sr. had aided, abetted or assisted in the taking or the carrying away of the hogs, and his conviction was reversed. In People v. Walker, 361 Ill 482, 198 NE 353, the parties who actually took and disposed of a washing machine were found not guilty of larceny. The defendant was not present when the machine was taken and it was never in his possession. The court held that without a guilty principal the defendant could not be convicted of larceny.

In the case at bar, the complainant identified the defendant as one of seven youths who chased him. He said that the defendant was one of the group who actually struck him. In the scuffle his watch was taken by one of the group. The evidence, if believed, showed that the defendant was not an innocent bystander, but instead aided and abetted the group of boys who stole the victim’s watch. “A person is legally accountable for the conduct of another when . . . [e] ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such person in the planning or commission of the offense. . . .” (Ill Rev Stats 1967, c 38, § 5-2.) As the Supreme Court stated in People v. Richardson, 32 Ill2d 472, 476, 207 NE2d 478, 481:

[P]roof of a common purpose need not be supported by words of agreement but can be drawn from the circumstances surrounding the commission of an act by a group. (Citing authorities.) Furthermore, the fact that the criminal acts were not committed pursuant to a preconceived plan is not a defense if the evidence indicates involvement on the part of the accused in the spontaneous acts of the group.

The evidence established that the defendant was an active participant in the beating of the complainant, and he could properly be found guilty of the theft of the defendant’s watch.

We find no conflict in the testimony of the victim requiring a reversal of the battery conviction. It was established that the complaining witness was beaten by a group of boys causing him to bleed profusely. He testified that the defendant struck him across the cheek with a piece of a broomstick. This was sufficient evidence to warrant a conviction for battery.

The defendant filed a post-trial petition to vacate the conviction in which he alleged that the State suppressed evidence which would have shown that the complainant’s watch was recovered from several boys the day after the incident while the defendant was incarcerated. The defendant also alleged that none of the parties from whom the watch was recovered was arrested. The defendant contended that an essential element of the crime of theft is the taking of goods with the intent to convert to one’s use. Since the State did not show what happened to the watch, the defendant contends that this element of the crime was not proven. We cannot see how this prejudiced the defendant. The fact that the owner of stolen property recovers it, does not extinguish the offense of theft. People v. Dean, 321 Ill 128, 132, 151 NE 505, 506. The trial judge did not abuse his discretion in denying a new trial.

For the reasons stated, the judgment of the Circuit Court is affirmed.

Affirmed.

MURPHY and ADESKO, JJ., concur.


text:
    Accursia Rita Norris, Plaintiff-Appellee, v. James Miller Norris, Defendant-Appellant.
    Gen. No. 54,066.
    First District, First Division.
    February 26, 1970.

      Ralph Jonas, of Chicago (Marks, Marks and Kaplan, of counsel), for appellant.
    Gomberg, Missner & Schaps, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This cause is here to review an order entered in divorce proceedings remanding the custody of the minor child to the mother.

The record reveals that on February 10, 1964, a decree of divorce was entered which provided, among other things, that custody of Andria Jane Norris, the minor child" of the parties, who was then four years old, be awarded to plaintiff, the mother, and ordered the defendant father to pay $20 per week for the support of the child. The question of alimony was reserved. On June 23, 1967, plaintiff filed a petition seeking a rule to show cause for defendant’s alleged arrearage of support. She further averred that her doctor recommended that she and her daughter move to California because of certain ailments and prayed for permission to remove the minor child to California. In his answer, the defendant denied that he was in arrears in support payments, denied that the child needed a change in climate and alleged that he was advised that plaintiff intended to move to California. He prayed that an order be entered prohibiting her from removing the child from the jurisdiction of the court. On the same date, the defendant also filed a cross-petition for a change of custody. He alleged therein that the plaintiff did not adequately care for the child, that he was remarried and that in the best interest of the child, custody should be given to him.

Subsequently, there were numerous court appearances and various orders entered by Judge Eiger. On November 28, 1967, the defendant filed a verified petition in which he alleged that the contested matters had been continued sine die by agreement of the parties in order to attempt to amicably adjust their differences. He further alleged that when he attempted to see plaintiff on October 6, 1967, he found that she had vacated her premises and had disappeared in direct violation of Ms rights of visitation with his daughter. Defendant prayed that plaintiff be held in contempt of court and that custody of the child be awarded to him.

An amended decree was entered by Judge Eiger on November 28, 1967, in which he found that plaintiff had fled the jurisdiction of the court and was concealing the minor child from the defendant in violation of the order of the court. It was ordered that the request of the plaintiff to remove the child from this jurisdiction be denied; that the defendant be awarded sole custody of the child, and that plaintiff was in contempt of court for her wilful disobedience of the orders of the court. Plaintiff was not present when evidence was taken and this decree was entered.

On March 1, 1968, an order was entered giving plaintiff leave to file a petition for a change of custody. In the verified petition, plaintiff alleged that defendant told her, prior to the entry of the November 28, 1967 decree, that he would have no objection if she moved to California for an experimental period of three months to determine whether the climatic conditions of California would benefit the child. She also alleged that, unknown to her, custody of the child was given to the defendant on November 28th and that on December 23rd, the defendant kidnapped the child in California and removed her to his home in Woodstock, Illinois. She further averred that she was a fit and proper person to have custody of the minor child and she prayed that custody be restored to her.

In his answer to the petition, the defendant alleged that after protracted investigation, he learned that plaintiff had removed the child to California and that he at no time gave her permission to do so. He averred that pursuant to advice, he went to California, took custody of the child and returned with her to Illinois. Defendant further alleged that plaintiff had raised no facts in her petition which would constitute changed circumstances sufficient to justify a modification of the child custody given to him.

After hearing extended testimony, Judge Eiger entered an order on March 11, 1969, in which he vacated the order of November 28, 1967, and restored custody of the minor child, Andria, to the mother. The order further provided that the child reside with the father until the close of the school term on June 1, 1969, and then be returned to plaintiff at that time. It is from this order that defendant has appealed.

The defendant contends (1) that the decree of November 28, 1967, was a final appealable order and may not now be collaterally attacked; (2) that if plaintiff’s petition is considered as a section 72 petition, it is insufficient in that she does not allege due diligence in preventing the entry of the November 28th decree as required by that section; (3) that if plaintiff is seeking to modify the decree, she does not allege any changed circumstances affecting the fitness of the custodial parent which occurred subsequent to the entry of the November 28th decree and which would justify a modification of that decree and (4) the best interests of the child will be best served by defendant’s retaining custody.

The order of November 28, 1967, changing custody to the defendant, recites that plaintiff’s conduct was in direct violation of court orders, particularly with regard to the visitation rights of the father by removing the child from this jurisdiction. At the conclusion of the evidence, and after hearing argument of counsel upon plaintiff’s petition for a change of custody, the court stated that plaintiff’s action in taking the child out of the state without the court’s permission, was a contemptuous act. He explained that when he entered the order of November 28th in which custody of the child was taken from the mother, he did not have an opportunity to hear from her, and it was his feeling that taking custody from her would bring her back to Illinois, as it did. The trial judge emphasized that he changed custody on November 28, 1967, because plaintiff had left the jurisdiction. However, the judge stated that after hearing from both parents he felt that the child should be with her mother.

Under the divorce decree, the mother had been awarded the sole custody of the minor child with rights of visitation by the father. Every presumption is indulged in the validity of the decree, and if its provisions are to be changed, the burden of proof is on the moving party to show why a change should be made. After the divorce decree, the court may, upon applicatian, “make such alterations in . . . the custody ... of the children, as shall appear reasonable and proper . . .” Ill Rev Stats 1967, c 40, § 19. New and changed conditions must arise to warrant the court in changing its prior custody. Nye v. Nye, 411 Ill 408, 105 NE2d 300.

The trial judge who removed the custody of the child from the mother stated, after the entry of the decree, that he did so in order to force the mother to return to the jurisdiction with her daughter. At the hearing on her petition to regain custody, he stated that his action had been improper. “I don’t think a court would have had the right or the power to remove the custody of this child from the mother to the father. The facts and circumstances certainly would not have warranted that kind of a determination.” We agree. It has been repeatedly held in Illinois, that the removal of the child from the jurisdiction is not alone sufficient grounds for a change of custody. See Jingling v. Trtanj, 99 Ill App2d 64, 71, 241 NE2d 39, 43, and cases cited therein. To do so would be not only to punish the mother for her past misconduct, but more importantly would punish the child by denying her a mother’s care and guidance. It is not the purpose of this court, nor .of any court, to so punish an innocent child. The guiding star is and must be, at all times, the best interest of the child. Nye v. Nye, 411 Ill 408, 105 NE2d 300. The order changing custody entered for that reason was, therefore, improper, and we find no other basis in the record to sustain it. Since the order was improper, no change of circumstances was necessary before the trial judge could alter it, and it was not an abuse of his discretion for him to vacate the order as he did after he had heard from all the parties.

We find no merit to the defendant’s contentions that this was an improper collateral attack or an insufficient section 72 petition. As we stated in Szczawinski v. Szczawinski, 37 Ill App2d 350, 185 NE2d 375, it is the policy of courts of review to recognize a broad discretion in a chancellor called upon to award custody of children.

[U]nfitness does not follow conclusively from a failure to comply with rights of visitation or other orders which may be entered in a divorce proceeding. Nor can the child be used as a basis for punishing the contumacy of a party in a contempt proceeding, as appears to have been the case here. Nothing short of a hearing relating to unfitness and the interests of the child and a finding thereon is adequate support for an order changing custody. Bulandr v. Bulandr, 23 Ill App2d 299, 303, 162 NE2d 585, 587.

We do not condone the conduct of the plaintiff. A disregard of the orders of the court should not be countenanced or permitted. It is our observation, however, from a review of the record that the court recognized that he improperly entered the order of November 28, 1967. After an extensive hearing and much testimony offered on behalf of the parties and after considering the best interests of the child, the court found that the mother is a fit and proper person to have the custody of the child and so ordered. We believe the record supports this finding.

For the reasons stated, the judgment of the Circuit Court is affirmed.

Affirmed.

MURPHY and ADESKO, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harold L. Poole (Impleaded), Defendant-Appellant.
    Gen. No. 51,860.
    First District, Third Division.
    March 5, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Sheldon M. Schapiro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant Harold Poole and one William Dunaway were jointly indicted for the crimes of robbery and aggravated battery. In a separate jury trial Poole was found guilty on each charge and sentenced to serve seven to fifteen years in the penitentiary on the charge of robbery, and seven to ten years on the charge of aggravated battery, both sentences to run concurrently. He seeks reversal and remandment on the following grounds: (1) that the trial court admitted prejudicial hearsay evidence, and (2) that the conduct of the Assistant State’s Attorney during the trial was improper in that (a) he handed police reports to the defense counsel in the presence of the jury, (b) in his final argument he commented on the failure of the defense to call certain witnesses and (c) that he made several other prejudicial and inflammatory remarks in final argument. While the sufficiency of the evidence is not in issue, a summary of the testimony of the respective witnesses is necessary to an understanding of the issues involved.

Alvin Harris, the victim of the offense for which the defendant was tried, testified that on June 12, 1966, at approximately 3:00 a. m. he was walking south in the 6200 block of Kenwood Avenue in the City of Chicago. He was returning home after purchasing a bottle of vodka in a liquor store at the corner of 61st Street and Kenwood Avenue and as he walked along the sidewalk, two men approached him from the rear. One of them, whom he later identified as the defendant, struck him with his fist, prompting Harris to return the blow. Harris was knocked to the ground and kicked repeatedly. Just before he lost consciousness one of his assailants removed his wristwatch. Sometime later he regained consciousness through the efforts of police officers Campbell and Hunt, who had arrived on the scene. He realized that his wallet, keys and the bottle of vodka had also been taken. The officers asked him what had happened and he answered that the two men, who were still present, had robbed him. Harris also testified that he remembered seeing both men in the vicinity of 63rd Street and Kenwood Avenue prior to the morning in question, but that they were not friends of his. He had not been drinking with them earlier in the evening nor had he associated with them that evening. At no time during the commission of the crime did he see more than two people and he denies that he was attacked by the Blackstone Rangers.

William Campbell, one of the police officers who responded to a call to go to 6221 Kenwood Avenue on the morning in question, testified that when he arrived on the scene there were three men present—Alvin Harris, who was bleeding profusely, the defendant Poole and one William Dunaway. The defendant was leaning against a nearby fence while Dunaway searched through one of the victim’s shoes. Officer Campbell asked Harris what had happened and Harris replied by pointing to Dunaway and the defendant and saying, “they robbed me.” The two men were arrested and searched. A wristwatch, a bottle of vodka and a set of keys, which Harris said were his, were found in Dunaway’s possession. The defendant had a dollar bill and some change in his pocket. His left arm was bloodstained, the result he said of his efforts to assist Harris after he was beaten by the Blackstone Rangers. Later that day officer Campbell went to the victim’s apartment and unlocked the apartment door with the keys he had taken from Dunaway. While officer Campbell was at the scene of the crime Harris told him that $120 had been taken from him, but he later admitted that only some “change” had been taken.

The testimony of officer Willie Hunt, officer Campbell’s partner on the morning in question, corroborated all the material elements of officer Campbell’s testimony, that only three men, Harris, Dunaway and the defendant, were present when he and Campbell arrived at the scene of the crime, that the defendant had blood on his left arm and that Harris identified the defendant and Dunaway as his attackers. He also testified that defendant told him that Harris had been attacked by a group of Blackstone Rangers.

The only evidence offered on behalf of defendant was his own testimony. On direct examination he testified that in 1956 he had been convicted of the sale of a narcotic drug and of burglary. He further testified that at approximately 2:80 a. m. on the morning in question he and Dunaway saw Harris intoxicated in a neighborhood lounge, that a short time later defendant left the lounge and met two men, White and Morris, at the corner of 63rd Street and Kenwood Avenue. Dunaway followed several minutes later. About 3:00 a. m. Harris also left the lounge, approached Dunaway and asked whether he could borrow fifty cents so they could buy a half-pint of vodka. Dunaway loaned him the money and they bought the vodka. As they were walking south in the 6200 block of Kenwood Avenue they finished drinking the vodka, whereupon defendant and Dunaway left Harris and went to another lounge to buy more liquor. When they returned, a group of four or five people “scattered,” leaving Harris on the sidewalk beaten and robbed. Defendant further testified that he dragged Harris from the middle of the sidewalk to a staircase leading to the porch at 6221 Kenwood Avenue and propped him up on the stairs.

In support of charge (1) that prejudicial hearsay evidence was admitted, defendant argues that it was error to permit officers Campbell and Hunt to testify that they heard Harris at the scene of the crime identify the defendant as one of his assailants. The record shows however that Harris had previously testified to the identification himself. Moreover, during the course of his direct examination defendant testified that while at the scene of the crime he heard officer Campbell ask Harris if he (defendant) and Dunaway had robbed him and that Harris has responded by nodding his head, “Yes.”

As a general rule a witness may not testify to a prior identification of an accused made by another person. People v. Denham, 41 Ill2d 1, 241 NE2d 415; People v. Reeves, 360 Ill 55, 195 NE 443. Such testimony has been held to be hearsay and therefore inadmissible. People v. Krejewski, 332 Ill 120, 163 NE 438; People v. Lukoszus, 242 Ill 101, 89 NE 749. An out-of-court assertion is hearsay and therefore inadmissible when it is offered to prove the truth of the matter asserted therein and thus rests for its value on the credibility of the out-of-court asserter. People v. Carpenter, 28 Ill2d 116, 121, 190 NE2d 738, 741; People v. Hannah, 54 Ill App2d 218, 223, 203 NE2d 764, 766. The fundamental purpose of the rule against hearsay is the exclusion frotn evidence of those out-of-court assertions whose real value cannot be determined because the source of the assertion cannot be cross-examined by the party against whom it is being offered. People v. Carpenter, supra; People v. Burks, 105 Ill App2d 112, 245 NE2d 120; Wigmore on Evidence, § 1362 (3rd ed, 1940). Hence it is the opportunity for cross-examination of the out-of-court declarant, whose assertion is being offered, that is the essential feature without which the assertion must be rejected. People v. Carpenter, supra; People v. Burks, supra. See, also, Uniform Rules of Evidence rule 63(1); Model Code of Evidence rule 503(b). In the instant case Harris, the State’s first witness, testified that on the night of the crime he identified defendant and another as his assailants. He confronted defendant in court and was thoroughly cross-examined. Defendant’s counsel thus had the opportunity to test the witness’s perception, his memory and veracity both as to his previous statement and his testimony given on direct examination, thereby enabling the jury to determine the real value of Harris’s out-of-court assertion. The risks which would otherwise accompany the admission of an out-of-court assertion are not here present and therefore the rule against hearsay is not applicable to the police officers’ testimony with respect to the victim’s assertion that defendant had robbed him. See, Wigmore on Evidence, § 1130 (3rd ed, 1940); Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv L Rev 177, at 192, ff.; cf. People v. Paradise, 30 Ill2d 381,196 NE2d 689.

Defendant next contends (2a) that the prosecutor acted improperly when he handed the police reports to his counsel in the presence of the jury. He argues that he had to use the report or appear to be hiding something from the jury. Although not pointed out in defendant’s brief, the record shows that counsel for the defense while cross-examining officer Campbell asked him if such a report had been made and upon receiving an affirmative answer asked the witness whether he had a copy. Before an answer was given the prosecutor said, “Let the record indicate I am furnishing to counsel two documents, one entitled Robbery Case Report and the other one entitled Investigator’s Report, Investigator’s Case Summary Report.” No objection was made by defense counsel. The prosecutor made no mention of these reports at any other stage in the proceedings nor does it appear that the reports were requested any time prior to the above colloquy. Under those circumstances it was proper for the prosecutor to tender the police reports in the presence of the jury. People v. Sanford, 100 Ill App2d 101, 241 NE2d 485; People v. Bickham, 91 Ill App2d 465, 235 NE2d 400.

Defendant also contends (2b) that the prosecutor in his final argument to the jury improperly commented on defendant’s failure to call two witnesses. During direct examination the defendant testified that he left the Easy Lounge a little after 2:00 a. m. on the morning of June 12, 1966 and walked to the corner of 63rd Street and Ken-wood Avenue, where he met a Mr. Horace White and a Mr. Morris. A few minutes later Dunaway joined them. Some time later Harris approached the four men and asked Dunaway for “fifty cents on a half a pint of vodka. Dunaway gave him the money and Harris, Dunaway and the defendant crossed the street and bought a half-pint of vodka. Neither White nor Morris were called by the defense. In his closing argument the prosecutor said:

“Well, counsel for the defendant has the power to subpoena. He has the power to compel the attendance of witnesses on behalf of his cause, of the defendant’s cause, yet where is Mr. Horace White, the man that Poole says was standing on the corner there? There is another party that Mr. Poole has referred to who was present at this time. Where is he? He hasn’t testified. Counsel could have had him here.”

Defendant contends it is reversible error for the prosecutor to suggest to the jury that an adverse inference may be drawn from defendant’s failure to call a witness unless it is clear that the witness was not accessible to the State and that the defendant was capable of producing him. In People v. Williams, 40 Ill2d 522, 240 NE2d 645, the Supreme Court considered the scope of permissible comment by the prosecutor on the defendant’s failure to call a witness or produce evidence and the court said (p 529):

“[I]t is our conclusion that though failure to call a witness or produce evidence may not be relied on as substantial proof of the charge, nonetheless, if other evidence tends to prove the guilt of a defendant and he fails to bring in evidence within his control in explanation or refutation, his omission to do so is a circumstance entitled to some weight in the minds of the jury, and, as such, is a legitimate subject of comment by the prosecution.”

In further elaboration the court said that in the absence of an express prohibition every fact which is not improperly before the jury and which may reasonably influence their judgment is a proper subject of comment in argument. In the instant case the defendant’s testimony and that of the victim is in conflict as to events leading up to the attack. If we accept defendant’s version, the testimony of Morris and White would refute the testimony of the victim and corroborate that of the defendant. There may have been some reason for the defendant’s failure to subpoena those two men and put them on the witness stand, but none was given. The prosecutor did not argue that the testimony of Morris and White would have been adverse to defendant. Rather, he was pointing out the uncorroborated nature of defendant’s testimony. There was other evidence of defendant’s guilt and it does not appear that the State relied on his failure to call those witnesses as substantial proof of the offenses charged. See also, People v. Lion, 10 Ill2d 208,139 NE2d 757.

Finally, defendant contends (2c) that the prosecutor made several prejudicial and inflammatory remarks in his closing argument. He cites four separate instances in which he was characterized as a “jackal.” No objection was made to that comment. The assignment of error may still be considered however if the argument is so seriously prejudicial as to prevent the defendant from receiving a fair trial. People v. Mackey, 30 Ill2d 190, 195 NE2d 636. The remark in question is somewhat beyond the limits of propriety in legal argument, but considered in the light of the entire record the defendant received a fair trial and his guilt was established beyond a reasonable doubt. The judgment is accordingly affirmed.

Judgment affirmed.

DEMPSEY, P. J. and McNAMARA, J., concur.


author: MR. JUSTICE McNAMARA

text:
    John Douglas, Plaintiff-Appellant, v. Stanley Papierz and Stanley Papierz Builders, Inc., Defendants-Appellees.
    Gen. No. 52,314.
    First District, Third Division.
    March 5, 1970.

      Ward P. Fisher and Thomas L. Ruth, Jr., of Chicago (Ward P. Fisher, of counsel), for appellant.
    Sidney S. Schiller and Paul C. Ross, of Chicago (Donald C. Schiller, of counsel), for appellees.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Plaintiff, John Douglas, appeals from the dismissal of his complaint against defendants Stanley Papierz and Stanley Papierz Builders, Inc. The trial court dismissed the complaint on the ground that there had been a prior adjudication of the issues, and that the cause was res judicata.

Plaintiff filed his complaint in the prior proceedings on April 23, 1965, against defendants and another party. In that complaint plaintiff sought to foreclose a mechanic’s lien. The complaint alleged that the parties on October 29, 1964, had entered a contract in which plaintiff was to install certain ironwork, and that defendants had breached the contract. Plaintiff prayed for a judgment of $17,150, a mechanic’s lien, an accounting and general relief. On July 16, 1965, plaintiff filed a bill of particulars alleging that the contract was one for custom ironwork on six buildings, and was orally extended to include a seventh building; that the ironwork was completed, and was of no value to anyone except defendants; that plaintiff, having completed the ironwork, delivered it for installation on the job site, and discovered that another contractor was erecting the ironwork; that he learned from defendants that another contractor had been hired to complete the unfinished ironwork; that the sum of $7,350 was received upon completion of some of the buildings, and that plaintiff had done some extra work in the amount of $7,500. On July 16, 1965, defendants filed an answer, admitting the existence of the contract but alleging that plaintiff had failed to perform according to the specifications.

After plaintiff filed a reply and additional bills of particulars, defendants filed a motion for summary judgment with supporting affidavits. The affidavits alleged that work done on three buildings had been paid for, that a Waiver of Liens was executed and that plaintiff had done no other work on any of the other buildings. Summary judgment was entered for defendants, then vacated, and plaintiff filed a counteraffidavit, alleging that the fabricating of additional ironwork could not be done at the job site, that the ironwork was unique, that plaintiff completed all the ironwork according to the contract, and that the only thing left for him to do was to install it. Defendants moved for a summary judgment, which was granted on November 17, 1965, denying plaintiff the requested relief. On December 19, 1965, plaintiff filed a notice of appeal, but proceeded no further, and the appeal was subsequently dismissed.

On May 26, 1966, plaintiff brought this action against defendants alleging a breach of contract and praying for damages. He alleged that on October 29, 1964, he entered into a contract with defendants, whereby he was to furnish, deliver and install certain ironwork; that he completed the fabrication of the ironwork, and installed it until the defendants interfered with the installation, so that plaintiff could not complete the installation; that defendants agreed to some extra work, consisting of cutting loose some structural columns, in the amount of $7,500; that defendants owed plaintiff a balance of $14,700 which they refused to pay. On August 12, 1966, plaintiff filed a bill of particulars identical to the one filed in the prior suit.

On August 29, 1966, defendants filed a motion to dismiss, alleging that the instant cause was barred by a prior judgment and that plaintiff was estopped from reasserting the cause. Attached to the motion was an affidavit by defendants’ attorney setting forth the prior cause and certain exhibits. Plaintiff filed an answer denying that he was barred from asserting the cause, and alleging that the prior adjudication dealt solely with the issue of whether plaintiff was entitled to a mechanic’s lien. Thereafter the trial court dismissed plaintiff’s complaint on the grounds that the issues in the second cause of action could have been adjudicated in the prior suit, that the relief prayed for was the same in both suits, that the parties and the issues were identical in both cases, and that the doctrine of res judicata should apply.

Plaintiff appeals, contending that the prior adjudication was not a bar to the second lawsuit.

In The People v. Kidd, 398 Ill 405, 75 NE2d 851 (1947), the court stated as follows:

“The doctrine of res judicata, briefly stated, is that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. (Citations omitted.) The doctrine of res judicata, in all cases where the second suit is upon the same cause of action and between the same parties or their privies as the former action, extends not only to the questions actually litigated and decided, but to all grounds of recovery or defense which might have been presented.” (P 408.)

However, plaintiff argues that a prior adjudication of an equity suit to foreclose a mechanic’s lien does not bar a subsequent action at law on the same contract upon which the lien claim was based.

In Howard T. Fisher and Associates, Inc. v. Shinner Realty Co., 24 Ill App2d 216, 164 NE2d 266 (1960), this court held that a decree dismissing a mechanic’s lien action was res judicata to a subsequent action for money damages. At p 224, the court stated:

“The purpose of the rule of res judicata is to bring an end to litigation. Both our legislature and courts frown on piecemeal trial of actions as well as piecemeal appeals. The suit in the Circuit Court was to foreclose a mechanic’s lien and prayed for a declaratory judgment declaring the original contract valid. After judgment - had been entered in that suit dismissing the suit for want of equity the plaintiff could not reopen or refile that suit in order to litigate the issues therein raised, either as to the validity of the contract, the carrying out of the provisions of the contract on the part of the plaintiff, or whether the plaintiff or the defendant was responsible for the breach of the contract. All those matters were in issue in the case at the time the judgment was entered, and at that time the plaintiff had the duty to litigate those matters which it properly could have litigated under the pleadings and the issues joined in the case.”

In Cheevers v. Stone, 10 Ill App2d 39, 134 NE 2d 32 (1956), the court held that a dismissal of a complaint in chancery to foreclose a mechanic’s lien may be raised as res judicata in a subsequent action brought on the same contract in another court. The court pointed out that the dismissal of a suit based on a technical defect in the pleading would not bar another action for the same cause, but where a judgment deals with the validity of the first proceedings, such judgment would be res judicata to a subsequent action raising the same issues. The court reasoned that what had been adjudicated in the prior proceedings depended upon what issues had been presented to the trial court.

In the instant matter, plaintiff in his suit to foreclose the mechanic’s lien alleged a valid contract and prayed for a money judgment in addition to the lien. In their answer, defendants pleaded, inter alla, that the work done by plaintiff was not performed according to specifications, and required correction at their costs. As a result, one of the issues raised by the pleadings and the affidavits was whether plaintiff had faithfully performed according to the contract, and therefore whether he was entitled to a money judgment. The trial court then allowed defendant’s motion for a summary judgment and entered a decree denying the relief he had requested. It is clear that not only the mechanic’s lien was at issue, but also matters involving the contract. It was the duty of the plaintiff to litigate the issues with respect to that contract in those proceedings, and his failure to do so constitutes a bar to a subsequent action involving the same contract.

In Wise v. Jerome, 5 Ill App2d 214, 125 NE2d 292 (1955), it was held that a court of equity had no power to enter a personal judgment where grounds for asserting a mechanic’s lien were lacking. However, in Rozema v. Quinn, 51 Ill App2d 479, 201 NE2d 649 (1964), this court held that in a mechanic’s lien , action the court may enter a personal judgment where the lien was not established. In the Rozema case, the court pointed out that the remedies of the Mechanics’ Lien Act are cumulative, and that under section 44 of the Civil Practice Act, all actions may be joined, whether legal or equitable. It also noted that in the Wise case, plaintiff had failed to amend his complaint to add a count in law.

Plaintiff argues that at the time of allowing summary judgment in the mechanic’s lien suit, the chancellor stated that he was doing so because the remaining ironwork had not been attached to the real estate so as to meet the requirements of a mechanic’s lien. While such a statement by the judge is not found in the judgment or in the record, even if true, it remained the plaintiff’s responsibility to litigate all issues with respect to the contract in the same proceedings. Although plaintiff contends that both sides were concerned only with the mechanic’s lien, the pleadings had also presented the issues of whether defendant had properly terminated the contract for failure of plaintiff to follow specifications and whether plaintiff was entitled to judgment for defendant’s breach. In this respect, it is significant to note that identical bills of particulars were filed in each suit. It was not necessary, as plaintiff maintains, after summary judgment was entered in the chancery division of the Circuit Court, to file the subsequent suit on the contract in the law division. Jurisdictional differences between equity and law courts have been abolished, and today, Illinois Circuit Courts have original jurisdiction in all cases brought before them. It was the duty of the plaintiff to see that all of the issues before the court were resolved in the one lawsuit.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: PRESIDING JUSTICE BURMAN.

text:
    People of the State of Illinois, Appellee, v. John Stepnewski, Appellant.
    Gen. No. 53,571.
    First District, First Division.
    February 26, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

PRESIDING JUSTICE BURMAN.

Not to be published in full.