author: TRAPP, J.

text:
    Barbara Gillespie, Administratrix of the Estate of Mose Childers, Deceased, Plaintiff-Appellant, v. Norfolk and Western Railway Company, a Corporation, Defendant-Appellee.
    Gen. No. 10,965.
    Fourth District.
    December 19, 1968.

      White & White, of Sullivan (Robert M. White, of counsel), and Paul M. King, of Chicago, for appellant.
    Samuels, Miller, Schroeder, Jackson & Sly, of Decatur (Carl R. Miller, of counsel), for appellee.
   TRAPP, J.

Plaintiff appeals from the order of the trial court dismissing her action for wrongful death and entering judgment for costs against her.

The issue is presented upon the refusal of the trial court to vacate a default judgment which had been entered pursuant to the failure of plaintiff to answer interrogatories within the 28 days prescribed by Rule 213 of the Supreme Court.

The facts may be taken to be true either because they are matters of record, are agreed upon, or are asserted by affidavit and not controverted.

The complaint was filed December 2, 1966. Motion to strike was filed January 5, 1967. Plaintiff’s interrogatories to defendant were filed January 5, 1967. Objections to these interrogatories were filed February 1, 1967. On February 10, 1967, the court struck paragraph 5(a) of the complaint, sustained objections to interrogatory 17 and limited interrogatory 25 to occurrence witnesses. Defendant’s answer was filed March 10, 1967. Defendant’s answers to the interrogatories of plaintiff were filed March 17, 1967, which would be late by reason of being more than 28 days subsequent to the order on the objections.

On April 12, 1967, defendant mailed interrogatories to plaintiff’s attorneys. On May 11, 1967, defendant’s attorney wrote plaintiff’s attorneys that he had not received the answers due May 10, 1967. Again, on May 19, 1967, defendant’s attorney wrote plaintiff’s attorneys that the answers were not received and added, “We hope you will not force us to ask the court to invoke sanctions.” On May 23, 1967, plaintiff’s attorneys wrote defendant’s attorney: “The interrogatories are in the hands of plaintiff for signature, and we expect them back within a few days.”

On May 29,1967, defendant moved the court to dismiss plaintiff’s complaint, “for the reason that plaintiff has refused to file answers to interrogatories propounded to the plaintiff by the defendant under Illinois Supreme Court Rule No. 213.” The record does not show proof of service of this motion or the undated notice that the motion would be presented, but plaintiff’s attorneys state that they received it after their letter of May 23, 1967, advising that the answers were forthcoming. Plaintiff’s counsel filed an affidavit in opposition to the motion to dismiss on May 25, 1967, and included therein a copy of their letter to defendant’s attorney that the answers were expected within a few days. The affidavit also asserted that defendant was not harmed by the delay. No counter-affidavit was filed.

The notice accompanying defendant’s motion to dismiss employed only the language: “. . . the defendant will present the attached motion . . . May 29, 1967.” Plaintiff’s counsel did not appear at the time specified. Defendant’s counsel presented its motion and notice, and the court made the following docket entry:

“And this cause comes on to be heard by the Court on the motion to dismiss, and there being no appearance by plaintiff’s counsel, and by plaintiff’s failure to appear, said motion presumed confessed and it is ordered and adjudged by the Court that said complaint, be, and it is hereby dismissed at the costs of plaintiff.
“It is therefore ordered and adjudged by the Court that the defendant, Norfolk and Western Railway
Company, a Corporation, do have and recover of and from the plaintiff, Barbara Gillespie, Administratrix of the Estate of Mose Childers, Deceased, its costs and charges herein expended and have execution therefor.”

No written order provided by Rule 271 of the Supreme Court was presented. It does not appear how plaintiff was advised of the order of dismissal. However, on June 20, 1967, plaintiff filed a motion supported by affidavit to vacate the order of dismissal and reinstate the cause. On the same day plaintiff filed the answers to defendant’s interrogatories.

Plaintiff’s attorneys’ subsequent affidavit filed in connection with a motion and a supplemental motion asserts that defendant failed to follow a procedure of placing the motion for setting on a request docket. This is not controverted, and such it is stated, led counsel to believe the motion would not be heard on the date in the notice. The language of the notice is not inconsistent with such practice. The statement that this was counsel’s belief is not controverted, but defendant’s brief asserts that plaintiff’s counsel was incorrect in their belief.

On June 14, 1967, the motion to vacate was heard by a Judge other than the one who ordered default. He indicated that he found no reason to disturb the May 29, 1967, order. At the request of plaintiff’s counsel the matter was redirected to the Judge who entered default. The latter declined to hear the motion, and it was decided by the Judge to whom presented.

In considering whether the circumstances here set forth justified the remedy of dismissing plaintiff’s suit for wrongful death we are confronted, to say the least, with a situation which tests the outer limits of that discretion which is, of necessity, vested in the trial courts to compel compliance with the rules. While the facts in this case are quite dissimilar at least as to the corn-

plexity of the subject matter of inquiry, nevertheless, we feel that certain principles set forth by the Supreme Court in People ex rel. General Motors Corp. v. Bua, 37 Ill 2d 180, 226 NE2d 6 (1967), afford us some light. In that case, 226 NE2d 6, at page 14, the Court, referring to the power of the trial court under Rule 17 to make any order that may be “just,” took note of the multitudinous fact situations which preclude the advisability of greater particularity in the rule, and said:

“Nevertheless such a breadth of power requires a careful exercise of discretion in order to balance the needs of truth and excessive burden to the litigants.”

Again, the Court, on page 16, approving the language of the California Court said:

“The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment.”

In judging the policy to be followed in imposing sanctions, we think full consideration should be given to the exact language of Rule 219 (c), which states the situation calling for imposition of remedies listed in the following manner:

“If a party, . . . unreasonably refuses to comply with any provision of Rules 201 through 218, or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, . . . .” (Emphasis supplied.)

Defendant’s motion to dismiss is in the language: “. . . the plaintiff has refused to file answers to interrogatories . . .” under Rule 213. There is no allegation of fact regarding unreasonable refusal to answer, or that failure to answer was without substantial justification. The affidavit in support of the motion is limited to statements that plaintiff had not filed answers or objections to the interrogatories and that the time for filing such had expired, and that plaintiff had written two letters, copies of which were attached.

It is noted that written objections to the motion to dismiss containing a copy of a letter indicating that the answers to interrogatories were forthcoming, were on file at a time when a motion stating there had been refusal to comply was taken as confessed. At the time this motion to dismiss was allowed, there was no order to produce answers. The answers were nineteen days late, but only six days had passed since an explanation was given that the answers were forthcoming. No showing was made by the moving party of the importance of immediate compliance. There is no showing that the trial judge, who took the motion as confessed in the first instance, was advised of the written objections on file or of the written statement of intention to produce the answers. Some consideration might also be given to the fact that the plaintiff, and both attorneys for plaintiff, were not residents of the county seat. There is no circumstance to indicate that plaintiff, or plaintiff’s attorneys, were either refusing to furnish answers to the interrogatories, or ignoring the request.

We have reviewed the cases cited by defendant in which the penalty imposed was dismissal of the complaint, or striking the answer. In Hawkins v. Potter, 44 Ill App2d 314, 194 NE2d 672, the court dismissed the complaint when plaintiff refused to obey a court order to answer interrogatories. In Chavez v. Elgin, J. & E. Ry. Co., 32 Ill App2d 68, 176 NE2d 664, plaintiff did not appear at a deposition, did not appear at a motion to dismiss and did not answer interrogatories for eight months, did not seek a modification of the dismissal in thirty days, although the order was printed in the Chicago Daily Law Bulletin and stated in the petition under section 72 that the dismissal was for want of prosecution instead of the above failures to respond to discovery procedures. In Payne v. Payne, 31 Ill App2d 141, 175 NE2d 614, plaintiff failed to comply with court orders in respect to discovery procedures. In Sager Glove Corp. v. Continental Cas. Co., 19 Ill App2d 568, 154 NE2d 833, plaintiff’s president failed to appear at deposition and failed to produce documents after appropriate court orders. In Stickler v. McCarthy, 64 Ill App2d 1, 212 NE2d 723, the defendant failed to produce documents after court order to produce. In Kocis v. Kocis, 47 Ill App2d 68, 197 NE2d 460, plaintiff failed to respond to court orders on discovery procedures. In Coutrakon v. Distenfield, 21 Ill App2d 146, 157 NE2d 555, the court found that defendant was a deliberate obstructionist to discovery procedures on deposition. Panion v. Checker Taxi Co., 53 Ill App2d 364, 202 NE2d 852, and Harris v. Oxford Metal Spinning Co., Inc., 315 Ill App 490, 43 NE2d 186, are abstract opinions which do not add to the analysis of the principle involved.

In summary, the cases cited all involve evidence of refusal to comply with discovery procedures or gross neglect in respect thereto, and nearly all involve disobedience or repeated disobedience of court orders. During oral argument, defendant’s counsel advised that he did not know of any case wherein judgment in bar was entered prior to the obtaining of a court order for a compliance with the Rule.

We are not prepared to hold, as contended by the plaintiff, that only in the case of demonstrated refusal to comply with the rules or failure to obey a specific court order may a complaint be dismissed, for the reason stated by the Supreme Court in People ex rel. General Motors Corp. v. Bua, 37 Ill2d 180, 226 NE2d 6, that the multitudinous variety of fact situations preclude the advisability of such finality.

However, in our judgment, there is evidence in this record of a reasonably prompt, though ineffective and inexpert attempt to demonstrate a willingness to comply with the rules regarding discovery which militates against the severe penalty of depriving plaintiff of all right to be heard on the merits of the case. In the light of the record we are of the opinion that some further effort to obtain compliance should have been made before imposing this severe penalty. Cf. Urso v. Reynolds Metal Co., 95 Ill App2d 251, 238 NE2d 271.

Judgments by default are not encouraged. Such judgments are based on a technique of procedure and should be subject to careful scrutiny. Lichter v. Scher, 11 Ill App2d 441, 138 NE2d 66; Westmoreland v. West, 19 Ill App2d 161, 153 NE2d 275. The court has other powers which are ample in most instances and make unnecessary the drastic action of judgment in bar. The entry of default should be employed as a last resort when necessary to enforce a just demand, but it should be set .aside when it will not cause a hardship upon the parties to go to trial upon the merits. Widucus v. Southwestern Elec., 26 Ill App2d 102, 167 NE2d 799; Ryan v. Monson, 47 Ill App2d 220, 197 NE2d 265. The many sanctions suggested in Rule 219 emphasize a variety of flexible methods by which courts may insure both discovery and trial on the merits.

It is ordered that the judgment of dismissal of plaintiff’s complaint be reversed and the cause remanded, with directions to set aside the judgment of dismissal and enter an order reinstating such complaint.

Reversed and remanded.

SMITH and CRAVEN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Jeanne Fosco, a Minor, by Her Mother and Next Friend, Rita Fosco, et al., Plaintiffs, v. Anthony R. Delisi, General Contractor, Inc., a Corporation, Midwestern Caisson Corporation, a Corporation, and Catholic Bishop of Chicago, a Corporation, et al., Defendants. Anthony R. Delisi, General Contractor, Inc., a Corporation, Counterplaintiff-Appellant, v. Midwestern Caisson Corporation, a Corporation, Counterdefendant-Appellee.
    Gen. No. 51,873.
    First District.
    December 19, 1968.
    Tom L. Yates, of Chicago (Carl E. Abrahamson and L. J. Locke, of counsel), for appellant.
    Leo J. Doyle, Jr., Richard L. Berdelle, Leo M. Tarpey, Jr., and Jerome H. Torshen, of Chicago (Jerome H. Torshen, of counsel), for appellee.
   TRAPP, J.

Counterplaintiff, Anthony R. Delisi (herein designated plaintiff) appeals from a judgment for eounterdefendant, Midwestern Caisson Corporation (herein called defendant) in a suit upon an indemnity agreement.

Plaintiff, Delisi, had a general contract with the Catholic Bishop of Chicago for construction of a school in a residential neighborhood and this contract contained an indemnity agreement against claims for injuries. Delisi entered a subcontract with defendant, to perform a specified part of the work which consisted of excavating for and placing 80 caissons. Such were constructed by drilling holes of varying diameter about 50 feet deep, and filling them with concrete and steel reinforcing rods.

While there were many contractors for the job, the caisson work was to be performed first. At the time of the injury which is the basis of the indemnity suit, all workmen on the job were employees of defendant, except one Geoppo, a superintendent of the general contractor whose job it was to visit the site and inspect the work.

In the digging process, large mounds or hills of clay were produced upon the site, and school children came to play there frequently after school. In each hole the cement was brought to within 30 inches of the surface of the ground and several steel reinforcing rods projected about 30 inches above the concrete. On July 18, 1960, Jeanne Fosco, a twelve-year-old girl, who had been playing on a clay hill, slipped into one of the holes and onto a rod and was injured. She recovered a judgment for $7,500 against both Delisi and Midwestern Caisson. They each paid half of the judgment. Plaintiff had tendered the defense to defendant, which was refused. Plaintiff expended $2,500 in attorneys’ fees and costs.

The contract between plaintiff and defendant provided that defendant would furnish all labor, materials, services and equipment and do all things necessary to perform the part of the contract, including applicable contract conditions regarding caissons, including drilling, furnishing and placing concrete, placing reinforcing dowels, caisson caps, concrete and soil tests, probing, engineering and layout, and placing anchor bolts. The contract included the following indemnity provision which is said to be substantially identical with the indemnity which the general contractor furnished the owner:

“8. The subcontractor must keep and save the contractor harmless from any and all claims, demands, suits which may be brought against the contractor by the subcontractor or subcontractors’ employees, or by the public in connection with or on account of any claim made by the public or employees, or any terms or provisions of any compensation act or any common law. . . .” (Emphasis supplied.)

The agreement required certificates of insurance to cover workmen’s compensation, public liability for bodily injury and property damage, coverage of the indemnity agreement and automobile and truck insurance.

If the area had been fenced it would have been the general contractor’s duty to do it. The general contractor testified that he felt a moral obligation to fence and ultimately did so. In the original action, one of the allegations of negligence was failure to fence. There was testimony that the general contractor’s superintendent requested the subcontractor’s foreman to cover the holes with boards, and that the foreman would say: “Okay.” The holes were ultimately covered with boards. The subcontractor’s workmen knew children played on the site and sometimes chased them away.

Plaintiff contends, first, that the indemnity agreement required defendant to indemnify him and second, that, even in the absence of an indemnity agreement, defendant being guilty of “active negligence,” and plaintiff being guilty at most of “passive negligence,” an indemnity obligation would arise as a matter of law. Defendant contends that in the absence of unequivocal language covering liability in such cases, indemnity agreements are construed not to cover those situations where the indemnitee is guilty of negligence, and further, that the negligence of both contractor and subcontractor are of like kind and are not distinguishable as “active” and “passive.”

Defendant’s contention appears to go even farther than the position stated. There is no doubt whatever that defendant was negligent in leaving the holes, which contained upright metal rods exposed, at a time when defendant had full knowledge that children played upon the construction site, and that there were hills of clay from which a person could slip into the holes and fall upon the rods. It appears that defendant is seeking a construction of the agreement that he is liable to indemnify only in those cases where the general contractor’s negligence in no way contributes or participates.

While it is true that there are some authorities which hold that an indemnity is not to be construed to cover cases of indemnitees’ own negligence in the absence of unequivocal language so indicating, the cases cited to us are cases in which the indemnitee’s negligence is the sole cause of the injury. No authorities cited in support of this rule exempt the indemnitor where his negligence is a proximate cause of the injury. So, in Westinghouse Co. v. Building Corp., 395 Ill 429, 433, 70 NE2d 604 (1947), a subcontractor’s employee was injured by the negligent.operation of an elevator car by an employee of the general contractor, the sole engineer on duty. He had complete control of the machinery which operated the elevators. Neither any negligence, nor any proximate connection with any act or omission of the subcontractor or his employees, was established or attempted to be established. The indemnity in that case referred to claims by persons “arising out of any acts or omissions by the Contractor.” In Thompson-Starrett Co. v. Otis Elevator Co., 271 NY 36, 2 NE2d 35 (1936), the court found the general contractor guilty of “active negligence.” No negligence or causal connection was attributed to the subcontractor or his employees. In Southern Pac. Co. v. Layman, 173 Ore 275, 145 P2d 295 (1944), one who had constructed a private crossing of a railroad, indemnifying the railroad against liability from any cause resulting directly, or indirectly, from the maintenance, presence or use of the crossing, was liable where a truck was damaged solely by the negligence of the railroad in operation of the train. In George Sollitt Const. Co. v. Gateway Erectors, Inc., 260 F2d 165 (7th Cir 1958), a subcontractor’s employee was injured by a hoist furnished by the general contractor when the hoist fell due to a defective “dog” which served to engage a gear on the hoist “or some other negligence or breach of duty by plaintiff or its employees.” No negligence or causal connection of any act or omission of the subcontractor or his employees was shown. In Chicago & N. W. Ry. Co. v. Chicago Packaged Fuel Co., 195 F2d 467 (7th Cir 1952), a trucker was using a coal hopper which defendant had been licensed by the railroad to construct. A railroad engine pushed the truck against the trucker and injured him. The court found that there was no question but that the injury was due to the negligence of the railroad. No attempt was made to connect any negligence or any act or omission of the licensee with the injury. In Halperin v. Darling & Co., 80 Ill App2d 353, 225 NE2d 92 (1967), where the lessor retained full responsibility for the active maintenance of a truck and lessee agreed to save lessor harmless from injury resulting from “operation” of the truck, the court held that brake failure due to negligent maintenance did not arise out of “operation” of the truck.

On the other hand, there are numerous authorities, and particularly Illinois authorities, which hold the indemnitor liable without proof of negligence on the part of the indemnitor, or where the negligence was that of the indemnitee, when the indemnity provision is general and does not specifically refer to the matter of the indemnitees’ negligence. In Gay v. S. N. Nielsen Co., 18 Ill App2d 368, 152 NE2d 468 (1958), the subcontractor was held on an indemnity in a contract which called for blasting and property damage resulted from the blasting. The court rejected the subcontractor’s contention that he could be held liable only upon proof of negligence. In Haynes v. Montgomery Ward & Co., 47 Ill App2d 340, 198 NE2d 548 (1964), a janitorial service company agreed to hold the building owner “ ‘harmless for any and all injuries or accident sustained by the Vendor’s employees while on the premises of the Fair Store Company or while en route to perform any services for the Vendee.’ ” The janitorial service company was given use of the elevators. The floor indicator on the elevator had been stuck for a long time before the accident, and a service company employee, being misled, stepped into the elevator shaft and fell to the bottom. The court held the subcontractor on the indemnity, and said that it is not necessary to make specific reference to indemnitees’ negligence to include such cases in the indemnity. It cited in support, Russell v. Shell Oil Co., 339 Ill App 168, 89 NE2d 415; Northern States Co. v. A. Finkl & Sons Co., 8 Ill App2d 419, 132 NE2d 59; United States Steel Corp. v. Emmerson-Comstock Co., 141 F Supp 143 (ND Ill 1956). The court said:

“The words ‘any and all’ are all inclusive; their conciseness does not limit their scope; . . . .”

See also Shell Oil Co. v. Hercules Const. Co., 74 Ill App2d 166, 219 NE2d 392, and 55 Ill Bar J 206. In Newberg Const. Co. v. Fischbach, 46 Ill App2d 238, 196 NE2d 513, an employee of the subcontractor sued the general contractor for negligence in reference to injury upon a scaffold. The subcontractor had assumed “entire responsibility and liability for any and all damage or injury of any kind or nature whatever (including death resulting therefrom) to all persons, whether employees of the Contractor or otherwise and to all property, caused by, resulting from, arising out of, or occurring in connection with the execution of the Work . . . .” The court held the indemnity was sufficiently broad to cover injury to the subcontractor’s employee caused by the negligence of the contractor. In Patent Scaffolding Co. v. Standard Oil Co., 68 Ill App2d 29, 215 NE2d 1 (1966), McKee and Company obtained a hold harmless agreement from JohnsManville Company, which included responsibility for damage to equipment used by Johns-Manville, its employees and subcontractors. A scaffold was damaged when certain tanks were being tested by McKee and Company at a time when four employees of Johns-Manville’s subcontractor were using the scaffold. The court held the indemnity was broad enough to protect McKee and Company against its own negligence. In Spurr v. Acme Steel Co., 238 F Supp 606 (1964), a pipe fitter, an employee of a subcontractor fell into a pit wherein the negligence of the general contractor was involved. The subcontractor had agreed to “indemnify and save harmless the Owner [Acme], the Engineer, the Contractor [LaSalle] and their respective agents from any and all liability, payments and expenses of any nature for injury or death to any person . . . caused or alleged to have been caused by the Sub-Contractor, . . . .” The court distinguished numerous cases including Westinghouse Co. v. Building Corp., 395 Ill 429, 70 NE2d 604, the latter upon the ground that there the indemnity was confined to “acts or omissions of the indemnitor.” The court noted a change in the trend of the Illinois decisions with a tendency to construe these agreements as normal apportionments of risk among various contractors. In De Tienne v. S. N. Nielsen Co., 45 Ill App2d 231, 195 NE2d 240 (1963), the agreement provided:

“The Subcontractor shall indemnify and save the Owner, Architect and General Contractor harmless against any and all claims for damages to persons, caused directly or indirectly or occasioned by the execution of the work included in this order.”

Employees of Nielsen, the general contractor, negligently caused injury to employees of the subcontractor. Nielsen settled with the employees and sued the subcontractor, and was allowed reimbursement despite Nielsen’s negligence.

In our opinion, the present indemnity covers all claims made by anyone based upon compensation statutes or common-law liability. We are not here confronted by the situation where the subcontractor had no control over the operation which was the basis for the conservative approach in all of the cases cited by defendant, which we have heretofore reviewed. Here the defendant could have covered the holes and prevented the particular incident that occurred. The defendant’s work was a proximate cause of the injury.

We are not authorized to read into the indemnity an exception in the case in which the indemnitee’s failure to act also created a situation which made the incidence of the situation more probable. The indemnity was sufficiently broad to cover the injury.

The judgment is reversed and the cause is remanded, with directions to enter judgment in favor of the counter-plaintiff and appellant in the sum of Three Thousand Seven Hundred Fifty ($3,750) Dollars, plus the stipulated attorneys’ fees in the amount of Two Thousand Five Hundred ($2,500) Dollars, and costs of suit.

Reversed and remanded, with directions.

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


author: TRAPP, P. J.

text:
    Robert Melvin, Plaintiff-Appellant, v. First Methodist Church of Western Springs, Defendant-Appellee.
    Gen. No. 51,906.
    First District.
    December 19, 1968.

      Philip E. Howard and David A. Decker, of Chicago, for appellant.
    Howard, French and Healy, of Chicago (Russell V. Guilford, of counsel), for appellee.
   TRAPP, P. J.

Plaintiff appeals from an order granting summary judgment to defendant entered upon findings by the trial court that plaintiff’s injuries arose out of, and in the course of, his employment, that the parties were under and bound by the provisions of the Workmen’s Compensation Act, c 48, § 138, Ill Rev Stats 1965, and that plaintiff’s exclusive remedy was under such statute.

The complaint and defendant’s motion for summary judgment, based upon plaintiff’s answers to a discovery deposition, disclosed that plaintiff had been employed as church janitor for some two years and that while he had no prescribed hours for doing his work, he customarily went to work at about 8:00 a. m. and continued until finished. It further appears that he fell on certain concrete steps leading from the public sidewalk to the church door. It is alleged that the steps were wet and defective and that plaintiff was injured as he was in the act of unlocking such door.

Plaintiff contends that the injury did not arise out of, or within the “scope” of his employment in that he had not yet commenced his duties. He points out that he had to go from the front door to the janitor’s room to change his clothes before he began to work.

He further urges that at the time of the injury he was not at a place where the duties of employment would subject him to a hazard to which the public was not exposed, or to a hazard in greater degree than that to which there was public exposure to injury.

It is noted that the Workmen’s Compensation Act applies to injuries described as arising out of and in the course of employment. We find no authority which permits the substitution of the term “scope” for the language “in the course of” as stated in the authorities.

An injury received on the premises while going to and from the actual duties of employment by a customary or permitted route within a reasonable time before or after performance of specific duties is within the course of employment. The causal connection arises in that the risk is connected with, or incidental to, such duties. Chmelik v. Vana, 31 Ill2d 272, 201 NE2d 434. In that case plaintiff was injured by the driving of a fellow employee while in a parking lot maintained by the employer for the use of employees. Similarly, the Supreme Court has held that an injury received in a fall on an icy parking lot provided by an employer arises out of, and in the course of, employment. Carr v. Industrial Commission, 26 Ill2d 347, 186 NE2d 280; DeHoyos v. Industrial Commission, 26 Ill2d 110, 185 NE2d 885.

The admitted fact that plaintiff had mounted the steps and was unlocking the church door while enroute to his duties discloses that the use of such door was either a directed, a customary, or, at least, a permitted method of ingress and egress.

Plaintiff argues that he was injured at a place where the public enjoyed equal exposure to hazard, and that the performance of his duties did not expose him to injury in a way peculiar to his employment, or to a degree greater than the hazard to the public, so that it is error to determine that the Workmen’s Compensation Act is an exclusive remedy. He cites Christian v. Chicago & I. M. Ry. Co., 412 Ill 171, 105 NE2d 741; Payne & Dolan v. Industrial Commission, 382 Ill 177, 46 NE2d 925; McField v. Lincoln Hotel, 35 Ill App2d 340, 182 NE2d 905. Such cases essentially concerned instances where the plaintiff had left the employer’s premises and was, in fact, upon a public street or sidewalk. See also Hinckley & Schmitt v. Industrial Commission, 391 Ill 577, 63 NE2d 729. In Carr and DeHoyos the Supreme Court discussed the icy parking lot as an “adjunct” of employers’ premises.

The use of the private steps and entrance by the members and guests of the church is not necessarily analogous to, or equated with, the use of wanes and streets by the general public. In any event, plaintiff’s duties required that he enter and leave the building at times when such was not being used by the members, so that he was required to take the premises as he found them with regard to snow, ice, wetness or other conditions of hazard. This circumstance was peculiar to his employment, and he was thus exposed to greater hazard than other persons regularly using the steps and entrance. Carr v. Industrial Commission, 26 Ill2d 347, 186 NE2d 280; DeHoyos v. Industrial Commission, 26 Ill2d 110, 185 NE2d 885; McField v. Lincoln Hotel, 35 Ill App2d 340, 182 NE2d 905.

The judgment of the trial court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: JUSTICE MORAN.

text:
    George Brown, Plaintiff-Appellee, v. Angelo Jannotta, Defendant-Appellant.
    Gen. No. 52,217.
    First District.
    December 19, 1968.

      Beutler, Fisher & Blake, of Chicago, for appellant;
    Louis P. Miller, and Frank J. Mackey, Jr., of Chicago, for appellee.
   Opinion by

JUSTICE MORAN.

Not to be published in full.


text:
    Holly Ann Rosenbaum, a Minor, by Estelle Rosenbaum, Her Mother and Next Friend, Plaintiff-Appellee, v. Marvin Raskin and Donna Raskin, Defendants-Appellants.
    Gen. No. 51,976.
    First District.
    December 19, 1968.
    Rehearing denied January 15, 1969.

      William D. Maddux and John M. O’Connor, Jr., of Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, for appellants.
    John J. Sullivan and John P. McAuliffe, of Chicago (William J. Harte, of counsel), for appellee.
   TRAPP, P. J.

The defendants appeal a judgment in the sum of $8,699 entered following a jury verdict in favor of the minor plaintiff. All post-trial motions were denied.

The plaintiff is the niece of the defendant, Donna Raskin. The injuries arose under the following circumstances: The defendants have daughters aged four and five years and the parties reside on the same street, their homes being something over one-half a block apart. Plaintiff, then aged some four years, frequently came to the home of the defendants to play with the daughters. On December 26th, the plaintiff’s mother telephoned to inquire whether the plaintiff could come over to play with the Raskin girls. In that conversation plaintiff’s mother was told that the defendants were leaving at about 1:00 p. m. to deliver Christmas parcels. Following such conversation, plaintiff walked to the home of the defendants, arriving between 10:30 and 11:00 a. m. At about 1:00 p. m. the defendants were preparing to depart on the Christmas errands and defendant Donna Raskin told the children to get into the defendants’ automobile. Plaintiff and the four-year-old Raskin girl preceded the adults and got into the front seat of the automobile, plaintiff being nearest the right front door. Donna Raskin came to the car and told the girls to get into the back seat of the car and turned to, or stood, at the right rear door of the sedan to open it for the children. Plaintiff is described as backing out of the front seat of the car and as she stood with one foot on the ground her left hand was on, or clutched, the center post between the front and rear doors of the car. As Donna Raskin opened the right rear door, the left hand of the plaintiff was pinched between the forward edge of the opening door and the center post. Donna Raskin did not observe the position of the child’s hand as she stood facing the side of the car, and she first became aware of the situation when the child cried. It was necessary to close the car door to release plaintiff’s hand. The defendant, Marvin Raskin, was not present at the scene but was in the house using the telephone. As a result of the injury plaintiff lost two joints of the small finger of her left hand.

The briefs and arguments submitted are directed to the issue whether plaintiff could recover upon a theory of ordinary negligence in the opening of the car door, or was a “guest” under chapter 95 y2, § 9-201, Ill Rev Stats 1957, so that there could be recovery only if there was wilful and wanton conduct. Plaintiff contends that there should Tbe recovery for ordinary negligence and that, as a matter of law, a minor of four years cannot be a guest, or in the alternative, there must be an express or implied consent of the parents to the trip, and that such was not present in either form.

The complaint alleges, (1) that “. . . the defendants owned, operated, maintained, and/or controlled ... a certain motor vehicle which was standing in the driveway . . ; (2) that the plaintiff was a minor four (4) years of age, who was seated in the front seat of the said automobile at the invitation of the defendants, or one of them”; and (3) that the plaintiff “. . . had been invited by the defendant, Donna Raskin, to enter the said automobile to have company for her own children also in said automobile.” The complaint continues to allege negligence in opening the door and in negligently failing to give warning of the opening of the door and “. . . negligently conducted themselves and/or operated and controlled the said automobile so that the plaintiff was injured . . . .” There are no other allegations purporting to define plaintiff’s status in the car. The answer denies the alleged negligence, but there are no specific answers to the allegations of invitation and presence in the car. They are deemed admitted. Chapter 110, § 40 (2), Ill Rev Stats. In a colloquy between the court and counsel during the discussion of a motion at the close of plaintiff’s evidence, there is reference to a motion theretofore made to dismiss the complaint as insufficient to state a cause of action. We do not find such motion in this record.

Defendants made a motion for a directed verdict at the close of plaintiff’s evidence, and again at the close of all of the evidence. Such motions raised the issue of proof under the “guest statute.” As to the first motion, there was argument by counsel as to whether the record showed express consent by plaintiff’s parents to the trip. As to the latter motion, there was presentation of arguxnent and authorities upon the matter of implied consent based upon general custody of the minor as entrusted to the defendants, as well as consent upon prior occasions for the making of trips.

At the conference on instructions, the court overruled the defendant’s objections to plaintiff’s tendered instruction directed to (1) the issues framed as ordinary negligence; (2) defining negligence; and (3) defining ordinary care. Defendant tendered an instruction setting forth the provisions of the “guest statute,” instructions defining wilful and wanton conduct and an instruction setting forth elements of proof under the “guest statute.” Each was refused. Following the court’s rulings on the several instructions, defendant’s counsel expressly reserving claims theretofore made, stated to the court that there should be an instruction as to the burden of proof upon the issues submitted to the jury. The court gave said instruction. The issues made are severally preserved in a post-trial motion.

The cause of action is framed in terms of ownership, operation and control of the automobile by the defendants and the presence of plaintiff in such automobile, “by the invitation of the defendants or one of them.” The application of the “guest” statute is not an affirmative defense which it is necessary to plead. Fischer v. Ross, 79 Ill App2d 372, 223 NE2d 722. To the same effect see Weinrob v. Heintz, 346 Ill App 30; 104 NE2d 534.

The objective, or legislative purpose, of the statute has been stated by the Supreme Court on frequent occasions. It is contained in the concept that there should be a difference between the liability of one who, out of generosity, renders gratuitous service to a fellow traveller from those who render service for compensation or expectation of personal gain. The court has stated that it was “evidently” the intention of the Legislature to correct an abuse arising because those:

“. . . who are charitably inclined should not be restrained by fear of the consequences of their own charitable act and the recipients should not be permitted to gain by the generosity of their host.”

Clarke v. Storchak, 384 Ill 564, 579, 52 NE2d 229; Summers v. Summers, 40 Ill2d 338, 239 NE2d 795.

The statute, within its own language, does not provide an exception in favor of minors. In a number of cases our courts have applied the guest statute to minors without question. Farley v. Mitchell, 282 Ill App 555 (a 14-year-old girl); Johnson v. Chicago & N. W. Ry. Co., 9 Ill App2d 340, 132 NE2d 678 (an 8-year-old plaintiff). See also Busser v. Noble, 22 Ill App2d 433, 161 NE2d 150 and Jung v. Buelens, 77 Ill App2d 391, 222 NE2d 707. Cf. Krantz v. Nichols, 11 Ill App2d 37, 135 NE2d 816.

Plaintiff urges that the rule should be different by reason of the age of this plaintiff, buttressing such position with opinions from divers jurisdictions. An early case relied upon is Rocha v. Hulen, 6 Cal App2d 245, 44 P2d 478, which held that an infant could not be a guest under the California statute defining the guest as one who “accepts a ride.” Subsequently, however, in Buckner v. Vetterick, 124 Cal App2d 417, 269 P2d 67, it was held that infants had the guest status of the mother whom they accompany. The Colorado Court, in Green v. Jones, 136 Colo 512, 319 P2d 1083, held that an infant was incapable of accepting the status of a guest. Clearly relevant to this decision was the fact that the driver of the car was the agent of the mother, who did not have the status of a guest, and that the driver defendant did not own the car and had no status as a host.

The plaintiff cites Fuller v. Thrun, 109 Ind App 407, 31 NE2d 670, as holding that a minor under seven years was incapable of exercising the choice to become a guest. Here, however, the doings of the defendant were contrary to parental consent and instruction. Subsequently, in Whitfield v. Bruegel, 134 Ind App 636, 190 NE2d 670, that court held that a child who was permitted to visit an aunt sometimes with parental permission and sometimes without, became a guest even though there was no express permission for the specific trip.

In Kudrna v. Adamski, 188 Ore 396, 216 P2d 262, 16 ALR2d 1297, it was stated that a child under seven years could not exercise a choice to become a guest. There again, the driver did not have the status of a host, as he was the agent of the child’s mother. Subsequently, in Welker v. Sorenson, 209 Ore 402, 306 P2d 737, it was held that a child aged 29 months had the guest status of its mother. The court noted that Kudrna could have been decided upon the question of the driver’s agency.

Michigan has held that an infant of five is not subject to the guest statute, using the standard that such infant cannot be guilty of contributory negligence, an intentional tort, or a crime. Burhans v. Witbeck, 375 Mich 253, 134 NW2d 225. The facts do not clearly show a host-guest relationship.

There are a substantial number of States which reject the concept that an infant is totally incapable of becoming a guest for purposes of the statute. Such authorities hold that the statute is operative where there is parental consent. Lynott v. Sells, 52 Del 385, 158 A2d 583 (a 5-year-old was given permission to accompany the defendant).

In Horst v. Holtzen, 249 Ia 958, 90 NW2d 41, a thirteen-day-old infant was held to acquire the guest status of its mother. That court noted that the authorities holding that an infant was incapable of assenting to becoming a guest operated within a narrow field, so that properly classified such cases are in two categories: (1) the child was incapable of accepting an invitation and was not in charge of a natural guardian who accepted for him, or (2) the statute itself defined the guest as one who accepts the invitation.

The Nebraska Court, in Snelling v. Pieper, 178 Neb 818, 135 NW2d 707, states that the weight of authority seems to be that a minor who, with the consent of the parents is transported gratuitously, is a guest within the meaning of the statute. In Favatella v. Poulsen, 17 Utah2d 24, 403 P2d 918, the guest statute was applied to a seven-year-old transported with the consent of the parents. We have, heretofore, noted the modification of the original California and Oregon rules through Buckner v. Vetterick, supra, and Welker v. Sorenson, supra, respectively.

Several States have adopted the rule that the guest statutes apply where the parent has placed the infant in the unrestricted custody of another. In Balian v. Ogassin, 277 Mass 525, 179 NE 232, a four-and-one-half-year-old boy was visiting his grandmother. The grandmother’s then husband saw the boy playing in the street and invited him to ride with him. The guest statute was applied. The court noted that the transportation was not clearly against the interest of the child so the custodian could not consent as a matter of law, and it was not to be implied that she did not consent. In Morgan v. Anderson, 149 Kan 814, 89 P2d 866, a child placed in the “unrestricted custody” of defendant was taken on an automobile trip without the knowledge of the mother. The Kansas guest statute controlled. The same conclusion was reached in In re Estate of Wright, 170 Kan 600, 228 P2d 911.

In Whitfield v. Bruegel, 134 Ind App 636, 190 NE2d 670, the court determined that the statute became operative upon implied consent of the parent. There the court noted that the child visited with the defendant many times, with no regular schedule of visits, and that such visits were permitted with or without knowledge by the parent; that the parents knew that during such visits the child might be taken on motor trips with or without express permission. That court determined that the issue could be decided as a matter of the parents’ consent, and found such consent where there was unrestricted custody.

We find nothing in the Illinois cases which requires a conclusion that, as a matter of law, an infant under the age of seven cannot be a guest for purposes of the statute. In the complexities of the age of the automobile which are inextricably intermingled with family and the interrelationship of different families, the fact of concrete, particular parental consent for a specific venture is no more a valid criterion upon the relationship at issue than the implied consent founded upon a “general custody,” or a course and practice of parental consent extended over a period of time for joining in motor trips with known hosts.

Defendant has urged Kemp v. Parmley, 16 Ohio St2d 3, 241 NE2d 169, as authority, under a comparable statute, for holding that the word “guest” does not require anything more than the “giving of hospitality.” In that case an eight-year-old girl was given a ride to school by a stranger and was injured enroute. The complaint alleged absence of parental authority or consent. Judgment for the defendant upon general demurrer was affirmed. The court said that “Assent ... is not ordinarily necessary” and that consequently a child of tender years may be a guest within the statute. We note that the age of the child in such case creates a different issue than is presented here. If the language in that opinion is limited to absence of parental consent under the facts pleaded, it is not necessarily inconsistent with the authorities herein discussed. We are not prepared to agree however if the language of that court eliminates the element of “acceptance” of hospitality, directly or through parental consent in the case of infants.

The evidence upon the existence of parental consent is contradictory. The only witnesses testifying were the defendant, Mrs. Raskin, and the plaintiff’s mother, Mrs. Rosenbaum. The evidence discloses that plaintiff was a frequent visitor in the home of the defendants, and that there had been other motor trips by the plaintiff with the defendants. Mrs. Rosenbaum, at one time, stated that there was telephonic consent, and at another time, that there was not. Mrs. Raskin gave similar testimony and ultimately each stated that she could not remember whether there was telephonic consent. Mrs. Rosenbaum stated that she knew of the prospective plans of the Raskins before the child went to visit them, and that she, herself, had called defendants to see whether the plaintiff could come over and play. In summary, the evidence is that on other occasions the plaintiff travelled with the defendants, in some instances with specific consent, and in some instances without it.

The relationship which brings the Illinois Statute into operation begins when the guest attempts to enter the automobile and ends when the person has safely alighted at the end of the trip. Tallios v. Tallios, 350 Ill App 299, 112 NE2d 723. Where a plaintiff riding in the automobile of another asserts that he is not a guest within the meaning of the statute, he has the burden of establishing another status. Leonard v. Stone, 381 Ill 343, 45 NE2d 620; Miller v. Miller, 395 Ill 273, 69 NE2d 878; Fischer v. Ross, 79 Ill App2d 372, 223 NE2d 722. Where an issue is raised as to the status as “guest” or “passenger,” there is a question for a jury. Leonard v. Stone, 381 Ill 343, 45 NE2d 620; Weinrob v. Heintz, 346 Ill App 30, 104 NE2d 534. In Lasley v. Crawford, 228 Ill App 590, decided prior to the guest statute, it was held that status as a guest, or as a member of a joint venture, v/as a jury issue.

The effect of the trial court’s ruling upon the several instructions was to hold, that as a matter of law, there was no host-guest relationship, inasmuch as he found no express consent of the parents to the trip, and concluded that implied consent through former arrangements or general custody had no significance. The contradictions within the testimony upon the issue of specific consent or the question whether a parental consent was to be implied from arrangements made at other times and places, are properly issues of fact to be decided by a jury in determining whether or not plaintiff was, in fact, a guest.

Plaintiff urges that the trip was “for the benefit of the defendants” as the plaintiff was placed in the car for the companionship of defendants’ children. The guest relationship cannot depend upon a single isolated fact. Connett v. Winget, 374 Ill 531, 30 NE2d 1. A jury could consider that such motor trip was a continuation of the relationship established when plaintiff, through her mother, asked to come to the home of the defendants to play with the children.

Plaintiff’s argument that the guest statute should not be considered because the journey had not commenced is not consistent with her pleadings upon which the case was submitted.

For the foregoing reasons the case is reversed and remanded for a new trial.

Reversed and remanded.

SMITH and CRAVEN, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Savepex Sales Co., Inc., an Illinois Corporation, Plaintiff-Appellant, v. M. S. Kaplan Company, an Illinois Corporation, Defendant-Appellee.
    Gen. No. 52,460.
    First District, Third Division.
    December 19, 1968.
    Weinstein, Myer and New, of Chicago (Arthur Berlin, of counsel), for appellant.
    Blanksten and Lansing, of Chicago (Bernard M. Kaplan, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an action for the price of goods sold and delivered by the plaintiff to the defendant. Summary judgment was entered in favor of the defendant on the basis of the trial court’s finding that a judgment entered in a previous garnishment proceeding, in which defendant was garnishee and plaintiff was judgment debtor, is res adjudicata and a bar to plaintiff’s action. Plaintiff appeals, contending that the garnishment proceeding is not a bar to its claim in the instant action. The facts follow.

On December 30, 1963, plaintiff filed a complaint in the instant action for $13,950.55, the price of goods allegedly sold and delivered to the defendant. On June 15, 1966, the defendant made a motion supported by affidavits for summary judgment in which it alleged that a prior judgment in a garnishment proceeding was a bar to plaintiff’s action. The trial court made the following findings of fact which are not disputed on appeal.

Savepex Sales Co., Inc. (Savepex), plaintiff in the instant action, was a judgment debtor in the sum of $27,-260.64 to W. E. Gould and Company (Gould). Gould filed a garnishment action in Case No. 63 S 24892 against the M. S. Kaplan Company (Kaplan), as garnishee for any money due from it to Savepex. Kaplan at first answered “No funds,” but subsequently filed an amended answer in which it admitted it owed Savepex the sum of $2,420.48. After a hearing on the amended answer, in which both Kaplan and Savepex participated, the court in that case found that Kaplan owed Savepex $2,420.48. Judgment was entered accordingly and the sum paid by Kaplan to Gould, the judgment creditor. Subsequent to that proceeding, Savepex and Kaplan transacted no further business.

On the basis of the foregoing findings of fact the court in the action now before us held that “the proceeding in garnishment in Case No. 63 S 24892 in res adjudicata as to this proceeding and therefore the defendant’s motion for summary judgment is hereby allowed, and this suit is dismissed.” Savepex now appeals from this order.

Savepex contends that the prior determination in the garnishment proceedings, that Kaplan owed it only $2,-420.48, is not res adjudicata as to the instant action in which it alleges that Kaplan actually owed it $13,950.55. Kaplan contends that section 44 of the Illinois Garnishment Act provides that its payment of the judgment in the garnishment proceeding acquits it of all demands by Savepex.

Section 44 of the Garnishment Act provides that the following rules shall apply in giving effect to judgments in garnishment proceedings:

“44. Judgment against a garnishee shall be enforceable as in other civil cases and shall acquit the garnishee of all demands by the judgment debtor for the indebtedness or other property paid, delivered or accounted for by the garnishee by virtue of the judgment in garnishment. The discharge of the garnishee is no bar to an action by the judgment debtor for the same demand.” Ill Rev Stats, c 62, §44 (1967).

Kaplan contends that by virtue of this section its payment of the judgment in the garnishment proceedings is a bar to a claim by Savepex on the same debt. Savepex contends that the last sentence of section 44 makes it clear that it is not barred from proving that Kaplan owed it more than the amount determined in the garnishment proceedings and that it is entitled to recover that amount less what Kaplan paid as a result of the judgment against it in the garnishment proceedings. The authorities support plaintiff’s contention.

The law is well settled that a judgment against a garnishee is not conclusive as to the amount of his indebtedness to the judgment debtor in the garnishment proceedings and does not constitute a bar to an action by that judgment debtor against the garnishee to recover the residue over and above the amount paid by the garnishee pursuant to the judgment in garnishment. Ippoliti v. Puglisi, 241 Ill App 494; Low v. Arnstein, 73 Ill App 215; Home Ins. Co. of New York v. Kirk for Use of Kirk, 23 Ill App 19; 166 ALR 294, 38 CJS 577. In Ippoliti, supra, the court said, at 500:

“The effect of a judgment against the garnishees for $126.83 would be to acquit him of the amount paid under the garnishment only and all other claims remained as they were prior to the garnishment. If the garnishees were indebted to Granger (the judgment debtor) in excess of $126.83, he had his remedy against them at law in a proper proceeding under formal pleadings where all rights could be determined.”

These cases were decided before section 44 of the Garnishment Act was enacted, but sections 16 and 17 of the Garnishment Act then in effect contained the same language which is now embodied in section 44 (Ill Rev Stats, c 72, §§ 16,17, repealed 1959).

Section 44 of the present Garnishment Act itself clearly indicates that while the intention of the legislature on the one hand was to protect the garnishee from double liability by providing that he be acquitted as to any amount paid by virtue of a judgment in garnishment, its intention was also to protect the judgment debtor by providing that a discharge of the garnishee will not bar an action by the judgment debtor against the garnishee for the same demand. Consequently this section has not changed the rule that the finding in a garnishment proceeding is not binding on the judgment debtor except as to the amount actually paid by the garnishee.

In the instant case Kaplan paid $2,420.48 to the judgment creditor in the garnishment proceedings and it is acquitted of its obligation to pay that portion of the amount it owed Savepex. Savepex however is not bound by the finding of the court in the garnishment proceedings that that is all Kaplan owed it and it may recover from Kaplan the total amount owed less the sum of $2,420.48 paid pursuant to the garnishment judgment.

The judgment is accordingly reversed and the cause is remanded for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

DEMPSEY, P. J. and SULLIVAN, J., concur.


author: JUSTICE STOUDER.

text:
    Allstate Insurance Company, Plaintiff-Appellee, v. Emil P. Johnson, Administrator of the Estate of Charles E. Johnson, Deceased, and Edna Johnson, Defendants-Appellants.
    Gen. No. 68-25.
    Third District.
    December 23, 1968.
    Gerard & Gerard, of Chicago, and Covey, Kehr & Covey, of Chillicothe, for appellants;
    McConnell, Kennedy, McConnell & Morris, and Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   Opinion by

JUSTICE STOUDER.

Not to be published in full.


author: JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James McDonald (Impleaded), Defendant-Appellant.
    Gen. No. 52,002.
    First District, Second Division.
    December 20, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen and James J. Doherty, Assistant Public Defenders, of counsel), for appellant;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard Trais, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


author: MR. JUSTICE ENGLISH

text:
    John Lukasik and John Wazio, Plaintiffs-Appellees, v. Frederick Hajdas, Defendant-Appellant.
    Gen. No. 50,615.
    First District, Fourth Division.
    November 27, 1968.
    Rehearing denied February 13, 1969.

      Greenberg, Ziv & McCarthy, of Skokie (Samuel Ziv, of counsel), for appellant.
    James L. Tuohy and Mack P. Manning, of Chicago, for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiffs instituted this action to recover for damage to their automobiles allegedly caused by the negligence of defendant in the operation of his automobile. After a bench trial, the court entered judgments of $500 each (the ad damnum) in favor of plaintiffs.

Defendant contends that: (1) the evidence does not support the court’s finding as to liability; (2) the trial court abused its discretion in admitting testimony with regard to damages from a witness who was not qualified as an expert; and (3) the evidence on damages does not support the amounts of the judgments.

Plaintiffs called defendant as a witness under Section 60 of the Civil Practice Act. Ill Rev Stats (1965), c 110, § 60. His was the only occurrence evidence, so his testimony in this regard stands uncontradicted. Defendant testified that on the evening of December 7, 1963, he was at a club meeting. After the meeting he went to his car, which was parked 2 or 3 car lengths behind plaintiffs’ cars. All three cars were facing west on 48th Street. Lukasik’s car was about 15 feet from the corner of Wood Street, and Wazio’s car was behind it.

It was 8:20 p. m. when defendant left the meeting and pulled his car out of its parking space, reaching a speed of about 10 miles per hour. Because it was raining, his windshield wipers were on. Defendant was headed west on 48th Street near the corner when a woman, driving north on Wood Street, made a wide right turn to go east on 48th Street. Her “highway lights” blinded him. Defendant turned to the right to avoid a head-on collision and, in so doing, hit plaintiffs’ cars. He struck the front of Wazio’s car and the rear of Lukasik’s. The woman’s car hit defendant’s car in the rear fender when his car was “on an angle.” She was driving a Chevrolet, but he didn’t get the license number, and he never saw her again.

Wazio’s car (a 1957 Chevrolet) was pushed up against a tree, and both sides were damaged. The rear parts of Lukasik’s car (also a 1957 Chevrolet) were also damaged.

Defendant knew plaintiffs. After the collision he went back into the meeting hall, told plaintiffs what had happened, and called the police. Defendant was given tickets for negligent driving and for driving too fast for conditions. The policeman (who had not seen the accident) told him that he had also hit a car on the other side of the street, but the witness flatly denied this and testified that other people said it had been damaged previously. (The physical facts indicate a high probability that defendant could not have hit cars on both sides of the street within the short distance of westward movement involved — approximately fifty feet.) Defendant pleaded guilty and paid the fine.

Both plaintiffs testified that they had not seen the collision, but that defendant had come into the club and told them about turning into their cars in order to avoid the woman driver.

As stated in numerous cases, “it must be conceded that there is a burden upon the plaintiff in any case charging negligence, to prove the negligence of the defendant by the greater weight or preponderance of the evidence. The mere happening of an accident does not of itself raise any presumption of negligence on the part of a defendant.” Brown v. Boyles, 27 Ill App2d 114, 124, 169 NE2d 273.

Requiring no citation of authority is the proposition that negligence consists in a failure to exercise the standard of care of a reasonably prudent person under the circumstances of the case. Applying that definition to the evidence here, we can find no proof that defendant acted negligently. There being no contradictory testimony, we must accept the fact that defendant was faced with the alternative of risking life and limb in a head-on collision, or, in its avoidance, causing the property damage which resulted. By making the instantaneous decision which he did, we believe that he observed the standard of ordinary care. Moir v. Hart, 189 Ill App 566. In support of their contention to the contrary, plaintiffs cite Pearlman v. W. O. King Lumber Co., 302 Ill App 190, 23 NE2d 826, and Krump v. Highlander Ice Cream Co., 30 Ill App2d 103, 173 NE2d 822. We do not consider these cases to be in point.

In view of the conclusion which we have reached on the question of liability, we will not recount the testimony on the subject of damages. Here, too, there was a failure of proof on the part of plaintiffs. See Lucas v. Bowman Dairy Co., 50 Ill App2d 413, 200 NE2d 374. Further, it appears that the trial court, in entering judgment for exactly $500 to cover the loss on each car, made no effort to ascertain the proper amount of damages.

The judgments of the Circuit Court are reversed, with judgments here in favor of defendant.

Reversed, with judgment for defendant.

MCCORMICK, P. J. and DRUCKER, J., concur.

       At no fewer than eleven places in the record, defendant described the right turn made by the woman driver. In plaintiffs’ brief, much is sought to be made of the fact that at four other places in the record defendant described it as a left turn, but considering one of these statements in context, it actually describes a right turn. We attribute this only to a matter of confusion, especially since only a right turn would have been consistent with the directions, the characteristic of a “wide” turn to place her in defendant’s path, the other physical facts, etc., which he did describe consistently throughout his testimony. Furthermore, it was noted in the record that all three of the parties were unfamiliar with the English language.

       While testimony of defendant’s having pleaded guilty in traffic court was not objected to and was admissible, it constituted proper evidence in this case, not with any conelusiveness on the issue of negligence, but only as an admission. Galvan v. Torres, 8 111 App2d 227, 232-233, 131 NE2d 367. Having no greater authority than other admissions, it did not act as an estoppel, and was properly subject to explanation by defendant, after which it was to be considered by the trier of fact along with all the other evidence in the ease. Gould v. Country Mut. Cas. Co., 37 111 App2d 265, 281, 185 NE2d 603; 46 Chicago Bar Record 150 (1964).
      In the case at bar, defendant testified that he was given a traffic ticket to appear in court at 5:30; that he worked for a window washing company; and that his hours of work were 5:00 to 10:00. An objection was thereupon sustained and defendant was not permitted to testify further on this point. His attorney made an offer of proof which would show that defendant had decided to pay the fine so that he might be able to get to work on time, rather than wait for a hearing by the judge. The offer was erroneously refused. McManus v. Feist, 76 Ill App2d 99, 108-109, 221 NE2d 418. See also Young v. Copple, 52 Ill App 547, 548-549.


author: CULBERTSON, J.

text:
    Gerald Eugene Geiger, Sr., Administrator of the Estate of Gerald Eugene Geiger, Jr., Deceased, Plaintiff-Appellant, v. William F. Fisher and Myrtle S. Fisher, Defendants-Appellees.
    Gen, No. 67-78.
    Third District.
    December 10, 1968.

      Berry & O’Conor, and Wolslegel & Armstrong, of Ottawa, for appellant.
    William Zwanzig, of Ottawa, for appellees.
   CULBERTSON, J.

Gerald E. Geiger, Sr., as administrator of the estate of Gerald E. Geiger, Jr., deceased, here appeals from a judgment of the Circuit Court of LaSalle County which, on motion of defendants William F. and Myrtle S. Fisher, dismissed with prejudice a complaint seeking recovery for wrongful death. It is the contention of plaintiff that Count I of the complaint properly states a cause of action against defendants for ordinary negligence, and that Count II adequately states a cause of action based upon the so-called “attractive nuisance” doctrine.

The action had its genesis when plaintiff’s decedent, a four-year-old boy, drowned in the Fox River at a point where the river adjoins the rear of a residence property owned by defendants in the city of Ottawa. At the time, the premises were leased to and occupied by plaintiff’s brother, an uncle of the decedent. Count I of the complaint alleges, in substance, that the lessee’s children and the decedent regularly played on the leased premises; that there was a steep drop-off down and into the Fox River at the rear of the premises; that no fence, barricade or other protective device had been erected across the rear of the premises, although the lessee had repeatedly requested defendants to do so; that the condition of the premises was patently dangerous and unsafe for children of tender years, including decedent; that the slightness of the cost of erecting a fence or barrier as compared to the risk to minor children playing on the premises imposed a duty on defendants to erect a fence; and that by virtue of defendants’ failure to comply with such duty, plaintiff’s decedent obtained access to the river bank, slipped and fell into the river and was drowned. Where appropriate, defendants’ knowledge of the presence of children and of the conditions existing is also alleged.

Count II repeats much of the foregoing, and sets forth additional allegations to support a charge that the condition of the premises owned by defendants was such that an attractive nuisance existed.

As support for his position that Count I sufficiently alleges an ordinary negligence action, plaintiff places principal reliance on Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836. In that case an 11-year-old boy, a trespasser on the premises, was injured when a pile of lumber upon which he was playing toppled over, and suit was brought against a construction company erecting a house on the premises and a lumber company which had stacked the pile of lumber. The defendants were charged with negligence in permitting the pile of lumber to remain in an unsafe condition without adequate support; in failing to warn plaintiff of the danger of coming close to the pile; and in failing to take reasonable precautions to guard the premises in order to prevent children from coming into contact with the pile of lumber. Further, the defendants were charged with knowledge that the pile of lumber attracted children to the premises; and it was alleged that notwithstanding such knowledge, they failed to take reasonable precautionary measures designed to correct the allegedly dangerous condition of the premises. In holding that the question of the liability of defendants under such circumstances had been properly submitted to the jury, the Supreme Court observed at page 625 of 5 Ill2d:

“It is also established that infants, as a general rule, have no greater rights to go upon the land of others than adults, and that their minority of itself imposes no duty upon the occupier of land to expect them or prepare for their safety. (Burns v. City of Chicago, 338 Ill 89; McDermott v. Burke, 256 Ill 401.) It is recognized, however, that an exception exists where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense of inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. (Wagner v. Kepler, 411 Ill 368.) The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child.”

Also relied upon by plaintiff is the recognized principle that where an owner leases property with actual or constructive notice of a dangerous condition on the leased premises, the owner, notwithstanding the lease, is liable to strangers to the same extent as if he were in control or possession of the property. Wagner v. Kepler, 411 Ill 368, 371-372, 104 NE2d 231, and cases there cited.

Plaintiff argues that all of the elements of the exception to the general rule set forth in Kahn are adequately pleaded in Count I, and urges that it was error for such count to be dismissed. But while there may be superficial similarities in the two cases, it is our opinion that Kahn cannot control in this case. Initially, it is to be observed that the “dangerous agency” alleged to have existed upon the premises of the defendants in this case is a steep river bank, wholly unchanged from its natural state. A great majority of jurisdictions recognize that embankments or natural waters such as lakes, streams and ponds are not in themselves dangerous agencies, (e. g., Villani v. Wilmington Housing Authority, 9 Terry 450, 106 A2d 211 (Del); Anderson v. Valley Feed Yards, Inc., 175 Neb 719, 123 NW2d 839, 843; Mellas v. Lowdermilk, 58 NM 363, 271 P2d 399; People v. Joseph, 11 Misc2d 219, 172 NYS2d 463, 472-73; McGuire v. Carey, 366 Pa 627, 79 A2d 236) a view which was apparently embraced in Mindeman v. Sanitary Dist. of Chicago, 317 Ill 529, at 533, 148 NE 304, when the court said: “. . . courts seem to be of one mind in holding that a canal, a pond, or other open body of water on private property, is not of itself an attractive nuisance, as that term is used in describing an instrumentality which will render the owner liable for injuries to a child attracted to and injured by it.” (See also: Zorn v. Bellrose, 22 Ill App2d 331, 160 NE2d 685.) Again, this view was reasserted in Adams v. Brookwood Country Club, 16 Ill App2d 263, at 271-273, where the court concluded that Kahn was not intended to overrule earlier decisions of our Supreme Court holding that liability cannot be predicated upon injury or death occasioned by a body of water where, as here, it is an ordinary, natural watercourse unchanged by the abutting owner, and stated: “To require riparian owners along all the rivers and creeks flowing in and adjacent to Illinois to construct boy-proof fences or to employ guards to protect children and restrain them from coming upon their lands adjacent to such streams would impose upon such owners no slight expense, but a most oppressive and unbearable burden.”

The rationale of the foregoing decisions, we believe, requires us to hold that Count I has not alleged the existence of a “dangerous agency,” as that phrase is contemplated in Kahn, and that defendants, by failing to erect a fence or barricade, violated no duty owed to plaintiff’s decedent. It follows that the trial court was correct in dismissing Count I of the complaint.

What has been said disposes of all questions relating to the sufficiency of Count II of the complaint, wherein liability is sought to be predicated upon the “attractive nuisance” doctrine. As manifested in the Kahn, Zorn and Adams decisions heretofore cited, the only proper basis for liability in “attractive nuisance” cases dealing with injuries to children are the customary rules of ordinary negligence cases, and the element of attraction is significant only insofar as it bears upon the foreseeability of harm to children. Plaintiff having failed to state a cause of action against defendants predicated upon negligence, the additional language of Count II alluding to the existence of an “attractive nuisance” is of no moment.

The judgment of the circuit court of LaSalle County is affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Clark, Defendant-Appellant.
    Gen. No. 67-88.
    Third District.
    December 10, 1968.
    Rehearing denied January 2, 1969.

      Donald A. Henss, of Moline, for appellant.
    Richard Stengel, State’s Attorney of Rock Island County, of Rock Island, for appellee.
   CULBERTSON, J.

A jury in the Circuit Court of Rock Island County found the defendant, James Clark, guilty of the crime of forgery, and he was thereafter sentenced to the penitentiary for a term of not less than two nor more than ten years. On this appeal he contends that he is entitled to discharge because he was not tried within the 120-day period fixed by law, that he was not proved guilty beyond a reasonable doubt, and that various errors deprived him of a fair trial.

On January 14, 1967, defendant and two companions drove from Peoria to Rock Island and visited a number of stores in the latter city where they either cashed, or attempted to cash, several checks. The manager of a store who had refused to cash a check became suspicious and informed the police, to whom he evidently gave a description of the car in which the trio were riding. Soon after, a patrolman stopped the vehicle and arrested its occupants, including defendant. The latter was not tried in Rock Island County until July 13, 1967, some 180 days later, and it is undisputed that he was continuously in the custody of either Peoria or Rock Island County authorities during that period.

The sequence of the significant events occurring between the dates of arrest and trial was as follows: (1) On January 15, 1967, before any formal action had been taken or completed against defendant, the Rock Island Police Department turned defendant over to the sheriff of Peoria County, where defendant was under indictment for an armed robbery, but requested that he be held for prosecution in Rock Island County; (2) on February 17, during the course of the next regular session of the grand jury, an indictment was returned to the circuit court of Rock Island County charging defendant with the offense of forgery, in that he had knowingly presented to Geifman Food Store, Inc., a check for $97.20 capable of defrauding; a bench warrant issued pursuant to the indictment but was not served on defendant; (3) sometime prior to March 27 the State’s Attorney learned in a telephone conversation with the Peoria County sheriff that defendant was to be tried in the latter county on March 27; (4) on March 27 the State’s Attorney sent a copy of the bench warrant to the Peoria sheriff intending it as a detainer warrant; (5) on April 19 defendant was returned to Rock Island County; (6) on April 20 he was brought before the circuit court for arraignment, at which time the public defender was appointed as counsel and defendant ordered to plead by May 1; (7) on April 25, the 101st day after his arrest by the Rock Island police, defendant filed a motion for a list of witnesses, confessions, etc. and an order was entered giving the State’s Attorney 10 days to comply; (8) on the same date, April 25, defendant filed, but did not call up for hearing, a second motion for a bill of particulars; (9) on May 23, the 129th day after his arrest, defendant filed a motion for discharge on the ground that he had not been tried within 120 days from the date he was taken into custody, which motion was denied on June 16; (10) on motion of defendant, an order was entered June 26 giving him leave to withdraw his motion for a bill of particulars; and (11) on July 18, 1967, immediately prior to the start of his trial, defendant was arraigned and entered a plea of not guilty.

Under section 9 of article II of the Illinois Constitution an accused is accorded the right to a speedy trial. Implementing this constitutional mandate is section 103-5 (a) of article 103 of the Code of Criminal Procedure of 1963 (111 Rev Stats 1965, c 38, par 103-5(a)), which provides:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.”

This section, as noted by the committee which drafted it, “Codifies Ill Rev Stats 1961, c 38, § 748, and the Illinois decisions construing it.” (See Smith-Hurd, Ill Anno Stats, c 38, par 103-5, p 17; emphasis added.) We are here confronted with two matters of construction. First, the intricate question of when the statutory period of 120 days started to run; and second, a determination of whether defendant’s motion for a bill of particulars was a delay occasioned by defendant which tolled the running of the 120-day period.

Based upon decisions later to be discussed, it is the contention of defendant that the period commenced on January 14, 1967, the date he was arrested by the Rock Island police. The People, on the other hand, argue that the 120 days started to run on March 27, 1967, the date the copy of the bench warrant was forwarded to the Peoria authorities. And while we have found no decision construing and applying the statute, or its antecedent, under precisely similar facts, it is our belief that People v. Jones, 33 Ill2d 357, 211 NE2d 261, and People v. Stillwagon, 373 Ill 211, 25 NE2d 795, chart the course we must follow.

In the Jones case, which was a review of a conviction of armed robbery and assault with intent to kill, the defendants were arrested on June 3, 1961, in connection with a number of crimes totally unconnected with the robbery and assault. On June 10, 1961, the victim of the robbery and assault saw a picture of defendants in a newspaper, came to the police station and signed complaints against them. Subsequently, on June 23,1961, defendants were indicted for unrelated crimes and these causes were continued from time to time on application of defendants until February 3, 1962, when they were adjudged guilty of murder. While a motion for a new trial was pending in the murder case, an indictment was returned on February 9, 1962, charging defendants with the armed robbery and assault. Thereafter, on February 28, 1962, defendants filed a motion for discharge in respect to the latter indictment on the ground that they had not been tried within 4 months from the date of “commitment,” as the statute then provided. (Ill Rev Stats 1961, c 38, par 748.) The motion was denied and, on appeal, the Supreme Court affirmed. In so doing, the court rejected the contention of defendants that their commitment must be regarded as having commenced either on June 3, 1961, the date of their arrest, or on June 10, 1961, the date of the complaints giving rise to the indictment, and held that it was not until the armed robbery and assault indictment was returned on February 9, 1962, that defendants could be considered as having been “committed” for such offenses. Admittedly the present statute speaks of “custody” rather than “commitment,” but we fail to see how this change provokes a different construction. The principle we derive from Jones is that the statutory period does not start to run until an accused is confined for the crime for which discharge is sought.

People v. Stillwagon, 373 Ill 211, 25 NE2d 795, concerned an accused who was involved in a holdup in Lake County on August 18, 1936. The proceeds of the robbery were transported into Cook County, whereupon defendant was arrested, and held in custody until November 18, 1936. Although indicted by the Cook County grand jury for larceny, the indictment was stricken with leave to reinstate on November 18, whereupon the defendant was surrendered to the sheriff of Lake County who placed him in the jail of Lake County where he remained until February 8, 1937. The defendant was tried on a charge of robbery. The criminal court of Cook County had jurisdiction to try defendant on the charge of larceny under the statute which provides that where property is stolen in one county of the State and carried into another, the jurisdiction shall be in any county into or through which the property may have passed, or where it may be found. The defendant in that case contended that the four months’ period should have started from the first day of his confinement in the Cook County jail, but the court holding adversely said, at page 214: “The only court competent to try defendant for robbery was the court having jurisdiction of the offense, — namely, the circuit court of Lake county. He had been neither indicted nor held in custody in Cook county on the charge of robbery. Since the one court having jurisdiction of the crime of robbery tried defendant within four months of the date of his commitment on this charge, it follows, necessarily, that his right to a speedy trial was not invaded and his motion for discharge properly denied.”

When the logic and rationale of the Jones and Stillwagon decisions are applied in the instant case, it is our opinion that defendant cannot be considered to have been in custody for the crime for which he seeks discharge, viz., the issuance of a fraudulent check to Geifman Food Store, Inc., until April 19,1967, the date he was returned to the custody of Rock Island officials from Peoria County; that the 120-day period commenced to run from such date; and that defendant’s trial on June 13,1967, was therefore within the statutory period.

As previously noted, defendant was not arrested by the Rock Island police on January 14 for any particular charge, and when he was turned over to the Peoria authorities on January 15 no formal charges had been made against him in Rock Island county. In particular, he had not not been served with a complaint or warrant in respect to the crime of forgery here involved. It is true that the Rock Island police placed a “hold” or detainer request with the Peoria sheriff, but so far as the record shows this was an oral request which was never acknowledged. What is more, it cannot be said that the request related to the forgery involved in the instant case, inasmuch as he was not indicted for such crime until a month later. Under these circumstances, we believe it emerges clearly that from January 15 to February 17 (the date of the forgery indictment), at least, defendant was in custody for the unrelated crime of armed robbery for which he was being held in Peoria county. Had defendant been confined in the Rock Island county jail when the forgery indictment was returned, we would be compelled under Jones to hold that the statutory period started to run on such date. But since defendant was then in custody in Peoria County for the armed robbery charge, we believe the situation requires us to hold that the statutory period cannot be considered to have started to run until one of two later dates, viz., either March 27, the date upon which a copy of the Rock Island warrant was delivered to the Peoria sheriff, or April 19, the date defendant was returned to Rock Island and confined because of the forgery charge here involved.

Adoption of either of these alternative dates would place defendant’s trial within the statutory period, but in our opinion a proper construction of section 103-5 (a) causes April 19 to be the controlling date. Where, as here, a defendant is in custody awaiting trial in one county and there is a charge pending against him in another county, we believe he cannot be deemed to be in custody for the latter offense until such time as the proceedings against him in the first county are terminated and he is then either returned to, or held in custody for, the second county. Any other construction would embarrass and harass the effective administration of criminal justice and would tend to favor an accused who is in custody of one county for a crime, but has formal charges pending against him, for which hold or detainer orders have been placed in several counties. Such an absurd result could not have been intended by the legislature when section 103-5 (a) was enacted. Further, it would seem that if one county is to be allowed 120 days in which to prosecute an accused who is in custody for an alleged offense, another county should have an equal amount of time, notwithstanding that its charge against the same accused has been concurrently pending while the case in the first county was being disposed of. Cf. subparagraph (e) of section 103-5, Ill Rev Stats 1965, c 38, par 103-5 (e).

The cases upon which defendant relies to support his claim that the 120-day period started to run on January 14, 1967, are distinguishable when their facts are noted. In People v. Fosdick, 36 Ill2d 524, 224 NE2d 242, a criminal complaint was filed in the Circuit Court of Champaign County on January 7, 1964, charging the accused with rape. Subsequent to the filing of the complaint defendant was arrested in DeWitt County on other charges and, on February 16, 1964, he escaped from the DeWitt County authorities. Thereafter, he was apprehended on March 11,1964, by F. B. I. agents under a Federal fugitive warrant, and was lodged in the Champaign County jail as the closest Federally approved jail. On the following day, March 12, he was arrested on the Champaign County warrant, taken before a magistrate, and served with a copy of the rape complaint. A dispute over the custody of the accused arose and, as a result, Champaign County voluntarily dismissed its charges so defendant could be returned for trial in DeWitt County, then immediately filed new but identical charges against defendant. Under these circumstances, the Supreme Court held that the accused must be deemed to have been in the custody of Champaign County for the rape on March 12, 1964, the date he was served with a warrant, and that the voluntary dismissal by the Champaign County authorities could not evade the provisions of the 120-day rule. Comparable circumstances did not exist or occur in the present case. Rather, defendant was released to Peoria County at a time when no formal charges of any nature had been made against him in Rock Island County.

In People v. Gray, 83 Ill App2d 262, 227 NE2d 326, an accused was incarcerated in the penitentiary at Menard when, on September 7, 1965, a complaint charging him with armed robbery was filed in Morgan County. A warrant issued on the same date but was not served. On October 26, 1965, it was learned that the accused was in Menard, and Morgan County officials placed a “detainer warrant” with the warden of the penitentiary. However, no further affirmative action was taken until May 25, 1966, when the accused was indicted for the offense charged in the complaint. In that case, unlike the situation here, the State’s Attorney of Morgan County could have prosecuted the case with vigor at any time after learning the accused was confined in the penitentiary, a distinction which also existed in other cases advanced by defendant. (People v. Bryarly, 23 Ill2d 313, 178 NE2d 326; People v. Patheal, 27 Ill2d 269, 189 NE2d 309; People v. Swartz, 21 Ill2d 277, 171 NE2d 784.) Here, the State’s Attorney knew that defendant was awaiting trial in Peoria and the authorities of the latter county, even if a demand had been made, would not have been required to postpone and delay the Peoria trial by returning defendant to Rock Island County.

Apart from our conclusion that the 120-day period did not start to run until April 19, 1967, it is our further opinion that delay in the trial was “occasioned by the defendant” when, on April 25, 1967, he filed a motion for a bill of particulars, and thus caused the statutory period to start anew. (Cf. People v. Hamby, 27 Ill2d 493, 190 NE2d 289; People v. DeStefano, 85 Ill App2d 274, 229 NE2d 325; People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323, affd 34 Ill2d 179, 214 NE2d 765.) The motion alleged that defendant was “unable to prepare his defense properly” unless the People were required to furnish him with certain specifically alleged details. Yet, defendant did not call the motion up for hearing, but withdrew it and proceeded to trial after his motion for discharge had been unsuccessful. Under the circumstances, it is our opinion that the motion must be treated as dilatory in character and as creating a delay in trial.

No evidence was presented for the defense, and facts necessary to a consideration of defendant’s claim that he was not proved guilty beyond a reasonable doubt show that defendant and his companions left Peoria having in their possession approximately 30 blank checks which were imprinted with the name of La Star Wig Co., Inc., and its address, and which indicated the drawee bank to be the South Side Trust & Savings Bank of Peoria. One of the trio, who appeared as a witness for the People, testified that they had first driven to several places to procure “phony” identification, and had then proceeded to Eock Island to cash some checks. The check presented by defendant at the Geifman Food Store was made out to “Glen D. Holland” and was purported to have been signed on behalf of the La Star Wig Company by “Ida Lupina.” A cashier in the store identified defendant as the person for whom she had cashed the check, and testified that he had endorsed the name “Glen D. Holland” in her presence and had shown her a driver’s license to prove he was Holland. The check was never sent through to the bank for collection, but was turned over to the Eock Island police.

Janice Miller, bookkeeping manager of the Peoria bank, appeared as a witness for the prosecution and brought with her the signature card of the La Star Company which showed that the account had been closed July 20, 1965, and that “Ida Lupina” had not been an authorized signator to issue checks. Because the witness testified on cross-examination that it was possible for an account to be opened without her knowledge, defendant rationalizes that it is possible there may have been another La Star account and contends that the record does not “truly show” that Geifman’s would have been defrauded had the check been put through for collection. We find no merit to this contention. The witness testified that she had charge of all signature cards at the bank, and because of this would have known of a later La Star account if one had existed. Furthermore, proof in forgery eases must often be by circumstantial evidence, (People v. Dauphin, 53 Ill App2d 433, 203 NE2d 166; People v. Church, 366 Ill 149, 7 NE2d 894), and the total circumstances here establish beyond a reasonable doubt that defendant knowingly, and with intent to defraud, made and presented a check capable of defrauding. See: Ill Rev Stats 1965, c 38, par 17-3.

Defendant next contends that he did not receive a fair trial due to improper remarks by the State’s Attorney in his closing argument. Specifically, although no objections were registered in the trial court, it is contended that the prosecutor argued improperly when he told the jury: (1) that the State was not required to sustain an impossible burden; (2) that he represented the People and that it was his function to enforce the law; and (3) that he believed the evidence established defendant’s guilt beyond a reasonable doubt. We cannot agree that such argument was improper or that defendant was prejudiced thereby. The prosecutor was correct in his assertion that an impossible burden is not imposed upon the State in order for a conviction to be obtained, and the instructions to the jury fully outlined the extent of the prosecutor’s burden in this case. Similarly, it has been consistently held that a State’s Attorney may properly describe himself as a representative of the people and dwell upon his responsibility to enforce the law. (See: People v. Miller, 13 Ill2d 84, 148 NE2d 455; People v. Brown, 16 Ill2d 482, 158 NE2d 579; People v. Dean, 78 Ill App2d 2, 223 NE2d 175.) Finally, it is settled that it is within the bounds of legitimate argument for a prosecutor to state he believes from the evidence that an accused is guilty beyond a reasonable doubt if there is in the record a reasonable basis for such belief, (People v. Lawson, 331 Ill 380, 394, 163 NE 149; see also: People v. Williams, 26 Ill2d 190, 186 NE2d 353; People v. Diggs, 81 Ill App2d 361, 225 NE2d 665), and there was, as we have indicated, more than a reasonable basis in this case.

The trial court, over objections by defendant, admitted evidence concerning the other checks cashed, and attempted to be cashed, by defendant and his companions on the day of their arrest, and also gave an instruction that such evidence had been received, and could be considered, only f&r the limited purpose of determining the issues of .defendant’s identity, motive, design and knowledge. Defendant’s contention that the court erred in these respects is also without merit. Countless Illinois decisions establish that evidence of other crimes is properly admissible to prove identity, intent, knowledge, or a common scheme or plan (e. g., People v. Spaulding, 309 Ill 292, 141 NE 196; People v. Shockey, 67 Ill App2d 133, 213 NE2d 573; People v. Marks, 63 Ill App2d 384, 211 NE2d 548), and the evidence complained about was properly received to establish such elements in this case. The same decisions, People v. Spaulding, 309 Ill 292, 141 NE 196, at 303-304, in particular, require us to reject the further contention of defendant that in order for evidence of other offenses to be admissible, it must first be proved beyond a reasonable doubt that an accused committed such offenses. And since we have held that the evidence of other crimes was proper, it logically follows that the instruction limiting its purpose was also proper. Indeed, it would have been error for the court not to have given the instruction. People v. Hagenow, 236 Ill 514, 86 NE 370; 15 ILP, Criminal Law, § 719.

The judgment of the circuit court of Rock Island County is affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.