author: MR. JUSTICE MURPHY

text:
    Harriet Green, Plaintiff-Appellant, v. Frank L. Hussey, M.D., and Lutheran General and Deaconess Hospitals, an Illinois Corporation, Defendants-Appellees.
    Gen. No. 53,715.
    First District, First Division.
    June 29, 1970.

      Smith and Munson, of Chicago (Lester E. Munson and Lester E. Munson, Jr., of counsel), for appellant.
    Howard and French, of Chicago (Richard G. French, of counsel), and Hinshaw, Culbertson, Moelmann, Hoban and Fuller, of Chicago (John M. Moelmann and D. Kendall Griffith, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a medical malpractice action. Plaintiff alleged that defendants, subsequent to breast cancer surgery and without first obtaining plaintiff’s “informed consent,” undertook a postoperation series of cobalt and X-ray treatments on her, which damaged her severely. The issue presented for review is whether the trial court properly directed a verdict in favor of defendants at the close of plaintiff’s case.

The record shows that in April 1962, Dr. C. David Brown, after a diagnosis that a tumor was malignant, surgically removed a breast of plaintiff. No evidence was found that the cancer had spread beyond the breast area, and plaintiff was turned over to the hospital’s radiology department for radiation therapy. After thirty treatments, the therapy was ended. Plaintiff claims that these treatments resulted in damage to plaintiff’s heart and right lung and caused her involuntary retirement due to physical disability from the U. S. Post Office.

Plaintiff asserts that “defendants’ liability is based not upon a lack of care but upon an utter failure to obtain the patient’s consent to the treatment. The facts of defendants’ liability are found not in what happened during the treatment, but in what happened before the treatment was begun.” Plaintiff contends that she was entitled to know the foreseeable results before the treatment was undertaken, and “defendant’s failure to inform Miss Green of the risks involved in X-ray and cobalt therapy amounts to a failure to obtain the necessary consent. A specific consent was obtained for the biopsy, which proved the tumor to be malignant. Another specific consent was obtained for the simple mastectomy. But no consent, neither written nor oral nor implied, was obtained for the radiation therapy.”

Plaintiff testified and denied any consent to the radiation therapy. She said that her surgeon, Dr. Brown, told her he knew nothing about radiology, and she would be turned over to the X-ray department as the next step in her treatment. On plaintiff’s first visit to the radiation department of Lutheran General Hospital, she met Dr. Sam Mulopulos, an employee of defendant Hussey. Dr. Mulopulos initiated the radiation therapy. Although he conversed with plaintiff on her initial visit, their discussion amounted to little more than a guided tour of the cobalt treatment room. After examining plaintiff, Dr. Mulopulos showed her the cobalt room and told her she would be left alone in the room during the treatment and described some of the noises she could expect to hear from the equipment. Plaintiff asserts that “she was asked nothing. She was told that she was going to be receiving cobalt radiation treatments.”

Plaintiff further testified that a few days later Dr. Koptik, another employee of defendant Hussey, took over treatment of plaintiff at Lutheran Deaconess Hospital, an institution operated by the same defendants, but located nearer to plaintiff’s home. Lois Hanson, a technician, testified that Dr. Koptik told plaintiff that the therapy would be continued, and that she had nothing to worry about. The only question asked of plaintiff by Dr. Koptik was what she had already been told.

Dr. Mulopulos was called by plaintiff under section 60 of the Civil Practice Act, and his testimony included the following:

Q. “Did you do anything further with the patient on April 26, 1962?”
A. “We discussed what would be done as far as her treatment.”
Q. “All right, what did you say to her and what did she say to you, doctor?”
A. “We told her that she was referred for radiation therapy by Doctor Brown, and as was our custom, this meant that we would treat several areas of her body, and this would require treatment for at least four weeks, and that during that time, she may have some changes. It wasn’t required that she have all the changes, but she may have some symptoms. It may not be required that she have all the symptons, some patients do have just nausea, some patients do have some loss in appetite, some patients do have difficulty in swallowing with the treatment, some patients may have skin change, they may not have skin change, may be temporary. That when we do treat, we treat as a form of insurance to make sure that if there were any cancer in the area that we are treating, that we attempt to take care of the cancer that might be there, and that it should be understood that this area we are treating will encompass some normal tissue, that in the treatment of the area, in order to produce changes to the cancer, there must be some changes to the normal tissue. When she goes into the room, she will feel nothing as far as the treatment is concerned, yet any changes that take place will be changes that will occur later on in the treatment, any discomfort in swallowing usually occurs after several weeks, and that Doctor Brown has asked us to treat her and that we thought this would be the best treatment for her.”
Q. “Were you the only doctor who talked with Mrs. Green as she commenced her radiation therapy treatment there at Lutheran General Hospital?”
A. “At the commencement of her treatment?”
Q. “Yes?”
A. “Yes, I was the only doctor. Doctor Brown referred her and then I started her treatment.”
Q. “Did you explain to her any possible alternative method of treatment?”
A. “I don’t think there was any alternative method, other than radiation therapy.”
Q. “And, did you explain to her the effect and the nature of the treatment on the area ?”
A. “Yes, sir.”
Q. “Now, after all of this, what did she say ?”
A. “She approved, and we said we would begin our treatment on the following Monday, when the dressings were removed.”

Plaintiff maintains she was told nothing about the possible risks and nothing about the inevitable results, and she heard nothing about the alternatives until the trial of the case. Plaintiff asserts that the explanation of the proposed treatment to be given to her was not to inform her or help her understand the treatment. It was an explanation designed to help the personnel administering the treatment, and it was not until after the treatments that plaintiff was told by Dr. Brown, her surgeon, that the treatment was designed to kill any stray cancer cells.

Plaintiff contends that “the rule of law to be applied to these circumstances is clear. A physician who fails to obtain his patient’s consent to treatment must answer for the resulting damages.” Plaintiff’s authorities include Pratt v. Davis, 224 Ill 300, 79 NE 562 (1906), where the court said that an operation without the authority or consent of the patient constituted a trespass to her person. Also, Church v. Adler, 350 Ill App 471, 113 NE 2d 327 (1953), at page 483:

“The surgeon’s removal of the plaintiff’s appendix without her consent is a tort.”

Also, Schloendorff v. Society of New York Hospital, 211 NY 125, 105 NE 92 (1914), where it is said (p 93):

“. . . a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”

Plaintiff further contends that a patient cannot consent without information, and it is the doctor’s duty to give the patient enough information to make sure the patient understands the treatment, which must include (1) an explanation of the proposed treatment; (2) information of the alternatives available and the physician’s preference; and (3) information as to the foreseeable risks and results consistent with the physician’s duty of care and skill.

Plaintiff’s authorities on the basic contention that the patient must know the risks and results before any “informed consent” is possible include Natanson v. Kline, 186 Kan 393, 350 P2d 1093 (1960), where it is said (p 1106):

“We think upon all the facts and circumstances here presented Dr. Kline was obligated to make a reasonable disclosure to the appellant of the nature and probable consequences of the suggested or recommended cobalt irradiation treatment, and he was also obligated to make a reasonable disclosure of the dangers within his knowledge which were incident to, or possible in, the treatment he proposed to administer.”

Also, Scott v. Wilson (Tex), 396 SW2d 532 (1965), where it is said (p 533):

“ [I] t was the doctor’s duty to inform him of the nature of the operation, the processes contemplated, and the dangers and hazards of the operation and the chances of restored hearing, so as to enable Scott to determine whether he wanted to risk the operation or to live with his impaired hearing.”

Plaintiff summarizes her contentions as follows: “The physician must obtain the patient’s consent before the treatment begins. Before the plaintiff can consent, the patient must understand the treatment. The elements of the patient’s understanding have been defined by the courts in Illinois and are outlined in this brief. Plaintiff’s evidence clearly shows defendants’ failure to inform plaintiff on each of the elements of understanding,” and “despite this uncontradicted evidence, the trial court directed a verdict for defendants at the close of plaintiff’s case.” Plaintiff asserts, in view of the foregoing, a new trial must be granted.

Defendants contend that an “informed consent” does not mean that a patient must completely understand the nature of the treatment, including all the risks and hazards; that discretion must be used by the physician in determining the extent of the disclosure to the patient, and in some instances a complete disclosure would constitute bad medical practice. Williams v. Menehan, 191 Kan 6, 379 P2d 292, 294 (1963).

Defendants assert that disclosure of risk incident to proposed treatment is a separate problem with each patient. Consequently, the adequacy of disclosures given a patient is a matter of medical judgment which a jury cannot evaluate in the absence of expert testimony, and “the duty to inform, the nature of the information, and the extent of it is all outside of the knowledge and experience of the jury and can only be the subject of expert testimony.” Defendants state that no expert medical testimony was offered by plaintiff in the instant case, and the jury, being laymen, would have had no way of determining whether, under the circumstances, the information given plaintiff was adequate to allow her to make an intelligent decision regarding the radiation treatment.

Defendants note there are no Illinois cases involving “informed consent”; that in medical malpractice cases Illinois has required the plaintiff to prove by “affirmative expert evidence” that the physician was unskillful or negligent. See Graham v. St. Luke’s Hospital, 46 Ill App2d 147, 156, 196 NE2d 355 (1964), and Dimitrijevic v. Chicago Wesley Memorial Hospital, 92 Ill App2d 251, 257, 236 NE2d 309 (1968). Defendants assert that those courts which have considered the “informed consent” theory require the plaintiff to offer expert testimony that the defendant’s disclosures are not in accordance with those a reasonable medical practitioner would make under similar circumstances. Cited cases include Rea v. Gaulke (Tex), 442 SW2d 826 (1969), and Aiken v. Clary (Mo), 396 SW2d 668 (1965). In Rea v. Gaulke, the court stated (p 831):

“There are situations wherein a doctor’s failure to inform a patient of certain risks incident to a diagnosis or proposed treatment, in obtaining his consent, may be actionable. However, in establishing liability for such failure, the patient has the burden of proving by expert medical evidence that the reasonable medical practitioner of the same school in the same or similar circumstances, would have told the patient of such risks. The patient also has the burden of proving by expert medical evidence that such failure was a proximate cause of his damage.”

In Aiken v. Clary, the court stated (p 673):

“The basic philosophy in malpractice cases is that the doctor is negligent by reason of the fact that he has failed to adhere to a standard of reasonable medical care, and that consequently the service rendered was substandard and negligent. In our judgment, this is true whether the alleged malpractice consists of improper care and treatment ... or whether it is based, as here, on an alleged failure to inform the patient sufficiently to enable him to make a judgment and give an informed consent if he concludes to accept the recommended treatment.
“How, then, is a jury to determine whether a physician has been negligent in failing to inform his patient adequately to enable him to make an informed decision whether to consent to recommended treatment?”

And at page 675:

“[W]e hold that plaintiff, in order to sustain his burden of proof, is required to offer expert testimony to show what disclosures a reasonable medical practitioner, under the same or similar circumstances, would have made, or, stated another way, that the disclosures as made by the defendant do not meet the standard of what a reasonable medical practitioner would have disclosed under the same or similar circumstances.”

Defendants also contend that proximate cause is a necessary element in a medical malpractice action based upon failure to obtain an informed consent; if plaintiff would have submitted to the treatment even if a full disclosure had been made and she was warned of the risks and hazards, then the failure to disclose to her the risk of the treatment would not be the proximate cause of her injuries. Natanson v. Kline.

Defendants assert plaintiff offered no evidence of what she would have done if the risks and hazards of the treatment had been disclosed to her. On cross-examination, she was asked whether she would have refused the treatment if she had been told that it might cause fibrosis of the lung. Her counsel objected to this question, and it was never answered.

In sum, defendants argue that plaintiff offered no evidence on two essential elements of her cause of action. There was no expert evidence of what a reasonable physician in the same community, under similar circumstances, would disclose regarding the risks and hazards of radiation therapy, nor was there any evidence on the issue of proximate cause, and in the absence of direct evidence or circumstantial evidence from which inferences of fact clearly preponderate supporting each essential element of plaintiff’s case, the issue of liability should not be submitted to the jury. Tiffin v. The Great A. & P. Tea Co., 18 Ill2d 48, 60, 162 NE2d 406 (1959).

Defendants also assert that the evidence showed that there was no alternative method of treatment, either before the trial or during it, and that plaintiff’s examination of Dr. Mulopulos on this point brought the response, “I don’t think there was any alternative method, other than radiation therapy.”

After a consideration of the various authorities offered by both sides, we agree with plaintiff that the instant situation should be examined and considered under the “informed consent” theory. However, because cobalt treatments are not matters of common knowledge or within the experience of laymen, we believe expert medical testimony thereon was just as necessary as is such testimony on the correctness of the handling of cases involving surgery or treatment. (Aiken v. Clary.) Also, we think the instant situation comes within the pattern and guidelines set forth in Graham v. St. Luke’s Hospital and Dimitrijevic v. Chicago Wesley Memorial Hospital.

We conclude that to establish liability for defendants’ failure to inform plaintiff of the foreseeable risks or results involved in X-ray and cobalt therapy and available alternatives, if any, plaintiff had the burden of proving by expert medical evidence that the reasonable medical practitioner of the same school, in the same or similar circumstances, would have told the patient of such risks, or that the disclosures as made by the defendants did not meet the standard of what a reasonable medical practitioner would have disclosed under the same or similar circumstances. (Aiken v. Clary.) Also, plaintiff had the burden of proving by expert medical testimony that such failure was the proximate cause of her damage.

In the instant case expert medical testimony was required of plaintiff to make a prima facie case under the “informed consent” theory. No such evidence was offered by plaintiff, and we hold that the trial court properly directed a verdict in favor of defendants at the close of plaintiff’s case.

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

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE LEIGHTON

license: Public Domain

text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. City Realty Exchange, Inc., an Illinois Corporation, Defendant-Appellant.
    Gen. No. 53,816.
    First District, First Division.
    June 29, 1970.

      Orlikoff, Prins, Flamm and Susman, of Chicago (Arnold M. Flamm, of counsel), for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Richard F. Friedman, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

This appeal requires us to decide whether a real estate tax certificate of purchase is a lien for taxes. The question, deceptively simple to state, arises from a suit to foreclose a demolition lien filed by plaintiff, City of Chicago, against defendant City Realty Exchange, Inc., an Illinois corporation, and certain unknown owners. City Realty filed an answer and made a motion for summary judgment, which was denied. The facts are not in dispute.

On September 25, 1964, defendant, for the sum of $5,677.99, purchased the real estate commonly known as 4883-35 North Winthrop Avenue, Chicago, at a sale of delinquent and forfeited general taxes. The property was then improved with a six-flat building. In accordance with the Revenue Act, Ill Rev Stats 1963, c 120, § 753, a certificate of purchase was issued to City Realty.

October 27, 1966, the City of Chicago filed a complaint in the Circuit Court seeking a decree to demolish the building. City Realty was made a party defendant. Investigation then disclosed that 4833-35 North Winthrop Avenue was owned by one Eva Oberritter. It was leased to one Ethel R. Shaffer as a boarding house. Mrs. Shaffer’s husband died a year prior; and after consistently losing money, she abandoned the property. Vandals, transients, and street urchins gutted the interior of the building putting it so hopelessly beyond repair that it had to be demolished. In the demolition suit, City Realty did not contest plaintiff’s right to demolish but it alleged that any lien City of Chicago may claim for the costs of demolition would be subordinate and inferior to the lien City Realty had on the real estate through its certificate of purchase. Thereafter, the Circuit Court entered a decree authorizing demolition. Sometime between February 14 and May 23, 1967, the building was demolished and the rubble around it removed. Plaintiff filed its demolition lien on June 7,1967.

March 3, 1967, City Realty, complying with section 266 of the Revenue Act of 1939, Ill Rev Stats 1967, c 120, § 747, petitioned the Circuit Court for issuance of a tax deed based on its certificate of purchase. On March 13 defendant served plaintiff with a written notice in the form required by sections 263 and 266 of the Revenue Act of 1939, Ill Rev Stats 1967, c 120, §§744 and 747, notifying it of the petition and of the pending expiration of the time for redemption from the tax sale. City of Chicago did not appear in the tax deed proceedings. July 13, 1967, the Circuit Court ordered issuance of a tax deed to defendant City Realty. The deed was recorded July 17, 1967. January 3, 1968, plaintiff filed the complaint to foreclose the lien it acquired when it demolished the building.

Defendant, City Realty, appeared and filed an answer which included two affirmative defenses. The defense relevant here alleged that the statute which gave the plaintiff its cause of action made a municipality’s demolition lien subordinate to a lien for taxes. Defendant alleged the facts concerning the certificate of purchase, its compliance with all provisions of the Revenue Act, and the issuance of the tax deed which, defendant claimed, extinguished any lien plaintiff had on the real estate conveyed by the deed. Defendant prayed that plaintiff’s complaint to foreclose be dismissed; and that the court in its decree find that it was the owner in fee simple of the real estate described, free and clear of any demolition lien.

Plaintiff filed a motion to strike this affirmative defense. The trial court entered a decree which sustained the motion and ordered foreclosure. Defendant appeals. Although it presents two issues for review, we will discuss only defendant’s contention that its tax certificate of purchase was a lien for taxes superior to plaintiff’s demolition lien.

This contention is supported by the argument that the statute which created plaintiff’s right to a demolition lien, Ill Rev Stats 1967, c 24, § 11-31-1 also provided:

“The cost of such demolition or repair shall be recoverable from the owner or owners of such real estate and shall be a lien thereon, which lien shall be superior to all prior existing liens and encumbrances, except taxes: . . . .” (Emphasis added.)

Thus, the statute that created plaintiff’s cause of action makes a lien for taxes superior to plaintiff’s demolition lien.

In opposing defendant’s contention, plaintiff argues that although a tax certificate of purchase is a lien, it is not a lien for taxes. It is argued that only the People have a lien for taxes. Therefore, the argument goes, plaintiff’s demolition lien is superior to defendant’s interests as a tax purchaser of the subject real estate.

Sections of the Revenue Act which provide for certificates of purchase and for issuance of tax deeds are legislative means to encourage buyers at tax sales, increase collection of tax revenue by taxing authorities and free land to once again enter the stream of commerce and bear its aliquot share of the tax burden. Cherin v. The R. & C. Co., 11 Ill2d 447, 452, 143 NE2d 235. It is said that tax sales have as their purpose coercion of negligent and unwilling citizens to pay their taxes. 85 CJS, Taxation, § 744. Thus, protection of the rights of purchasers of real estate sold for delinquent and forfeited general taxes is in the public interest.

A certificate of purchase for delinquent taxes is a species of personal property, assignable by indorsement; but until expiration of the period of redemption and issuance of the tax deed based on it, no interest, equitable or legal is acquired on the land described in the certificate. Wells v. Glos, 277 Ill 516, 115 NE 658. In Illinois revenue laws, a certificate of purchase can be sold and assigned; but it is not title to real estate. United States v. United States Chain Co., 212 F Supp 171 (DC Ill 1962).

Under section 216 of the Revenue Act of 1939, Ill Rev Stats 1967, c 120, § 697, a lien exists in favor of the People for all taxes on real estate, from the first day of January in the year the taxes are levied until they are paid, or until the real estate is sold in accordance with the provisions of the Act. The effect of a'sale of land for taxes is to extinguish the lien, if the property brings the full amount of the taxes. O’Connell v. Sanford, 256 Ill 62, 65, 99 NE 885; People v. Silver Plate Co., 388 Ill 534, 540, 58 NE2d 599. One of the interests a tax purchaser acquires through his certificate of purchase is the right to be paid the price of the sale, interest, costs and any other taxes paid, if there is redemption. This right is a charge on the real estate for payment of the debt represented by the taxes. A charge on property for the payment of a debt is a lien. 33 Am Jur, Liens, § 2.

In Tubbs v. Dunlop, 325 Ill App 53, 59 NE2d 514, we held that a tax certificate of purchase was a lien superior and paramount to the lien of a trust deed, whether the tax lien attached before or after execution of the encumbrances. See People v. Etchison, 347 Ill 320, 179 NE 884. In Chicago Land Clearance Commission v. Narodski, 57 Ill App2d 302, 207 NE2d 81, without expressly saying that a tax certificate of purchase is a lien for general taxes, we reversed a trial court that failed to recognize the priority of a lien for general taxes represented by a tax certificate of purchase. Furthermore, it is not true, as plaintiff argues, that a lien for taxes exists only in favor of the People. Section 247 of the Revenue Act of 1939 provides that when a tax purchaser fails to complete his purchase, the collector shall not refund the amount paid in cash at the sale. “[T]he lien for taxes for such amount, however, shall remain on the land in favor of the purchaser, . . .” Ill Rev Stats 1967, c 120, § 728. A comparison of the provisions of section 247 (governing incomplete sale) with section 248 (governing complete sale and providing for certificate of purchase) discloses a legislative assumption that with regard to lien rights the tax purchaser who completes his sale is on equal footing with one who does not. Indeed, it is difficult to think of a valid reason for giving a lien to a purchaser who does not comply with the terms of a sale and denying it to one who pays the full price.

For these reasons, we conclude that from the date of its issuance to the date of a valid tax deed, defendant’s certificate of purchase was a lien for taxes. Therefore, it was error for the trial court to enter a decree which foreclosed plaintiff’s demolition lien in derogation of defendant’s superior rights as the owner of a tax certificate of purchase which at the time of the foreclosure suit had ripened into a merchantable title.

The judgment is reversed and remanded with directions that the trial court enter a decree dismissing plaintiff’s complaint.

Reversed and remanded with directions.

MURPHY and ADESKO, JJ., concur.


text:
    Judge Vanderbilt, et al., Plaintiffs-Appellants, v. John C. Marcin, City Clerk of the City of Chicago, and Board of Election Commissioners of the City of Chicago, Defendants-Appellees.
    Gen. No. 54,504.
    First District, First Division.
    June 29, 1970.
    Rehearing denied August 3, 1970.
    William E. Elston, Jr., of Chicago, for appellants.
    Richard L. Curry, Acting Corporation Counsel of the City of Chicago, of Chicago (Marvin E. Aspen and Gayle F. Haglund, Assistant Corporation Counsel, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an action brought to contest the validity of a local option election. Plaintiffs appeal from an order which struck and dismissed plaintiffs’ amended complaint and dismissed the action with prejudice. On appeal the determinative question is whether the amended complaint was sufficient to state a cause of action.

The record shows that pursuant to the Liquor Control Act (Ill Rev Stats 1967, c 43, § 167 et seq.), at a general election held on November 5, 1968, the following proposition was submitted to the voters of the 8th Ward, 96th precinct:

“Shall the sale at retail of Alcoholic Liquor containing more than 4% of alcohol by weight except in the original package and not for consumption on the premises be prohibited in this 96th precinct of the 8th Ward of the City of Chicago?”

The results of the election were proclaimed by the defendant Board of Election Commissioners to be 222 Yes and 80 No.

On December 5, 1968, plaintiffs, registered voters in the precinct in question, filed a “Complaint to Contest a Local Option Election.” Subsequently, the complaint was stricken, and plaintiffs were allowed to file an amended complaint, which was also stricken, as previously noted.

Summarized, the amended complaint alleged that the election was “void and defective” for the following reasons: (A) The polls were not opened nor closed as required by statute, and many voters were unable to vote; (B) the ballot boxes were not opened and exhibited as required by law; (C) throughout the day certain of the election judges were absent from the polling place and did not sign a time sheet; (D) the ballots on the proposition were handed to the voters without the separate Blue Ballot of the Constitutional Convention being placed on top of the other ballots, contrary to law; (E) that the judges of election failed to cause the arrest of proponents of the proposition who were causing a breach of peace and violation of the election laws; (F) that opponents of the proposition were not afforded a right to be present as challengers or watchers; (G) the judges of election made an incorrect count of the ballots cast in opposition to the proposition and failed to announce a canvass of the ballots cast in regard to the proclamation in question; “(8) That by virtue of the aforementioned violations of the Election Code of the State of Illinois, SHA Chapter 46, paragraph 18, the results of said election were materially affected so as to substantially alter the outcome of the balloting on the proposition in question and so as to render the election at the polling places in question to be void”; and “(9) That many of the voters who would have voted against the proposition were intentionally and fraudulently not given the proposition ballots on November 5, 1968; and the ballots were fraudulently and improperly counted and an incorrect figure recorded on the official canvass sheet; and the ballots were fraudulently counted as ‘yes’ votes which were defectively marked as 'no’ votes; and had these irregularities not taken place, the election would have resulted in the defeat of said proposition.”

Plaintiffs contend that the amended complaint was legally sufficient because the provisions of the Election Code which they alleged were violated were mandatory, but even if these provisions were directory, “the general and apparent wholesale disregard of a multitude of directory provisions would seem to cast such a cloud upon the election to at least require the respondents to provide the court with a reply to the charges.” They note that “to allow defendants to merely allege that such facts and allegations are directory and have no bearing on the outcome of the election affords a catchall behind which any election board or group of partisans might hide in the conduct of any election.” Authorities include People ex rel. Milburn v. Huston, 267 Ill App 395 (1932); People v. Heilman, 263 Ill App 514 (1931); and Zbinden v. Bond County School Dist., 2 Ill2d 232, 117 NE2d 765 (1954), where it is stated (p 236):

“We have said that it would be a dangerous rule to establish that election officials may disregard the plain provisions of the statute, and thereby defeat the intention of the law to prevent frauds from being committed and detected. ... On the other hand, the courts must consider the primary purpose of laws such as those under consideration, i. e., the obtaining of fair elections and honest returns, as paramount in importance to the formal steps prescribed to reach that end.”

Plaintiffs further contend that “in election contests the allegations of invalidity need not foe spelled out precisely but may be generally stated.” They argue that the nature of the right to contest election results requires that the averments contained in the complaint be general in nature because many of the allegations do not result from first-hand knowledge. Authorities include Farrell v. Heiberg, 262 Ill 407, 104 NE 835 (1914), where the court stated (p 410):

“The statute should have a reasonable construction in order to accomplish the purpose intended. To hold that a petition to contest an election should only contain such statements as were within the contestant’s own personal knowledge would be impracticable, since from the very nature of the proceeding the contestant must rely largely on information obtained from others, and as to such information the contestant could only make oath that he believed the statements to be true.”

Plaintiffs further argue that the allegations set forth in their amended complaint fairly informed the defendants as to the causes for the lack of validity of the election and its results. Authorities include Zahray v. Emricson, 25 Ill2d 121, 182 NE2d 756 (1962), where the court stated (p 124):

“And while the pleadings in contest proceedings are not required to comply with the strict technical rules applicable in civil actions, there should be such strictness as will prevent the setting aside of the acts of sworn officials without adequate and well defined cause.”

Defendants contend that the amended complaint was legally insufficient because “a pleading which merely paraphrases the law as though to say that the pleader’s case will meet the legal requirements without stating the facts” is insufficient. Authorities include Electric Supply Corp. v. Meyrick, 349 Ill App 383, 110 NE2d 525 (1953), and Richardson v. Eichhorn, 18 Ill App2d 273, 151 NE2d 819 (1958).

Defendants further assert that the provisions of the Election Code that were allegedly violated were directory in nature only, and “the failure to strictly comply, in the absence of fraud or a showing that the merits of the election were affected thereby, is not fatal.” Authorities cited include People ex rel. Meyer v. Kerner, 35 Ill2d 33, 39, 219 NE2d 617 (1966), and Gann v. Harrisburg Community Unit School Dist., 73 Ill App2d 103, 218 NE2d 833 (1966).

We believe the pertinent authorities which set forth the guidelines to be used here include People v. Sackett, 351 Ill 363, 184 NE 646 (1933); Zahray v. Emricson, 25 Ill2d 121, 182 NE2d 756 (1962); and People ex rel. Earley v. Bierman, 249 Ill App 217 (1928). In People v. Sackett, the court stated (p 377):

“A statute governing the opening and closing hours of the polls is directory, and a deviation from its terms does not vitiate an election unless it is shown that it was fraudulently done or unless the statute in express terms makes the hours of opening and closing the polls essential to a valid election.”

In Zahray v. Emricson, the court stated (p 124):

“The amended petition in this case falls far short of affording a basis for the contest sought. It neither alleges that the irregularities complained of changed the result of the election, nor does it allege facts which show that the irregularities would have such a result, and which if proved would render it the duty of the court to declare a defeated candidate elected. ... In the absence of an allegation that the results of the election were changed by the the alleged irregularities, or facts showing such a result, the petition assumes the proportions of an exploratory process to which neither our courts nor election officials should be subjected.”

In People v. Bierman, the court stated (p 220):

“Generally, mere technical statutory duties relating to elections will, after the election, be held to be directory only and a failure to comply therewith will not invalidate the election if such failure does not affect the fairness or merits thereof, nor obstruct nor prevent a free and intelligent vote of the people and ascertainment of the result.”

Examining the record in the light of the foregoing guidelines, we find that the provisions of the Election Code which were alleged to have been violated were directory. We agree with defendants that there were no allegations in,the amended complaint that the alleged violations affected the validity of the election; that no facts were alleged to support a conclusion that the alleged situations existed; and that no fraud was alleged or facts set forth from which fraud could be inferred or implied. We conclude that the plaintiffs’ amended complaint was properly dismissed with prejudice.

In view of our conclusions, it is unnecessary for this court to consider or determine other issues asserted, including the motion taken with the case.

For the reasons given, the order appealed from is affirmed.

Affirmed.

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


author: PRESIDING JUSTICE DEMPSEY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Pinkston and Sylvester Lewis, Defendants-Appellants.
    Gen. No. 53,182.
    First District, Third Division.
    July 2,1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellants; Edward V. Hanra-han, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Paul P. Biebel, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE DEMPSEY.

Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James D. Smith (Impleaded), Defendant-Appellant.
    Gen. No. 53,811.
    First District, Third Division.
    July 2, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman and James J. Doherty, Assistant Public Defenders of Cook County, of Chicago, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of Chicago, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a jury trial the defendant was found guilty of murder and armed robbery. After a hearing in aggravation and mitigation, he was sentenced by the court to the Illinois State Penitentiary for not less than thirty nor more than sixty years. On appeal he contends (1) the State failed to prove him guilty beyond a reasonable doubt, (2) his cross-examination of a prosecution witness was unduly restricted, and (3) the withdrawal of his attorney following the verdict but prior to the hearing in aggravation and mitigation was highly prejudicial. The evidence adduced was mainly circumstantial and covered a considerable period of time. For that reason a rather lengthy summary is necessary to an understanding of the issues raised on appeal.

The deceased, Dominic Lamberta, was the proprietor of Drive-In Liquors, a combination tavern and packaged liquor store in East Chicago Heights, Illinois. At approximately 7:10 a. m. on December 19, 1966, Mrs. Fern Glenn, a bartender arriving for work, discovered Lamberta’s body on the floor outside his office. His back pocket had been pulled out and his wallet was missing. The cause of death, according to a pathologist employed by the Cook County Coroner, was a bullet which had penetrated his brain. The last persons seen in the tavern with the deceased were the defendant James Smith, his brother Donald, and two customers, Glenn Broomhead and his wife.

Mrs. Glenn testified on behalf of the State. She told of her discovery of the body on Monday morning, December 19, 1966. She further testified that a tally of the weekend receipts added up to $2,700, that it was Lamberta’s usual practice to take the receipts home with him on Sunday night, that a check of the two cash registers in the store yielded $100, the amount always kept there, and that an additional $200 which was kept on hand for bar change was found in a metal box in the office. On cross-examination, Mrs. Glenn testified that it was customary for Lambería to handle her funds and that at the time of his death he had $900 belonging to her in his possession; that when she arrived for work on the morning of the 19th, the doors were locked; that one had been bolted from the inside and that the other door, through which she entered, had been locked with a key. She further testified that there were in existence only three keys to that door, one which she had, another which was found on the deceased’s body, and the third, which was always kept in the cash register and which was missing.

Earl Hansen testified that he worked as a bartender at Drive-In Liquors on the night preceding the discovery of Lamberta’s body. He knew the defendant and his brother as former customers who, prior to the event in question, had frequented the tavern twice a week. Hansen recalled that about two weeks before the murder, he removed the side door key from the cash register in the packaged goods area of the store and that at that time the defendant and his brother were both standing nearby. The last time Hansen saw Lambería alive was immediately prior to his leaving the tavern at about 12:45 a. m. on December 19, 1966. At that time he looked into all the rooms and found that the only persons remaining, other than Lambería, were the defendant James Smith, his brother Donald and Mr. and Mrs. Broomhead.

Mrs. Broomhead testified that she arrived at Drive-In Liquors a little after midnight. She saw no one enter from the time Hansen left until Lambería accompanied her and her husband to the door a little after 1:00 a. m. Since she had remained at a small bar in the packaged goods area of the store, which was separated from the tavern section by a partition, she did not actually see either the defendant or Ms brother. She testified, however, that she was able to hear male voices coming from beyond the partition.

Glenn Broomhead testified that he and his wife arrived at Drive-In Liquors at about 12:40 a. m. and remained about twenty minutes. In all other respects his testimony is consistent with that of his wife.

Defendant’s mother testified that her son had been living with her on December 18, 1966. He left home that evening and was not seen again until he was apprehended by the Indiana State Police on February 9, 1967. Defendant’s brother also left his home on December 18, 1966, and according to the testimony of his wife, was not seen again until February 9,1967.

The search for James and Donald Smith, as among the last persons to see Lambería alive, continued until February 9, 1967. The events leading to their capture were related by one Frank Vincent, who rented a cabin behind the Hill Top Tavern in Hammond, Indiana. At about 4:00 p. m. on February 8th, Vincent went to his cabin. He testified that as he entered, defendant grabbed him from behind and holding a gun to the back of his head said, “Don’t say anything or don’t try anything foolish or I’ll kill you.” Later the defendant warned him that he had already committed one murder and that one more would not make any difference. The witness was forced to take both men to the cabin of Ben Desotell, the owner of the Hill Top Tavern. Desotell was not in his room. When he returned, however, he was confronted by the Smiths who were holding guns pointed directly at him. Defendant stayed with Desotell while his brother had Vincent drive him to his (Donald’s) home. After complying with Donald Smith’s demand, Vincent drove to Cook, Indiana, where he telephoned the State Police. When the police arrived at Desotell’s cabin, defendant surrendered.

J. P. Mahr was the only witness called on behalf of defendant. He testified that he had been employed by the defense as a private investigator: that in August 1967, he had a conversation with Frank Vincent, during which Vincent said that the defendant had never admitted killing anyone; and that Vincent repeated that statement to him three or four times.

We will proceed to a consideration of defendant’s contention that the evidence fails to establish his guilt beyond a reasonable doubt. He urges that there is a lack of evidence to connect him with the crime, such as fingerprints, the missing key, the murder weapon and the stolen money; that there were no eyewitnesses; that the evidence of flight is inconclusive and that the testimony of Vincent as to defendant’s alleged admission of guilt was rebutted by Mahr’s testimony. Viewing the evidence in its entirety, however, it shows that Dominic Lambería was murdered in his tavern, that $3,600 was taken from the tavern, that among the last persons to be seen with the deceased were the defendant and his brother. When the killers left the tavern, they locked the door behind them with a key taken from the cash register. The evidence shows that the Smiths had an opportunity to learn the location of that key. Immediately after the murder and apparently without returning to their homes, the defendant and his brother disappeared for over seven weeks. In addition, there was the testimony that the defendant admitted the commission of a murder.

In Illinois, evidence of an accused’s flight has long been held admissible as a circumstance which may be considered with other evidence as tending to prove guilt. People v. Rossini, 25 Ill2d 617, 185 NE2d 831; People v. Lobb, 17 Ill2d 287, 161 NE2d 325; People v. White, 99 Ill App2d 270, 240 NE2d 342. The fact of an accused’s flight is evidence of a consciousness of guilt and thus is probative of guilt itself. 2 Wigmore, Evidence, § 276 (3rd ed, 1940); People v. Herbert, 361 Ill 64, 196 NE 821. In the instant case, the crime was not revealed until the discovery of Lamberta’s body at about 7:00 a. m. on December 19th. More than six hours had elapsed from the time that James and Donald Smith were seen in the tavern with the deceased and two customers. Defendant and his brother did not return home after leaving the tavern, but disappeared for well over a month, without notifying their families either of their departure or their destination. Those facts, coupled with the improbability of the knowledge of Lamberta’s death being possessed by anyone other than his killers, renders the immediate departure of the defendant and his brother a highly incriminating circumstance.

The testimony of Mahr, defendant’s private investigator, conflicts with Vincent’s testimony relative to the defendant’s boast that he had already murdered one person. Where the evidence is conflicting, it is the function of the trier of fact to determine the credibility of the witnesses and the weight to be given their testimony. People v. Henderson, 33 Ill2d 225, 210 NE2d 483; People v. Calcaterra, 33 Ill2d 541, 213 NE2d 270; People v. Davis, 107 Ill App2d 162, 246 NE2d 83. We can find no basis in the record for the substitution of our judgment on this point.

Defendant contends that the circumstantial evidence upon which his conviction rests can be explained on an hypothesis of innocence which this court is bound to accept. He argues that flight is not an uncommon reaction of innocent people who believe they are prime suspects in a murder investigation; that the brothers were devoted to their families and that someone could have entered the tavern after the bartender left and perpetrated the crime. As we have before noted, Lamberta’s death was not generally known until the following morning. Yet the defendant and his brother apparently did not return to their homes and their flight preceded knowledge by the public of the crime. That they had such knowledge is not explained. The brothers, it is argued, were devoted to their families and this is commendable, but it is of little aid in determining the question of guilt or innocence in the case before us. The defendant argues that it is not inconceivable that someone else entered the tavern and killed Lambería. That is pure speculation without the slightest support in the evidence. As stated in People v. Huff, 29 Ill2d 315, 194 NE2d 230 (p 320):

“The fact that the circumstantial evidence relied upon must not give rise to any reasonable hypotheses under which the defendant could be innocent of the crime charged [citing cases] does not mean that the trier of fact is ‘required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt.’ (People v. Russell, 17 Ill2d 328, 331.)”

It is our conclusion that the evidence presented was sufficient to convict the defendant of robbery and murder beyond all reasonable doubt.

The defendant contends that the cross-examination of Mrs. Glenn was improperly restricted. She was asked whether she knew John Costello, and replied that she did. She was then asked whether Costello had any interest in the tavern. An objection to that question was sustained on the ground of its irrelevancy. Defendant argues that by showing that Costello had an interest in the tavern, he would have proved that Costello would profit from Lamberta’s death, and hence had a motive for the murder. The permissible scope of this type of cross-examination is largely within the discretion of the trial court. People v. DuLong, 33 Ill2d 140, 210 NE2d 513. There was no inquiry on direct examination into the business associations of the deceased. No defense theory concerning Costello with the crime was brought out. The trial court did not abuse its discretion in refusing to permit the defense on cross-examination of a witness for the State to introduce a defense theory based on sheer speculation.

Defendant contends that the trial court abused its discretion in allowing his counsel to withdraw prior to the hearing in aggravation and mitigation. After the verdict was reached, counsel was granted permission to withdraw and an Assistant Public Defender was appointed to represent defendant. He made motions orally for a new trial and in arrest of judgment, both of which were denied. At the hearing in aggravation and mitigation neither the State nor the defendant presented any evidence. Since defendant’s attorney did not withdraw until a guilty verdict had been rendered by the jury, any error now urged can only be directed at the imposition of sentence.

At the hearing in aggravation and mitigation the trial judge asked the defendant whether he had anything to offer in mitigation. Defendant’s answer was “Nothing but a lot of contempt for you and your court.” Defendant was asked again whether he had anything to say in mitigation and he responded with a scurrilous attack on the State’s Attorney which need not be given further circulation through repetition in this opinion. Again the judge asked the defendant whether he had anything to offer in his own behalf. Defendant replied that he had nothing. The recent case of People v. Nelson, 41 Ill2d 364, 243 NE2d 225, is directly in point. The court said (p 368):

“A hearing in mitigation and aggravation was had, defendant was given ample opportunity to be heard and his failure to take advantage of it constituted a waiver.”

In that case the court noted that to hold otherwise would permit a defendant to stand silent and if not satisfied with his sentence, seek a reduction by pleading the withheld mitigating facts on appeal. We have carefully examined the record before us and conclude that defendant has waived his right to a further hearing in aggravation and mitigation.

The judgment is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sharon R. Smith, Defendant-Appellant.
    Gen. No. 54,308.
    First District, Third Division.
    July 2, 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 DEMPSEY.

Not to be published in full


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Holmes, Defendant-Appellant.
    Gen. No. 54,316.
    First District, Third Division.
    July 2, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowan, Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Arthur Lewis Belkind, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant Kenneth Holmes was charged with the crime of burglary. After a jury trial, he was found guilty of that charge and sentenced to a term of twelve to thirty years. He appeals, contending that he was not proved guilty of burglary beyond a reasonable doubt, and also that the sentence imposed by the court was excessive. The evidence adduced at trial was as follows.

On January 4, 1969, about 9:80 a. m. defendant was apprehended by the owner in the basement of a wholesale meat market located at 2025 West Cermak Road, Chicago. The basement of the premises was used for the storage of equipment such as handtrueks.

The owner of the meat business, Nick DiCarlo, testified that on the previous evening he had installed a new lock on the basement door, had removed a wooden stairway and had boarded up a wall. On the morning in question, he and his wife went down to the basement. He was carrying a gun and flashlight because the basement had been broken into a few days earlier. He noticed defendant sitting in a chair by the wall; he flashed his light at defendant and told his wife to call the police. Defendant was awake. Defendant’s clothes were soiled and full of coal dust, and Ms shoes had plaster on them. There was a coal bin in the basement. The lock to the basement door was gone and there was a glove holding the door shut. DiCarlo asked defendant what he was doing there, and he replied: “None of your f — mg business.” Defendant then asked DiCarlo for a cigarette, and DiCarlo gave Mm one. Defendant subsequently started to come at DiCarlo, but he fired a warning shot and held him at gunpoint for the police. DiCarlo testified that he informed the Grand Jury that defendant said nothing to him. He explained this by stating that he was too embarrassed to use defendant’s language.

Officers Oleczkiewicz and Ross of the Chicago Police Department responded to the call made by the owner’s wife and arrested defendant. A search of defendant revealed that he had a glass cutter and a pair of gloves covered with coal dust in his pockets. Officer Ross testified that the lock on the basement door had been pried off but that he did not make a thorough search of the area for the lock. He also saw a little storage area with an open door which had been pried open.

Defendant testified that he was walking on Cermak Road at about 8:30 a. m. or 9:30 a. m. It was a very cold day, and he had no place to sleep. He noticed a building in which he used to play as a child, went downstairs and found the door open. He entered the basement and laid down on a lounge chair. DiCarlo found him sleeping. Defendant also testified that he did not enter the building in order to commit a theft.

On cross-examination, defendant stated that he had written a letter to his mother from the County Jail asking her to change her story. He stated in the letter that he was sorry to ask her to lie, but asked that she testify that he did not sleep at home on the night of the incident. On redirect examination, defendant testified that he had slept at home on the evening in question, but only for an hour, and left before his father came home.

Defendant first contends that he was not proved guilty of burglary beyond a reasonable doubt, arguing that the evidence failed to establish the requisite intent on his part. The Criminal Code, Ill Rev Stats 1969, c 38, § 19-1 (a) provides in part as follows:

“A person commits burglary when without authority he knowingly enters ... a building . . . with intent to commit therein a felony or theft.”

Defendant maintains that the State failed to prove that he intended to commit a felony or theft, and that the evidence supported a hypothesis that he was attempting to sleep.

While intent must be proved beyond a reasonable doubt, it may be inferred from the facts and circumstances. People v. Gooch, 70 Ill App2d 124, 217 NE2d 523 (1966). In People v. Jackson, 98 Ill App2d 296, 240 NE2d 482 (1968), the court held at p 300:

“Defendants argue that there was reasonable doubt that a crime was committed because nothing was taken from the station and there was no testimony that anything had been disturbed or removed. However, the crime of burglary is complete upon the entering with intent to steal, and it is not essential to allege or prove that anything was taken.”

In People v. Rossi, 112 Ill App2d 208, 250 NE2d 528 (1969), the court held at pp 211-12:

“In the absence of inconsistent circumstances, proof of unlawful entry into a building which contains personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary.”

In the instant case, there was no dispute as to defendant’s presence on the premises, nor did he claim that he had received permission to enter. His contention was that he merely sought a warm place to sleep. This testimony was contradicted by the owner, who testified that defendant was not sleeping. It was also refuted by defendant’s admission that he wrote to his mother, asking her to say that he had not slept at home on the evening in question. Additionally there were other facts which could support an inference of entry with intent to steal. When arrested, defendant had a glass cutter on his person with a pair of gloves covered with coal dust. He made an obscene remark to the owner when asked what he was doing on the premises. Defendant also started to come at the owner, and was dissuaded only when a warning shot was fired. From these facts and circumstances, the jury as triers of fact reasonably could have drawn an inference that defendant intended to commit a theft after entering the basement. Although the basement lock was not recovered, it should be noted that one of the arresting officers testified that they did not make a thorough search of the area. While the fact that defendant’s clothes were covered with coal dust, and that he had plaster on his shoes may have supported an inference that defendant used force to make entry into the premises, it is well settled so as not to require citation of authority that proof of entry by force is not essential in a prosecution for burglary.

Defendant also contends that his sentence of twelve to thirty years was excessive, and requests that this court exercise its authority to reduce the sentence. Supreme Court Rule 615 (b) (4), Ill Rev Stats 1967, c 110A, § 615.

At the hearing in aggravation and mitigation, it was brought out that defendant was 22 years of age. He had four previous misdemeanor convictions and previously had been placed on probation for burglary.

We are mindful that our Supreme Court has indicated that the authority to reduce sentences should be exercised by reviewing courts with considerable caution and circumspection. The People v. Taylor, 33 Ill 2d 417, 211 NE2d 673 (1965). However, despite defendant’s previous criminal record, we believe that this is a proper case for the exercise of the authority to reduce sentence. Viewing the offense and the attendant circumstances, we find that the sentence imposed was out of proportion to the nature of the offense committed. Therefore, the judgment and sentence are modified to provide that the sentence imposed on defendant be confinement to the penitentiary for a term of not less than eight years nor more than twenty years, and as so modified, the judgment is affirmed.

Judgment modified and as modified, affirmed.

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


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eddie Chambers, Defendant-Appellant.
    Gen. No. 52,625.
    First District, Second Division.
    July 7, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert McGee, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

Eddie Chambers was convicted, following a bench trial, of the offense of rape in violation of Ill Rev Stats (1963), c 38, §11-1. Judgment was entered on the finding and he was sentenced to a term of not less than thirty nor more than fifty years in the Illinois State Penitentiary. In this appeal the defendant contends that certain fingerprint evidence was improperly admitted into evidence against him; that he was not proven guilty beyond a reasonable doubt; and that the penalty imposed is excessive.

Alvin Bell, the first witness called by the State, testified that he was the owner of Al’s Action Lounge, 6911 South Halsted Street, Chicago. At approximately 1:20 p. m. on the afternoon of January 18, 1966, he was present in the lounge when the defendant entered, seated himself at the bar and ordered a shot of scotch whiskey and a beer. Bell left the premises to bring in more stock from a storage area next door. He returned to the premises and put the stock in certain cabinets. He again left the premises at 2:00 p. m., leaving Harriet LaPorte, a waitress, in charge of the premises. At the time of his departure, the defendant and two other customers were present in the lounge. Bell did not return until 5:00 p. m.

Harriet LaPorte, the prosecutrix and second witness called by the State, testified that on January 18, 1966, she was employed as a waitress at Al’s Action Lounge. At approximately 1:30 p. m. on that date the defendant entered the lounge and seated himself at the bar, directly across from her, and ordered a drink. The defendant was wearing a three-quarter length leather jacket, which he removed and placed on the back of the stool on which he seated himself. He also wore a green poplin jacket, maroon or red shirt, and dark pants. At this time Alvin Bell, the owner of the establishment, and two customers were also present. Bell then left the premises for a short period of time and, during his absence, prosecutrix served a shot of scotch and a beer to the defendant.

Bell again left the establishment at approximately 2:20 p. m. and the two customers left about five minutes thereafter, leaving the prosecutrix and the defendant alone in the establishment. They engaged in a conversation concerning certain rings which he was wearing and she played the jukebox at his request. The conversation continued and turned to a discussion of his favorite recording artists.

Prosecutrix further testified that she then came from behind the bar and proceeded toward the ladies rest room, located in the rear of the premises. To reach the rest room one must walk down a hall, which is three to four feet wide. While she was in the rest room, the defendant entered and placed a knife against her throat, warning her not to try to do anything or to cry out. Prosecutrix complied with his demand that she remove her clothing and pleaded with him not to hurt her. He then asked whether there was a back way out of the lounge, whether it was locked and if she had a key. She responded that the back door was secured with a padlock and she did not have a key. He told her that he thought she was lying and demanded her purse. He declined her offer to retrieve it for him and demanded to know where it was. She told him that it was in a cabinet behind the bar and while he retrieved it, she remained in the rest room. He returned to the rest room with her purse and removed her keys. He then left the room a second time and she heard him tell someone in the lounge area that the bar was closed. He again returned to the room and told her to come out into the hall. The knife was in his right hand and he placed his right arm around her waist. He then told her to lie down on the floor in the hall and he had intercourse with her. Following the act of intercourse, he placed her back in the ladies rest room, saying that she should remain as she was, as he was coming back. She remained in the rest room until she heard familiar voices in the bar area. State’s exhibit number 3 is, in her opinion, the same green jacket worn by the defendant on the day of the offense.

Finally the prosecutrix testified that the police arrived between 2:45 and 3:00 p. m. and, following a conversation with her, took her to St. Bernard’s Hospital. Thereafter, she rode around the neighborhood of the bar until about 8:00 p. m. and was then taken to Billings Hospital. No medical tests were taken at either hospital. The next time she saw the defendant was on February 2, 1966, at the twenty-first district police station.

Detective Thomas Quinn of the Chicago Police Department, also called by the State, testified as follows. At approximately 3:00 p. m. on January 18, 1966, he went to Al’s Action Lounge and “protected” the scene. Specifically, he “protected” a twelve-ounce Schlitz beer bottle, a drinking glass, and a shot glass until Officer O’Malley of the police department crime laboratory arrived. On February 1, 1966, he accompanied the prose-cutrix to the twenty-first district station where they viewed the defendant in a five-man lineup.

Officer Arthur Castrejon of the Chicago Police Department testified that he arrested the defendant on January 31, 1966. State’s exhibit number 3 is the same green jacket which defendant was wearing at the time of his arrest.

Officer Timothy Brown, the next witness called by the State, testified that he is the lockup keeper at the twenty-first district station. On February 1, 1966, he took rolled ink impressions of the defendant’s fingers. State’s exhibit number 6 is the card upon which those impressions were taken. After he had fingerprinted the defendant, exhibit number 6 was forwarded to the Bureau of Identification.

Officer William J. Frost, the next witness called by the State, testified that on January 18, 1966, he went to Al’s Action Lounge. There he conducted a fingerprint examination of a Schlitz beer bottle, drinking glass, and shot glass. These items were setting on the bar. His examination of the items enumerated revealed ridged impressions on the beer bottle and drinking glass. He transported these items to the police crime laboratory, where he photographed them. State’s exhibit 8 is a negative of the ridge impressions found on the drinking glass and exhibit number 9 is a negative of the impression found on the beer bottle.

Joseph W. Mortimer, a fingerprint technician in the employ of the identification section of the Chicago Police Department, was called by the State and testified as follows. State exhibit number 10 is a card bearing certain rolled ink fingerprint impressions and the name of the defendant. Mortimer received this card at the identification section on February 1, 1966, through the police mails. On that same date, he compared the impressions on exhibits 6 and 10 and concluded that they were identical. He then compared the impressions on exhibit 10 with the photographs of the latent prints. He concluded that the latent print shown in exhibit 9 is identical with the inked impression of the middle finger on exhibit 10.

The first contention raised by defendant on appeal is that exhibit 10 was improperly admitted into evidence against him as there was no showing as to when, where, and under what circumstances those impressions were made. The State has argued that the testimony of Mr. Mortimer conclusively established that the impressions on exhibit 10 were those of the defendant, and thus the admission of the exhibit into evidence was proper. While we must agree that Mortimer’s testimony was sufficient to establish that exhibit 10 bore impressions made by the defendant, we are not satisfied that such a showing itself constitutes a sufficient foundation for admission of the exhibit in question into evidence. The objection by the defense to its admission on the grounds that there had been no testimony as to the time, place, and circumstances under which those impressions were taken was sufficient to raise the constitutional objection to the admission of such evidence as was upheld in the case of Davis v. Mississippi, 394 US 721, 89 S Ct 1394 (1969). Thus, without a showing that the circumstances under which the impressions were taken passed Fourth Amendment requirements, it was improper to admit them into evidence and likewise improper to permit expert testimony with respect to their comparison with other prints.

Defendant’s contention that he was not proven guilty beyond a reasonable doubt has two facets. The first, which is not affected by our ruling on the fingerprint evidence, is that the corpus delicti of the offense of rape was not proven beyond a reasonable doubt. Specifically, he argues that there was no evidence of resistance on the part of the prosecutrix, that her testimony was not corroborated by medical evidence or otherwise, and that she did not attempt to escape.

Section 11-1 of the Criminal Code defines the offense of rape as an act of intercourse by force and against the will of the female. Thus, it has been held that consent, no matter how reluctantly yielded, negatives the possibility of the existence of the element of the offense which requires that the act be committed against the will of the female. People v. De Frates, 33 Ill2d 190, 210 NE2d 467 (1965). It is also well established however, that when resistance would be futile or extremely hazardous to the individual, proof of resistance is not necessary to support a conviction for rape. People v. Jackson, 103 Ill App2d 209, 243 NE 2d 551 (1968). We find the evidence presented by the State to be sufficient to fall within the latter rule. The prosecutrix testified that she and her attacker were alone in the establishment. He confronted her in the rear of the establishment brandishing a knife, and the only avenue of escape, even when he left her presence, was the rear door which was secured by a padlock to which she did not have a key.

Defendant’s argument with respect to corroboration is also without merit. Prompt complaint, such as was here made to the police, is sufficient to corroborate the testimony of the prosecutrix. People v. Jackson, supra. We hold that the corpus delicti of the offense of rape was established beyond a reasonable doubt.

The second phase of defendant’s contention that he was not proven guilty beyond a reasonable doubt challenges the sufficiency of his identification as the perpetrator of the offense. He points out that the prosecutrix did not testify to the physical characteristics of her alleged attacker, but merely described his clothing. We agree with the defendant that it would appear strange that no description of the physical characteristics would be given in a case where the prosecutrix was afforded such an excellent opportunity to view the offender. Our review of the record has disclosed, however, that the reason for this absence is that she was not asked, either in direct or cross-examination, to supply such information. Extensive cross-examination was conducted with respect to the clothing worn by the offender, but this line of questioning was prompted by an inquiry into the clothing worn by the attacker rather than his general physical appearance.

Further, we do not believe that the exclusion from consideration of the fingerprint evidence of which the defendant has complained will alter the result. That evidence merely served to establish that the defendant was present in the lounge at some time and did not consequentially bear upon his identification as the offender. The identification by the prosecutrix was positive and unshaken on cross-examination. We find her testimony to be sufficient to establish that defendant was the perpetrator of the offense beyond a reasonable doubt.

Finally, the defendant has argued that the sentence imposed is excessive. When the sentence imposed is within the statutory limits, this court will not lightly disturb the determination of the trial court on the question of the term of the sentence. In view of the past criminal record of the defendant, we believe that the sentence imposed is justified. The judgment of the Circuit Court is affirmed.

Judgment affirmed.

McCORMICK, P. J. and BURKE, J., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    Marguerite M. Bennett, Plaintiff-Appellant, v. Maryane Gollant, Alias Maryane Gallant, Individually, and d/b/a Fifth Season of Fashion, and Fifth Season of Fashion, Inc., an Illinois Corporation, Defendants-Appellees.
    Gen. No. 52,917.
    First District, Second Division.
    July 7, 1970.
    Rehearing denied September 9, 1970.

      Mitchell Edelson, Jr., of Chicago (Dennis Cunningham, of counsel), for appellant.
    Arthur Aaron Ellis and Morris W. Ellis, of Chicago (Ellis and Ellis, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Marguerite Bennett, the plaintiff, had worked in a dress shop which was owned and operated by the defendant, Maryane Gollant. The defendant discharged the plaintiff in May 1966, and later invited her to come to the shop to collect money due her. When the plaintiff arrived, the defendant had her arrested on a charge of disturbing the peace. The plaintiff was later discharged from the court. She filed a complaint in two counts.

In Count I the plaintiff claimed she was entitled to salary earned at the time of the discharge, and that she was entitled to money wrongfully withheld by her employer. She claimed that $630 had been withheld for income tax and social security, but that only $396.31 had been paid into plaintiff’s account with the government. The complaint also alleged that the false swearing of the warrant for her arrest and her actual arrest were defamatory; that the arrest was used for the improper purpose of covering up her just claim for money due her. The prayer for relief was in the amount of $5,000 damages and $1,000 attorney’s fees, as well as loss of time and wages incurred by her being compelled to attend court hearings as a result of the false charges. In her second count plaintiff sought punitive damages in the amount of $3,000, based on a special ■finding that malice was the gist of the action.

The suit was filed July 13, 1966. Summons was returned as having been personally served on the defendant on July 19, 1966. The return date was August 18, 1966, but no appearance or answer was filed by or on behalf of defendant by that time. On November 16, 1966, an order of default was entered against the defendant. Notice of the default and of a December 29, 1966 proveup was mailed to defendant by plaintiff’s attorney. Judge Horan heard plaintiff’s evidence and entered a judgment against the defendant for $9,381.69, as well as a special finding that malice was the gist of the action. Costs were charged to the defendant and an order was entered that execution issue against the body of the defendant.

The defendant failed to appear at a citation hearing, although a deputy sheriff’s return indicated that she was personally served with notice of the hearing. On August 16, 1967, the plaintiff sued out a writ of capias ad satisfaciendum, which was delivered to the sheriff on August 18, and on August 22, the sheriff notified the defendant. The defendant surrendered to the sheriff and appeared before Judge Olson on September 6, 1967. The hearing was continued for three weeks upon defendant’s prayer for additional time to raise the money to pay the judgment.

On the continued date, the defendant filed a petition seeking to have the judgment vacated and the capias quashed. A hearing was set over for two days, and on the appointed day Judge Hermes indicated for the record that for the sake of his ruling he would assume that the defendant had been properly served. He then entered an order vacating the judgment and quashing the capias. This appeal is taken from that order.

The following is the petition filed by defendant under the provisions of section 72 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 72):

Now comes the Defendant, MARYANE GOLLANT, and says:
1. That an ex-parte judgment was entered in this cause on behalf of the Plaintiff against the Defendant.
2. That the Defendant, MARYANE GOLLANT was never served with summons in this case, and the first knowledge she had of the pendency of this suit is when she received a letter from the sheriff’s office notifying her that if she did not appear in court, a warrant would be issued for her arrest. Said letter was received by the Defendant on August 28, 1967, notifying your Petitioner to appear on September 6,1967.
3. That your Petitioner appeared in Room 1307 on said September 6, 1967, and was first informed that a judgment was entered against her.
4. That the Plaintiff in his cause of action failed and omitted to ask for a body execution against the Defendant in his Complaint at Law, and he is therefore precluded from being granted such relief.
5. That the Plaintiff’s cause of action is based on false allegations of fact.
6. That the Defendant has a good and meritorious defense to the Plaintiff’s cause of action and that she has used due diligence in moving to vacate the judgment and special findings entered in this cause, without her knowledge.
7. That the Plaintiff’s cause of action is based on fraudulent allegations, none of which are true.
8. That the Defendant was never notified that she was in default in this cause, and no notice was ever sent to her or given to her, that the Plaintiff was to prove up damages.
WHEREFORE, the Defendant, MARYANE GOL-LANT, prays that the ex-parte judgment entered in this cause be vacated and set aside, and that any special findings of malice be vacated and set aside; and that any capias ad satisfaciendum be quashed.

If we were to hold that this petition contains sufficient allegations to justify the setting aside of the judgment and quashing the capias, then few judgments could ever be considered final. The assertion that the plaintiff’s allegations are all false and fraudulent is no more than an attempt to attack the judgment. The time to have raised that question was by answer to the plaintiff’s complaint in the original action.

The defendant says she has a good and meritorious defense and has employed due diligence in moving to vacate the judgment, yet she does not state what the defense is, nor does she allege facts to support that claim. Her assertion that she was never served with notice of the action pending against her is a collateral attack on the returns by officers of the court. The allegations in the petition are nothing more than conclusions, and she has attempted nothing more than a collateral attack on a judgment already entered against her.

In Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350, the defendant filed a motion to vacate a judgment which had been entered against him. In support of his motion he set forth facts which indicated that he had retained a law firm to represent him, and that the clerk of that firm had erroneously recorded the summons served upon the defendant as of November 1, 1950, while it had in fact been served on October 31, 1950. Because of the error an appearance was not filed until a time beyond the actual return date. An employee of the law firm telephoned plaintiff’s attorney to request a copy of the complaint which had been filed against the defendant. Meanwhile, plaintiff’s attorney, without notice to the defendant or his attorneys, obtained a default judgment against the defendant. Subsequently, attorneys for plaintiff and defendant, respectively, appeared in criminal court for proceedings relevant to the same acts which gave rise to the civil proceeding. At that time the default judgment had already been entered for fourteen days. The attorney for defendant offered a settlement in the civil case, and the judge continued the case until January 30, 1951, so that they might arrive at a settlement. Plaintiff’s attorney, without revealing that a default had already been entered against the defendant, told the defense attorney that he would not be able to discuss the matter until after the first of the year. He did not inform plaintiff’s attorney of the default until January 4, 1951, a date past the thirty days from entry of the judgment.

Affidavits and counteraffidavits put squarely in issue the question as to whether the judge in the civil action had been informed that a criminal action was pending between the two parties over the same events, and whether the judge in the civil action had been informed that defendant had retained attorneys to represent him in the civil action.

The opinion in Ellman sets out an excellent short history of the development of section 72 of the Civil Practice Act from the writ of error coram nobis. The main problem facing the court was to determine whether the trial court, sitting as a court of law, possessed the authority to vacate the judgment, since that power historically could only be exercised in courts of chancery. At the time of the opinion the Civil Practice Act had not yet “effected a complete amalgamation of the practice and procedure in common-law and suits in equity .. . .” (Page 292.) It appears from the opinion that the court in Ellman had little hesitation in determining that the facts alleged in the petition were sufficient to justify a vacation of the default judgment, and the court’s primary concern was the resolution of the issue as to whether a court of law could properly exercise such power since the remedy was equitable. However, the court concluded that the facts as alleged justified the setting aside of the judgment.

A comparison of the facts alleged in the petition in Ellman with the bare assertions in the instant case leads us to believe there was no justification for the trial court’s setting aside the judgment of default in the case under review. In Stanley v. The Bank of Marion, 23 Ill2d 414, 178 NE2d 367, at 417, the court said:

“Section 72 may not be used to again put in issue a factual question previously adjudicated but is available only to correct errors appearing upon the face of the record or to bring before the court facts not appearing in the record nor previously determined which, if known to the court at the time the judgment or decree was entered, would have prevented its rendition. Southmoor Bank and Trust Co. v. Willis, 15 Ill2d 388; People v. Sheppard, 405 Ill 79.”

Judgments are not to be set aside simply because a party adversely affected by such judgment comes into court under a section 72 petition and boldly asserts that the judgment was premised on false facts and that a good defense exists. Judgments are entitled to finality and it is only under such extenuating circumstances as quoted above that judgments will be set aside, although we would add to the above quotation that such facts not appearing of record which would otherwise justify vacating a judgment will not justify such vacation unless it is also shown that such facts could not reasonably have been disclosed at or prior to the time of entry of the judgment. This requires a showing of due diligence on the part of the party initiating the section 72 petition and requires far more than the mere assertion of due diligence, as was made in the present case.

It is our conclusion that the relief requested in the section 72 petition presented to the trial court in the case before us should have been denied because the petition was insufficient on its face. The only allegation that comes close to being sufficient is that concerning nonservice of summons, and even that is conclusory, fails to allege any supporting facts, and is directly contradicted by the returned summons bearing a deputy bailiff’s affidavit that it was personally served on Maryane Gollant. Furthermore, the judge indicated that for purposes of his ruling he was presuming that the defendant had been served. Taking into consideration the premise of proper service, we are unable to see upon what ground the judgment could have been vacated. The defendant was properly served, and no excuse was offered for having failed to respond to the summons.

The defendant claims that the trial court invoked its equitable powers to strike the judgment. Such a statement is insufficient and we must still seek the basis for the exercise of such power. Here we find none. It is not necessary to consider the other contentions raised by plaintiff. The order of September 27, 1967, vacating the judgment and quashing the capias ad satisfaciendum is reversed.

Reversed.

LYONS and BURKE, JJ., concur.


author: MR. JUSTICE BURKE

text:
    Jennie Botich, by Her Father and Next Friend, Leon Botich, Plaintiff-Appellant, v. P. Lorillard Co., Incorporated, a New Jersey Corporation, Defendant-Appellee, and R. S. Benka, Defendant.
    Gen. No. 53,125.
    First District, Second Division.
    July 7, 1970.

      Ralph E. Brown, of Chicago (William J. Essig, of counsel) , for appellant.
    Hubbard, Hubbard, O’Brien and Hall, of Chicago, for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This action was brought to recover damages for personal injuries suffered by plaintiff, Jennie Botich, when a parked Chrysler automobile which she was entering was struck from the rear by a Chevrolet automobile owned by defendant P. Lorillard Company, hereinafter referred to as “Lorillard.” R. S. Benka, the Lorillard employee to whom the Chevrolet automobile had been assigned, was dismissed out of the case at the close of plaintiff’s evidence. At the close of all the evidence, the trial court directed a verdict for Lorillard. Plaintiff appeals only from the judgment entered on January 18, 1968, in favor of Lorillard and against plaintiff. No notice of appeal has been filed from the judgment entered on January 17, 1968, in favor of R. S. Benka and against plaintiff.

At approximately 9:30 p. m., on January 8, 1962, plaintiff, her sister, and her mother were at the Evergreen Shopping Plaza in Evergreen Park. They had returned to their automobile which was parked in the Plaza parking area, and were entering the automobile when it was violently struck from the rear. Plaintiff was thrown against the windshield of the Botich automobile and suffered serious injuries.

The driver of the Chevrolet automobile which struck the Botich automobile did not stop. Mrs. Botich testified that the driver of the other automobile was a woman and that she also noted and recorded the license number of that vehicle. It was conceded at trial that the automobile involved in the collision with the Botich automobile was owned by Lorillard and was assigned to R. S. Benka, a Lorillard salesman. The identity of the woman who was operating the Lorillard vehicle at the time of the mishap was not determined. R. S. Benka did not testify at the trial.

The record reveals that in January 1962, Lorillard employed ten to twelve salesmen in the Chicago area, each of whom was assigned a company-owned automobile. Lorillard’s Chicago division manager, Harry Seiler, testified with regard to the employment contract which Lorillard had entered with Benka. The contract recited in part that Benka was to use the automobile assigned to him for “strictly Company business.” Seiler testified that Lorillard’s regular business hours were 8:00 a. m. to 5:00 p. m. The employment contract further recited that Benka was to allow no one other than a Lorillard employee to “ride” in the vehicle assigned to him. Seiler stated that it was company policy to permit the salesmen to drive their automobiles home in the evening and to resume their use the following working morning. He also testified that, to his knowledge, no Lorillard employee used a company automobile after normal working hours.

Seiler testified that R. S. Benka was married, and that Seiler had met Benka’s wife on one occasion. He further testified that it was his policy as Lorillard’s Chicago division manager to meet the wives of all his salesmen.

At the close of plaintiff’s case the trial court allowed a motion to dismiss R. S. Benka out of the case, on the ground that the evidence showed that the driver of the Lorillard automobile was a woman, whereas R. S. Benka was a man. At the close of all the evidence, the trial court directed the jury to find for Lorillard and against plaintiff, on the ground that the presumption of agency between Lorillard and the driver of the Lorillard vehicle involved in the mishap which was raised by plaintiff’s evidence, was rebutted by the evidence introduced by the defendant during its case.

We are in agreement with the general proposition of law raised by plaintiff with regard to the question of agency, that a presumption of agency arises between the driver of a vehicle and the owner of that vehicle where the ownership thereof is established, and that the burden of going forward and introducing evidence then shifts to the owner to show that the driver was, in fact, not acting in the capacity of an agent at the time of the mishap. See Watt v. Yellow Cab Co., 347 Ill App 307, 312, 106 NE2d 760. The burden of proof, however, does not shift to the owner, and the effect of the presumption is to necessitate the introduction of evidence by the owner to meet the prima facie case created thereby. If the owner does not offer proof to rebut the presumption, the presumption will prevail; but where evidence is introduced which is contrary to the presumption, it ceases to operate. See McElroy v. Force, 38 Ill2d 528, 532-33, 232 NE2d 708.

In the instant case, plaintiff’s evidence made out a prima facie case of agency between Lorillard and the driver of the Lorillard vehicle in that it showed that Lorillard owned the vehicle in question. It then became the burden of Lorillard to go forward with evidence showing that no such agency, in fact, existed.

Through Mr. Seiler, Lorillard’s Chicago division manager, the contract of employment with Benka was entered into evidence, and Seiler also gave testimony that the vehicle involved in the mishap had been assigned to Benka. The undisputed evidence introduced by defendant was that R. S. Benka was a male; that the logical inference from Seiler’s testimony was that Lorillard employed only male salesmen; that the permitted use of the Lorillard vehicle assigned to Benka was limited strictly to company business; and that, to Seiler’s knowledge, no Lorillard salesmen worked after the hour of 5:00 p. m. This evidence clearly rebutted plaintiff’s prima facie case of agency between the driver of the Lorillard vehicle and the Lorillard company.

Plaintiff states that there was no evidence introduced by Lorillard tending to prove the identity of the driver of the Lorillard automobile. This burden did not fall upon Lorillard. Rather, once Lorillard rebutted the presumption of agency raised by plaintiff’s evidence, plaintiff was faced squarely with the burden of actually proving the agency alleged in the complaint. Prewitt v. Hall, 113 Ill App2d 198, 205, 252 NE2d 43. Since there existed no evidence which raised any issue as to the agency or the scope of employment which would require a determination on the part of the jury, the trial court was correct in directing the jury to return a verdict for Lorillard and against plaintiff. Brill v. Davajon, 51 Ill App2d 445, 450-51, 201 NE2d 253.

The cases cited by plaintiff are distinguishable on their facts. In Hedrich v. Borden Co., 100 Ill App2d 237, 241 NE2d 546, the evidence introduced as to the relationship between the parties in question was in dispute and was therefore a matter for the jury’s determination. In Horst v. Morand Bros. Beverage Co., 96 Ill App2d 68, 237 NE2d 732 there arose a question of fact as to the impeachment and the credibility of the witnesses who testified in rebuttal of the presumption of agency. See also Watt v. Yellow Cab Co., 347 Ill App 307, 106 NE2d 760; Warput v. Reading Coal Co., 250 Ill App 450.

For these reasons the judgment is affirmed.

Judgment affirmed.

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


author: JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Quinley, Defendant-Appellant.
    Gen. No. 54,158.
    First District, Second Division.
    July 7, 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

JUSTICE LYONS.

Not to be published in full.