author: MORAN, J.

text:
    Weiland Tool & Manufacturing Company, Counterdefendant-Appellant, v. Emerson C. Whitney, Counterplaintiff-Appellee. Hexarmour Company, an Illinois Corporation, and Emerson C. Whitney, Counterplaintiffs-Appellees and Cross-Appellants, v. Weiland Tool & Manufacturing Company, an Illinois Corporation, Counterdefendant-Appellant and Cross-Appellee.
    Gem. No. 51,347.
    First District.
    October 7, 1968.

      Mortimer, Nolan, O’Malley & Dunne, of Chicago (Robert J. Nolan and Gerald M. Chapman, of counsel), for appellant.
    Emerson C. Whitney, of Chicago (John D. Dempsey, of counsel), for appellees.
   MORAN, J.

The present appeal, arising from a judgment entered in the Circuit Court of Cook County on a trial of the counterclaim raised by Hexarmour Company and Emerson C. Whitney to the original complaint of Weiland Tool & Manufacturing Company, represents the culmination of a twelve-year history of litigation. Plaintiff and counter-defendant will be referred to herein as “Weiland,” and defendants and counterplaintiffs will be referred to collectively as “Whitney.”

Action in this matter was initiated in August of 1956 by Weiland to foreclose a common-law lien upon certain machinery delivered to Weiland by Whitney pursuant to a contract between them and to recover damages from Whitney for alleged breach of the contract, according to which Whitney was to furnish machinery which, after installation and certain adjustment (this term later produced a plethora of problems), would be suitable for the production of a product known as “Hexarmour,” supply the steel for the production thereof, pay certain costs in connection with delivering the machinery to Weiland’s plant, exercise his best efforts to merchandise and sell Hexarmour, and pay Weiland twenty-two cents for every foot of Hexarmour sold.

Whitney filed an answer and a counterclaim in which he asserted that Weiland was liable to him for damages because of fraud and deceit in inducing him to make the contract, breach of the contract, and conversion of Whitney’s property. Weiland answered the counterclaim and the matter was referred to the Master-in-Chancery.

After the closing of proofs, the Master rendered his report finding for Weiland and against Whitney on the contract and assessed the reimbursements to which Weiland was entitled. The trial court subsequently entered a decree determining the amount due to Weiland from Whitney, directing its payment, or in the alternative a sale of the machinery, dies and steel in Weiland’s possession at a public auction for the purposes of paying the sum so found to be due, and denying relief on Whitney’s counterclaim.

Whitney appealed to this court and Weiland cross-appealed, asserting error in denial of his claim for loss of profits due to business interruption. This court reversed the decree of the trial court, holding that there was a complete written contract between the parties, contained in Whitney’s letter of July 9, 1954, and the two letters of July 14, 1954; that this contract required Weiland to assume the expense of putting the machinery furnished by Whitney into production and to manufacture Hexarmour, and that Weiland breached the contract by demanding that Whitney pay for expenses which Weiland was obliged to pay as well as Weiland’s failure to make the product as specified. Weiland Tool & Mfg. Co. v. Whitney, 40 Ill App2d 70, 188 NE2d 756. The cause was then remanded to the trial court for disposal of Whitney’s counterclaim on the issue of damages in accordance with the views expressed in our opinion.

After a denial of a petition for rehearing, Weiland filed a timely petition for leave to appeal to the Supreme Court of Illinois. Whitney filed a motion to dismiss Weiland’s petition on the ground that the judgment was not final as required by section 75(2) (c) of the Illinois Civil Practice Act governing such petitions. The Supreme Court granted Whitney’s motion.

Upon remand an order was entered dismissing Wei-land’s complaint for want of equity, pursuant to the decision of this court, and retaining jurisdiction for disposition of the counterclaim. Issue was joined in the second amended counterclaim, and the cause was transferred to the Law Division of the Circuit Court of Cook County, Illinois. The second amended counterclaim combined tort actions for trover and conversion, fraud and deceit, extortion, duress, slander of title and larceny by bailee with a contract action for loss of profit and the recovery of expenses allegedly incurred in the performance of Whitney’s obligations under the contract. An answer and reply thereto were duly filed.

After hearing evidence, the trial court, sitting without a jury, found that Whitney was entitled to recover on his counterclaim only for conversion of the machinery and the steel involved. The trial court found that the conversion took place on August 23, 1956, and that damages for the conversion of all the equipment, other than the steel should be fixed “quite arbitrarily,” at $2,000, and, for the conversion of the steel, at its 1953 purchase price of $17,955. Predicated thereon, the court entered judgment in favor of Whitney and against Weiland in the amount of $19,955 and costs.

Thereupon, Weiland appealed from the decree dismissing the complaint for want of equity and from the judgment entered on the counterclaim, and Whitney cross-appealed. The issues on this appeal involve the propriety of this court’s opinion on the prior appeal, the propriety, as a matter of law, of the finding that the counter-defendant, who had retained possession of the machinery and steel claimed to have been converted under the belief that he had a valid lien thereon, was guilty of conversion, and the proper amount of damages; and a determination of the alleged legal errors related to the trial of Whitney’s counterclaim actions. No questions are raised on the pleadings.

Further details of the contract between the parties and a closer presentation of the significant facts involved in this case are contained in the record of the prior appeal, 40 Ill App2d 70, 188 NE2d 756 (1963), to which we shall make liberal reference throughout this opinion.

Turning first to the dismissal of Weiland’s complaint in the trial court for want of equity, appellant invokes this court’s attention to matters of liability which were first raised and determined by us on the former appeal. Recognizing that the doctrine of the “law of the case” is applicable in Illinois, Weiland argues that this court was palpably in error as to certain matters of substantive law on the former appeal, and we should now take exception to the doctrine by a reexamination of the issues.

When there is an identity of particular issues, facts and evidence from the first to the second appeal, the decision of the former appeal is binding upon us on a second appeal, regardless of whether our former decision is right or wrong. Gillum v. Central Illinois Public Service Co., 250 Ill App 617.

Appellant relies heavily on two recent Illinois Appellate Court cases for the proposition that where a decision of a reviewing court is palpably erroneous, the reviewing court may disregard its opinion on the prior appeal and redetermine the issue. Sjostrom v. Sproule, 49 Ill App2d 451, 200 NE2d 19; Proesel v. Myers Pub. Co., 48 Ill App2d 402, 199 NE2d 73. However, an examination of the facts in each of these cases reveals that these exceptions to the doctrine of the law of the case followed upon a contrary ruling by our Supreme Court on the precise issues of law which the appellate courts had based their former decisions. Such an exception to the rule of the law of the case is clearly desirable. Subsequent correction of the decision in a former appeal by an appellate court after contrary authority from a higher court whose rulings of law are controlling makes appeal to the Supreme Court unnecessary and actually brings an end to litigation.

Illinois recognizes a second exception to the doctrine of the law of the case. In Presbyterian Distribution Service v. Chicago Nat. Bank, 36 Ill App2d 1, 183 NE2d 525, the court examined the posture of the law on this question and uncovered a line of cases permitting correction of a former holding by an appellate court where a higher court has announced contrary law in the interval between appeals, and another exception where the prior decision is found to be palpably erroneous. 36 Ill App2d 1 at 3. However, in applying this latter exception, the court expressly limited departure from the law of the case to the situation where the case was remanded by the appellate court for a new trial of all the issues. There the court would be reaching a different decision upon an appeal from a judgment entered upon a second trial. Such facts are not present in the case before us. Here the second trial was expressly limited to a consideration of the counterclaim.

After a careful examination of the record and consideration of the briefs and arguments, if this division of the Appellate Court were, in the first instance, deciding the appeal, our holding would be in accordance with the views expressed in the dissenting opinion filed in the prior appeal. However, in view of the cases above cited, we cannot reverse the prior ruling.

Affirmance of this judgment on the ground that the former appellate decision has become the law of the case does not bind the Supreme Court. Our law of the case is not theirs.

Whitney alleges several instances where the trial court erred in disposing of his counterclaim by not following the views expressed by this court on the first appeal and by permitting Weiland to plead and testify contrary to matters made res judicata.

First, Whitney claims the trial court failed to follow the Appellate Court’s holding that as a matter of law Weiland breached the contract, but a thorough examination of the court record reveals the opposite. Investigation and testimony presented in the lower court was directed to the issue of damages, and the court prefaced its findings with language clearly showing that the contract was breached by Weiland: “Insofar as the contract action is concerned (Whitney’s action for alleged breach of contract by Weiland) the damages recoverable must necessarily be caused by the breach.”

Second, Whitney alleges that the trial court should award him lost profits resulting from Weiland’s failure to fulfill an order for 500 pieces of “Hexsteel” procured by Whitney from Gulf Oil Corporation on October 20,1956. It is apparent that the original contract between Whitney and Weiland had been terminated on January 9, 1956, so that Whitney’s procurement of this order constituted an aggravation of damages. We therefore agree with the lower court that Whitney’s action in this instance was in derogation of the principle that an aggrieved party in any action must mitigate his damages. In any event, he may not aggravate them. Kelly v. Chicago Park Dist., 409 Ill 91, 98 NE2d 738; Salaban v. East St. Louis & Interurban Water Co., 284 Ill App 358,1 NE2d 731. As to this claim, therefore, damages will not be allowed.

Third, Whitney argues that the lower court ignored our finding that the first breach (and thus Weiland’s first conversion) took place when Weiland made his unjustified demand that Whitney assume the expenses of putting the machinery into production (which Whitney claims occurred on August 16, 1954) and refused then to return Whitney’s property without first being paid by Whitney a sum in excess of $5,000.

This court did find that Weiland breached the contract by demanding that Whitney assume the expenses of putting the Hexarmour production line machinery into operational capacity. No determination was made, however, as to the specific date of this breach. But assuming for the sake of argument that August 16, 1954, was the first instance of Weiland’s breach, it is incorrect to conclude that a conversion ensued from Weiland’s breach at that time. “The action of trover cannot rest upon a mere breach of contract.” Race v. Chandler, 15 Ill App 532, 540.

The gist of the action of conversion in Illinois as in most states is the proof of wrongful deprivation of property to one entitled to possession. First Finance Co. v. Ross, 75 Ill App2d 403, 221 NE2d 37; Donn v. Auto Dealers Inv. Co., 318 Ill App 95, 47 NE2d 568. Consequently, detention of property under a good faith claim of lien for the purpose of determining who had the right of possession of the property is not, as Weiland here asserts (Stahl v. Boston & M. Railroad, 71 NH 57, 51 A 176; Bolling v. Kirby, 90 Ala 215, 7 So 914; Felcher v. McMillan, 103 Mich 494, 61 NW 791), a complete defense to an action for conversion. As the court in Bentley, Murray & Co. v. LaSalle St. Trust & Savings Bank, 197 Ill App 322, put it, “ (A)ny wrongful act which negatives or is inconsistent with the plaintiff’s right is per se a conversion. . . . The same liability attaches whether the actor was conscious of the wrong he was committing or not.” Id. at 324.

In the instant case, possession of the machinery and steel was lawfully given to Weiland under the contract and it was therefore imperative that Whitney demand return of the goods following upon Weiland’s breach of contract for a conversion to occur. Sehnert v. Koenig, 99 Ill App 513. On this issue the trial court discussed a series of negotiations up to August of 1956 between the parties whereby Weiland, not Whitney, encouraged the removal of equipment and steel from his premises. It was not until August 23, 1956, in a letter from Whitney to Weiland that a definite demand for return of appellee’s goods was made in reference to a conversation between the two parties earlier that summer. The trial court charged Weiland with conversion of Whitney’s equipment and steel as of that date and we find that determination to be consistent with the evidence.

Fourth, Whitney claims he made extensive sales efforts in an attempt to promote Hexarmour and the trial court erred in failing to award damages for loss of compensable time and other expense items.

Because of the disputes arising between the parties almost immediately after entering into the contract, counterclaimant did not spend any appreciable amount of time in carrying out his obligations under the contract. This is evidenced by the fact that shortly after the contract was entered into, Whitney sought employment at various places and actually secured other employment on January 1,1955. Under these circumstances, we do not believe there should be any award to counterclaimant for loss of compensable time.

However, Whitney is entitled to recover as damages $529.07 for carting charges of steel and machinery from Carlson’s plant to Weiland’s plant; $450 expended by Whitney for advertising, printing and stationery; and $200 paid for removal of Whitney’s property from Wei-land’s plant. The total damage award assessed against Weiland for breach of contract is, therefore, $1,179.07.

Whitney urges that interest should be assessed on the damage award. “In absence of an express agreement, interest at common law is not recoverable, and it is not recoverable except where authorized by the statute.” Sterling-Midland Coal Co. v. Great Lakes Coal & Coke Co., 266 Ill App 46, 56. Section 2 of the Interest Act, chapter 74, Ill Rev Stats 1967, provides for the allowance of interest at the rate of five percent a year “for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing . . . and on money withheld by an unreasonable and vexatious delay of payment.” Clearly this last mentioned provision is inapplicable to this case since prior to this opinion no damages were assessed against Weiland pursuant to his breach of contract. Where a sum is not due and owing, there can be no vexatious delay of payment.

Further, concerning the other language contained in section 2 of the Act, interest has been allowed on damages for breach of contract either where such damages are liquidated, or where they can be ascertained by a simple and certain computation. Norton Irpn Works v. Wilson Steel Products Co., 232 Ill App 523; Dady v. Condit, 209 Ill 488, 70 NE 1088. Neither of these circumstances exists in this case. Although the damages claimed by Whitney pursuant to Weiland’s breach were fairly well set out in his counterclaim, these were subject to proof and contradiction, and by our very disposition of the damage issue in this case it cannot be said that the damages were ascertainable by a “simple and certain computation.” We conclude that interest should not be given on the damage award.

Whitney next contends that Weiland’s refusal to release Whitney’s property to Walter Bates, who Whitney claims had agreed to buy the Hexarmour production line and the steel, constituted interference with Whitney’s contractual relations. It is not entirely clear from Whitney’s argument the exact theory of liability upon which he proceeds. Illinois recognizes tort liability for third-party interference with an existing contract as well as wrongful or malicious interference with the formation of a contract. Morehouse v. Terrill, 111 Ill App 460; Johnson v. Luhman, 330 Ill App 598, 71 NE2d 810. Whitney’s description of his claim as an interference with contractual relations apparently invokes either theory, however, he does initially assert that “in 1956 Whitney sold the Hexarmour Production Line to Walter Bates, Jr.”

An examination of this issue under the theory of third-party interference with an existing contract discloses that the elements of this tort are defendant’s knowledge of an existing contract, his inducement of one of the parties to breach that contract, and the subsequent breach by one of the parties to that contract which results in damage to the plaintiff. National Gas Appliance Corp. v. Manitowoc Co., 311 F2d 896; Magnaflux Corp. v. Foerster, 223 F Supp 552. A fortiori, the existence of a contract need be established to afford recovery under this theory.

Whitney claims that on or about June of 1956, he sold his machinery and steel located in Weiland’s plant to Walter Bates, Jr., and that Weiland interfered with the performance of this contract by his refusal to deliver the chattels upon request. However, during the cross-examination of Bates by Whitney, the witness stated: “You and I did not have an agreement on or before the 22nd day of June, 1956 that I would pay to the Hexarmour Company the sum of $41,200, to be paid at the rate of $5,200 down and the $36,000 balance to be paid at the rate of $500.00, plus interest, per month, on the balance remaining from time to time unpaid at 5% per year.” Bates then testified on redirect by Mr. Nolan that he had not made a firm offer to purchase the goods in question. Testifying as to his negotiations with Mr. Whitney, the witness said: “By the word ‘offer’ at the meeting, I understood the offer that Mr. Whitney made to me to buy it was not my offer to purchase it. In other words, it was the price at which it could be obtained. He offered to sell it to us. We did not offer to buy it. We considered it and studied it, and subsequently rejected it ... . The ultimate action we took on Mr. Whitney’s offer (was) to turn it down.”

The existence of a contract being the precondition of liability under a theory of interference with existing contracts, Whitney’s argument on this issue is not well taken. While we doubt that the law in Illinois, as Whitney urges, is that it is unnecessary to prove that the contract was enforceable by the plaintiff as a contract before a finding of liability for interference can be made, it would nevertheless be imperative that the fundamental essentials of offer and acceptance be met before liability can be predicated. See Prosser, Law of Torts, 955 (1964). We hold, therefore, that cross-appellant has failed to establish a basis of recovery for tortious interference with an existing contract.

Similarly, Whitney has failed to show that Weiland wrongfully or maliciously interfered with Whitney’s right to contract or pursue a lawful business. While liability for malicious interference may result from the intentional doing of acts without justification or excuse, since malice in this connection is used in its legal sense of an intent to do wrongful harm and injury (Meadow-moor Dairies, Inc. v. Milk Wagon Drivers’ Union of Chicago No. 753, 371 Ill 377, 21 NE2d 308, affd 312 US 287), we are not prepared to say, nor has Whitney demonstrated, that Weiland’s refusal to deliver the machinery and steel to Whitney who had no contract to sell these to Bates, was the sine qua non of Bates’ decision not to purchase the goods. In other words, Weiland’s refusal to deliver the chattels to Whitney did not interfere with Whitney’s right to contract for the sale of these goods to Bates, since only after the execution of such a contract would Whitney be obliged to tender performance, and even then it would not be necessary that Whitney have the machinery in his possession. Furthermore, Bates related in his testimony that Weiland “did not say that Whitney did not have title to the property, and Hexarmour Company did not have title to it.” We conclude that, by the weight of the evidence, Weiland committed no acts for which he was liable on a theory of malicious interference with Whitney’s contractual right.

Whitney also claims damages for slander of title. Since the evidence discloses that Weiland made no denial of Whitney’s title as to the machinery and steel to Bates, Weiland’s assertion being only that he had a “claim” on the property which Bates understood to be a claim for storage, Whitney must demonstrate that Weiland acted maliciously in asserting this claim in order to recover for slander of title. Allison v. Berry, 316 Ill App 261, 44 NE2d 929. The law in Illinois as demonstrated in the

Allison case, is that if a party has reasonable grounds to believe he had legal title or even an equitable title or claim, then assertion of this claim does not amount to slander of title. In the instant case, although this court has held that Weiland did not in fact have a valid lien on Whitney’s property, 40 Ill App2d 70, 188 NE2d 756, Whitney has not attempted to show, and we do not believe the evidence could show, that Weiland asserted his claim in bad faith and without reasonable grounds for so doing. Therefore, we find there was no recoverable claim established for slander of title.

Counterplaintiff next argues that the trial court used an incomplete and incorrect legal formula in arriving at an inadequate amount of damages for Weiland’s conversion of Whitney’s machinery, equipment and steel. He also contends that the court erred in failing to award as damages certain witness’ fees, unreimbursed stenographer’s fees and other costs, and requests that this court allow an amendment of Whitney’s counterclaim whereby the employment of additional counsel at a fee of 20% of whatever judgment is collected, be added to Whitney’s plea for damages.

With respect to the damages assessed for conversion of Whitney’s machinery, the trial court considered evidence as to the value of the Hexarmour production line and bridge decking equipment at the time it was turned over to Weiland in 1954, at the date of conversion in 1956, and then as of January 10,1964, when the property was returned to Whitney. In assessing damages of $2,000 for the depreciation in value of the returned property, which the court concedes was quite difficult to determine in view of the wide variance of testimony on the subject of valuation, the court was applying a formula which measures damages for conversion of property subsequently returned, as the depreciation in value between the date of conversion and the date of return. We find this to be a fair measure of damages. 53 Am Jur, § 114; Saccomano v. North Idaho Shingle Co., 73 Idaho 284, 252 P2d 518; Taylor v. Brewer, 94 NJL 392, 110 A 693; Martinez v. Vigil, 19 NM 306,142 P 920.

Whitney, however, contends that such a formula of recovery should include either an award for loss of use or in lieu of damages for loss of use, interest should be awarded from the date of conversion to the date of trial. Although the law recognizes an award of damages for conversion based on the reasonable value of the use of the property during the time of detention, Chicago & N. W. Ry. Co. v. Hoag, 90 Ill 339; Crossen v. Chicago & J. Elec. R. Co., 158 Ill App 42, such award is predicated on the existence and proof of substantial evidence which discloses a reasonable rental or use value of the converted property. Barrelett v. Bellgard, 71 Ill 280. The trial judge made a finding of fact that such evidence was absent from the record, and we have found no substantive basis to upset this ruling as being against the manifest weight of the evidence.

On the question of interest, the trial judge has discretion, according to the equities of the case, to award or deny interest as an element of recoverable damages. “If it does not comport with justice, interest may be disallowed.” Duncan v. Dazey, 318 Ill 500, 527, 149 NE 495; McKey v. McCoid, 298 Ill 566, 132 NE 233. We are not about to question the discretion of the trial judge in the instant case on his decision to disallow interest. Further, a claimant may recover interest as of right based on chapter 74, paragraph 2, Ill Rev Stats 1965, only where there has been an unreasonable and vexatious delay of payment. However, where there is an honest dispute as to the existence of a legal obligation or where one is conducting a reasonable defense to a claim of conversion, as here, this does not constitute unreasonable and vexatious delay that would permit recovery of interest. Cooper v. Brogni, 50 Ill App2d 70, 199 NE2d 619; Kelrick v. Koplin, 73 Ill App2d 63, 219 NE2d 758.

Weiland contends that although the court applied the correct formula for computing damages for conversion where the property is subsequently returned and accepted, that in the absence of a showing of special damages, only nominal damages may be recovered when no depreciation occurs between the date of conversion and the date of return. This contention, though meritorious (See Wahrer Bros., Inc. v. Williams, 16 Ill App2d 467, 148 NE2d 600), is inapplicable since the trial judge found that there was a depreciation in the value of all Whitney’s equipment between 1956 and 1964 in the amount of $2,000. The testimony of witness Bates set the value of the Hexarmour production line in the summer of 1956 at $25,000 to $30,000. Whitney testified that he would have sold the property for $25,000 shortly before the date of the conversion. Several witnesses then testified as to the condition and production capabilities of the machinery in 1964, with Bates and Berliner testifying that its value at that time was about the same as it was in 1956 — between $25,000 and $30,000. Although Whitney and Cordova testified that in 1964, due to the vast increase in the number of producers of hexsteel and the apparently poor condition of the Hexarmour machinery, its value was little more than scrap resale, as was the bridge decking equipment, the court indicated its preference for the expert testimony of counterdefendant’s witnesses on these matters. “The trial judge observed the witnesses and heard them testify. It was up to him to determine who to believe and who not to believe. Credibility of the witnesses is always a question for the trier of facts, and we will not upset his determination.” Nawoski v. Pallotta, 63 Ill App 2d 50, 51, 211 NE2d 600, 601. Similarly, the trier of fact is in a better position to determine the weight to be given to the evidence. In this case, the court found as a matter of fact that there was a depreciation of value, which though not readily ascertainable by virtue of the wide discrepancy in testimony, should nevertheless afford a basis for recovery. Thus the court did not commit legal error by awarding special damages unsupported by the evidence. Rather, the court awarded, and we think reasonably, $2,000 damages for diminution in value of all Whitney’s machinery and equipment, other than the steel, based on its interpretation of the conflicting evidence.

The trial court then assessed damages for conversion of counterplaintiff’s steel at $17,955, after hearing evidence as to the value of 300,000 pounds of slit-edge strip steel on or about August 23,1956. Thus the court applied the usual formula for conversion, though there was no direct evidence as to the value of the steel in August of 1956. However, both Whitney and Weiland object to the particular manner and method of valuing the steel on that date, and Whitney suggests a different formula be used.

Having already decided that the conversion took place on August 23, 1956, we may disregard Whitney’s plea that damages be assessed as of 1954. Whitney then urges that since the conversion occurred in August of 1956, the court should have priced the steel as the value which was shown by the evidence to be closest to that date. He suggests that Weiland and Hexarmour Company entered into an agreement prior to the initial trial before the chancellor in 1956 which established the value of the steel on that date at $25,485. However, since the evidence discloses that this appraisal was based on the market price of mill edge steel as it was represented by Whitney, when in fact the trial judge below found the steel to be slit edge, it was proper for the lower court to disregard the 1957 valuation as long as its determination that the steel was slit edge is correct.

On this issue, the lower court considered the testimony of Weiland who stated the steel was slit edge, against that of Whitney and even counterdefendant’s own witness, John Dudzik, both of whom testified the steel was mill edge. Also in evidence was the purchase price of the steel in 1953 at $17,955, which casts some doubt that the steel was prime quality, mill edge steel as Whitney later asserted. Conspicuous by its absence from the evidence is any positive identification of the strip steel as either mill edge or slit edge. Considering that plaintiff has the burden of proof of damages in a conversion action, and where substantial sums are involved, as here, it would seem better evidence could have been introduced in the form of the original purchase order of the steel or testimony of the seller’s agent identifying the steel.

We respect the trial judge’s decision on this evidentiary conflict which finds that the steel was in fact slit edge, and thus we reject the alleged agreement of the parties concerning the value of the steel in 1957 as providing the basis for conversion damages of the steel.

A more difficult question is posed by Wei-land. He argues that Whitney’s offer to sell the steel to Bates in Summer of 1956 for $16,100, occurring just prior to the date of counterdefendant’s conversion, reflects the true value of the steel and should therefore be the measure of conversion damages. The true measure of market value of property, however, is the price which it will bring in the market on a fair sale when the seller is willing but not obliged to sell and buyer is willing but not obliged to buy. Farson v. Buder, 187 Ill App 318. Whitney’s willingness to sell the steel for $16,100 which was but part of a total offer to sell the steel together with his Hexarmour Production line, would not be a true indication of the market value of the steel alone. Knowing that the contract between Weiland and himself had terminated in January of 1956, and being anxious to dispose of his property in its present condition, it is reasonable that Whitney’s price tag on the steel would not represent true market value. Thus we find the court did not commit legal error by its failure to assess the value of the steel in August of 1956 at $16,100.

The court had before it evidence as to the market value of the steel in May, 1953 and in November of 1965. It rejected the stipulation of value on November 23, 1965, as being an unrealistic and remote representation of market value on August 23, 1956, since Weiland no longer had control over the steel and it had been sold six years previously. Then the court fixed the market value of the steel in August of 1956 to be the same as it was in May of 1953, which evidence was received by way of stipulation and established the value of the steel at $17,955. Weiland objects to the court’s application of a cost basis for conversion damages without allowing for depreciation from the date of purchase to the date of conversion. Whitney suggests that strict adherence to a rule measuring damages by market value at the time of conversion is obsolete when the converted property undergoes a fluctuating but increasing valuation from the date of conversion. He argues that damages should be measured at the highest intermediate replacement value to the date of judgment.

With respect to counterdefendant’s contention that depreciation should be considered where cost is used as a basis of damages, it is significant to note the absence of evidence in the record relating to actual depreciation of the steel. Weiland observes that Whitney offered to sell the steel for $16,100 in the summer of 1956 and argues this constitutes evidence of depreciation. On the contrary, as we have noted earlier, Whitney’s willingness to dispose of the steel for $16,100 was but part of a larger offer to sell the Hexarmour Production line and the steel at an attractive price. In fact, neither party denies that the price index of strip steel increased since 1953. Under these circumstances it would have been error for the trial court to diminish recoverable damages below cost where no evidence existed as to depreciation.

Whitney, on the other hand, contends that damages should be set at the highest intermediate replacement value to the date of judgment. Bushnell v. Curtis, 236 Ill App 89, is cited by counterplaintiff but is, we

think, far from the point. That case involved breach of a broker’s agreement to buy certain corporate stocks for the plaintiff where the market price of the stocks subsequently rose. The court allowed the difference between the price of plaintiff’s purchase order and the price to which the stocks had risen at the time plaintiff learned of defendant’s breach as damages which were within the contemplation of the parties at the time they entered into the transaction. That court made no ruling, as alleged by Whitney, that proper damages were the highest intermediate replacement value to the date of judgment. On the contrary, the court was dealing with a breach of contract and applied the standard measure of damages therefor. Further, by way of dicta the court observed that Sturges v. Keith, 57 Ill 451, sets out the proper measure of damages for conversion of personal property which is the market value of the property at the time of conversion, notwithstanding any subsequent increase in value. This is still the law in Illinois.

In the instant case it is undisputed that the price of the steel at the time of its purchase in 1953 was $17,955 and the time of purchase was approximately three years before the actual conversion. Since the trial court had no competent evidence before it of the market value of the steel at the time of the conversion, and since the only competent evidence it did have was the price at the time of purchase, the court fixed the market value of the steel on August 23, 1956, to be the same as of the date of purchase in 1953. Admittedly, this is a lesser sum than that contended for by Whitney, but having offered no evidence to sustain the market value of the slit edge steel in August of 1956, he will not now be heard to complain.

Therefore, we find the trial court was justified in establishing the market value of the steel on August 23, 1956, at $17,955 and awarding this amount as damages for conversion. On the question of interest, the trial judge decided to disallow counterplaintiff’s claim for this item and we will not set aside his determination. See Duncan v. Dazey, McKey v. McCoid, and Kelrick v. Koplin, supra.

On the issue of court costs, Whitney requests this court specifically assess the $5,000 Master’s Fees against Wei-land and complains of the trial court’s decision to limit recovery of stenographer’s fees, witness’ fees and other costs to that amount set by Judge Tucker at the initial trial. He further prays for permission to amend his counterclaim nunc pro tunc to add the employment of additional counsel at a fee of 20% of whatever judgment is collected as damages.

The fees of the Master were fixed by the Chancellor at the original trial and assessed as costs. The costs were assessed 90% against Whitney and 10% against Weiland. Consistent, however, with our order in the original appeal, 40 Ill App2d 70, 94, 188 NE2d 756, the lower court was directed to assess the costs against Weiland. Therefore, the $5,000 Master’s fee as well as the witness’ fees, stenographer’s fees and other costs of the original trial were assessed by the lower court against Weiland, according to the statement of costs set out by Judge Tucker in the original trial in Chancery Court. Recovery of additional witness’ fees, however, is a matter addressed to the sound discretion of the court. Chapter 33, section 15, Ill Rev Stats 1965; Chicago, P. & St. L. R. Co. v. Eaton, 136 Ill 9, 26 NE 575; White v. Murtland, 71 Ill 250. We find that this discretion has not been abused in the instant case.

Further, chapter 110, section 309.3, Ill Rev Stats 1965, provides that “Stenographer’s fees may be taxed against the party who occasions any improper proceedings before the master not warranted by the interests of justice or by the rights of the parties.” Apparently the lower court found this case was not of such character as recovery of stenographer’s fees was withheld. We find no error in this disposition.

Whitney’s request to amend his counterclaim to include reasonable attorney’s fees is denied since at this stage of the proceeding the allowance of such fees would be clearly prejudicial to counterdefendant. Counterplaintiff relies on Cors v. Tompkins, 51 Ill App 315, and Lawrence v. Hagerman, 56 Ill 68, in support of his request for attorney’s fees as damages. These cases, however, involve the special situations of permissible costs following dissolution of a temporary injunction and defense against false attachment, both of which are covered by statutory law. See chapter 68, § 12 and chapter 11, § 15, Ill Rev Stats 1965.

Other contentions and assignment of error made by Whitney have been considered and rejected either as being without merit or because of cross-appellant’s failure to comply with Appellate Court Rule 7 which demands reference to the appropriate page of the abstract whereon evidence supporting his assignment of error may be found. In this situation we will not explore the record, especially where it is so voluminous as in this case, to find some ground upon which to consider the assignment of error. St. Louis & O. Ry. Co. v. Union Trust & Savings Bank, 209 Ill 457, 70 NE 651; La Prise v. Carr-Leasing, Inc., 326 Ill App 514, 62 NE2d 26. In addition, this opinion is already too long.

The rulings of the lower court are therefore affirmed in part and modified in part, and judgment is entered for Whitney and Hexarmour Company and against Weiland Tool and Manufacturing Company. Pursuant to this decree, $1,179.07 are assessed as damages against Weiland for breach of contract; $2,000 are assessed as damages against Weiland for conversion of all Whitney’s machinery and equipment, other than the steel, and $17,955 are assessed as damages against Weiland for conversion of Whitney’s steel. The Clerk of the Circuit Court of Cook County is directed to refund and dispense the deposit of $11,265.36 held as proceeds of the sale of Whitney’s steel in 1959 to Whitney, and this amount shall be credited against the assessment of $17,955 due and owing by virtue of this judgment as damages for conversion of the steel. The Master’s fee of $5,000, together with other amounts assessed as costs by Judge Tucker on the original trial of the case, are also assessed against Weiland.

Affirmed in part, reversed in part, and modified with directions.

GOLDENHERSH and EBERSPACHER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Blaw-Knox Company, a Corporation, Plaintiff-Appellee v. Eichleay Corporation, Defendant-Appellant.
    Gen. No. 52,390. (Abstract of Decision.)
    First District.
    October 7, 1968.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Lee Zagier, Defendant-Appellant.
    Gen. No. 67-90
    Third District.
    October 7, 1968.
   Opinion by PRESIDING JUSTICE ALLOY. Not to be published! in full.


author: SCHEINEMAN, J.

text:
    George Heep, et al., Plaintiffs-Appellants, v. Frank Mason and Elmer Vitalis, d/b/a Vitalis Truck Lines, Defendants-Appellees.
    Gen. No. 67-100.
    Third District.
    October 7, 1968.

      Perona & Perona, of Spring Valley, for appellants.
    O’Brien, Burnell, Puckett & Barnett, of Aurora, for appellees.
   SCHEINEMAN, J.

On October 30, 1964, the plaintiff, George Heep, was driving his car eastward from Ottawa on Interstate Route 80, with Jane Etheridge, John Giordano and Pat Slingsby as passengers in a car pool. There was possibly some light fog, but visibility was good so they proceeded at 65 to 70 miles per hour. Earlier the fog had been much denser, causing a series of accidents, since they observed cars had gone off the road and there was debris visible.

As they approached the Marseilles exit, they were stopped by police because of a wreck ahead of them, which they were told had occurred during the heavy fog. The wreck was cleared away and after a half hour they were permitted to proceed. Heep started eastward again and observed the defendants’ truck pulled out just behind him.

Visibility continued to be normal for a time, then they came into a patch of very dense fog where visibility was practically zero. Heep stopped his car on the pavement and Slingsby got out to direct him off to a parking place. Slingsby then heard the noise of a truck approaching from their rear, he shouted a warning to Heep, but it was too late and the defendants’ truck crashed into the rear of the Heep car, knocking it about 30 to 40 feet off to the south, and the three persons in it suffered personal injuries, for which they brought this suit.

A jury found for the defendants, and the plaintiffs appealed, contending the verdict is contrary to the manifest weight of the evidence, that they should have received a directed verdict, and that the court erred in rulings on instructions.

According to the general trend of the various witnesses’ testimony, the entry into the heavy fog was quite sudden and they had no previous knowledge or observation of this dense fog. They disagreed somewhat as to how far the Heep car traveled in the heavy fog before it stopped. Heep said a block or so, but admitted he had previously estimated 10 to 20 feet and had so stated in a deposition. He said he had changed his mind after thinking about the drive in a sheriff’s car when he was injured and was taken to a hospital.

Heep said he had been driving 65 to 70 miles per hour until he hit the heavy fog, then he quickly reduced to 30 and that he then stopped. The visibility had been good prior to the sudden change.

The defendant, Mason, declared there was no warning of the fog. It was like having a blanket thrown over the windshield or like running into a wall. He was traveling about 30 miles per hour and estimated he had driven 30 to 40 feet in the dense fog when the collision occurred.

In view of the general agreement on the suddenness of the blotting out of visibility, we see no merit in the argument that the court should have directed a verdict for the plaintiffs. The same opaque condition which caused Heep to stop on the pavement existed also for the defendant, Mason, and this presented a jury question as to the conduct of Mason.

It was clearly a question for the jury whether the sudden change in the weather was to be blamed for the accident. It could not be said as a matter of law that Mason did not maintain a proper lookout, or had his truck under proper control.

It was somewhat hazardous to stop in the dense fog on the pavement, especially on that highway with its known heavy traffic and, of course, Heep knew the defendants’ truck was behind him. Heep could not be expected to exercise perfect discretion in the emergency, but the same emergency existed for the defendant, Mason. The plaintiff called as a witness a driver of another car which had encountered the same conditions. This driver testified he pulled off the pavement, drove through the drainage area and up on the other side, stopping only when he could park along the fence line.

Under the conditions facing the defendant, Mason, as well as the plaintiff, Heep, it must be held that the verdiet was within the scope of the evidence and that a new trial is not justified.

Although we consider the case presented questions of fact for decision by the jury, the appellants have attempted by the citation of numerous cases to make it appear that the case presented a question of law. They cite Hollis v. Mateika, 66 Ill App2d 267, 213 NE2d 409; Little v. Illinois Terminal R Co., 320 Ill App 163, 50 NE2d 123; Johandes v. Chicago M. & St. P. R Co., 260 Ill App 328; James v. Motor Transit Management Co., 260 Ill App 246, and Gilman v. Lee, 23 Ill App2d 61,161 NE2d 586.

We do not consider any of these cases in point. These involved situations where a party had warning of a condition or had the opportunity to see an obstacle, which others did see, or other reasons not present in this case. We cannot ignore, nor hold that the jury ignore, the testimony that visibility had been good, then a heavy blanket of fog descended on the area, without warning. Nor can we ignore the evidence that the collision occurred a very short time after the advent of the fog, and before the vehicles had time to proceed very far in it. The argument for appellants ignores this evidence and assumes a different state of facts.

Referring to the instructions, we note that the court gave IPI instruction No. 12.05 Revised, at the request of the plaintiff, in the following form:

“If you decide that the defendants were negligent and that their negligence was a proximate cause of injury to the plaintiffs, it is not a defense that something else may also have been a cause of the injury.
“However, if you decide that the sole proximate cause of injury to the plaintiffs was something other than the defendants, then your verdict should be for the defendants.”

It is argued that fog is merely a condition and can never be regarded as a proximate cause. There are cases in which this was true of the condition shown in evidence where there was convincing evidence of actual negligence on the part of a driver which was plainly a proximate cause. This is not a rule to be applied in all cases regardless of the facts. Thus, in Berg v. New York Cent. B. Co., 391 Ill 52, 62 NE2d 676, the Supreme Court stated:

“The undisputed facts lead to the conclusion that the icy condition of the street was the proximate cause of the injury and not defendant’s wrongful act.”

Appellants seek to distinguish that case on the ground the “condition” was ice on the pavement, not fog. But in the numerous trials of cases concerning traffic injuries, it is routine to ask the witnesses what the weather conditions were at the time. The witnesses are expected to inform the jury of the condition of the pavement, and of any impairment of visibility such as may be caused by heavy rain, snow or fog. This is because it is common knowledge conditions may impede a driver in operating his vehicle, and, especially where the condition is met suddenly without reasonable warning, a jury may be justified in finding that a driver should not be blamed for something he could not help. Observe that the court instructed the jury if the defendant was negligent and that negligence was a proximate cause of any injuries, it is not a defense that something else may also have been a cause. It is clear the instruction was fair to the plaintiffs, and it was not error to give it.

It is further argued that the court erred in refusing to give plaintiffs’ instruction, as follows:

“The fact that motor vehicles other than the plaintiffs and the defendants were involved in accidents on the day of the occurrence is not to be considered by you in determining whether the defendants exercised ordinary care in this accident.”

This instruction violates the modern technique of instructing juries, in several ways. In the first place, the Illinois system now in vogue tends to follow the basic policies set out in IPI. It is stated in the foreward to that volume by the chairman of the Supreme Court Committee on Jury Instructions:

“First, the Committee in general has been opposed to negative instructions, that is, instructions which tell the jury not to do something.
“We have been firmly against instructions which single out a particular item of evidence for comment, even when there is judicial authority for the instruction.”

It is also obvious that this proposed instruction is not an attempt to state a rule of law, but it is an argument for the plaintiffs along the line of the former practice, now condemned, of having the judge present arguments to the jury. Thus it violates the Supreme Court rule which permits the giving of an instruction not in the book, provided it meets certain criteria, including the requirement that it be “free from argument.”

The fact that many other accidents happened in fog that day, is an indication of its density which might otherwise be difficult to describe, so that a jury would understand what the conditions were. The evidence on this subject came in response to questions from both sides, there was no objection to this line of testimony. It would surely be confusing to a jury to hear this evidence without objections, and then hear the judge tell them not to consider it. It could also be argued for the plaintiffs that the indications of other collisions might be a form of warning to the defendant driver that he might encounter dangerous conditions. The refusal of this instruction was proper.

The verdict was within the scope of the evidence, there was no error in the instructions and the judgment is affirmed.

Judgment affirmed.

STOTJDEB and ALLOY, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Winchell, Defendant-Appellant.
    Gen. No. 67-65. (Abstract of Decision.)
    Third District.
    October 7, 1968.
   Opinion by JUSTICE SCHEINEMAN. Not to be published in full.


text:
    George H. Chiribes, Petitioner-Appellant, v. Roger A. Bjorvik, Executor of the Last Will and Testament and Codicil of Samuel D. Chiribes, Deceased, Respondent-Appellee.
    Gen. No. 52,360.
    First District.
    October 7, 1968.
    Arthur Abraham, Goldberg and Goldberg, of Chicago, for appellant.
    William T. Regas, of Chicago, for appellee.
   MORAN, J.

The appellant, George Chiribes, appeals from an order of the Circuit Court of Cook County, denying his petition which claimed an inter vivos gift of 2,000 shares of Sears, Roebuck stock.

The appellant’s father, Samuel Chiribes, died on October 29, 1966. He was a retired employee of Sears, Roebuck & Company, and during the course of his employment acquired 2,000 shares of Sears stock. In addition, he owned 100 shares of Consolidated Edison Stock, a condominium apartment and personalty. The total value of his possessions, including the Sears stock, amounted to approximately $130,000. The Sears stock itself was worth $95,000 to $100,000.

In September, 1966, Samuel Chiribes was admitted to a nursing home and on October 17, 1966, he executed a will leaving 45% of his estate to Christian Science Churches, 25% to his son, George, 10% to his brother-in-law, Theodore Benson, 5% to his niece Arlene Jakowsky, 5% to Roy Baum, and two bequests of 5% each to two specific Christian Science Churches. On October 18,1966, Samuel entered a hospital and on the same date petitioner entered the deceased’s safety deposit box which was in the name of deceased and himself, emptied it, and also removed the sum of $5,900 from joint checking and savings accounts standing in his and the deceased’s names. On October 20 the deceased executed a codicil in which he bequeathed the Consolidated Edison stock to Vivian Chiribes, the wife of his son, George, and the sum of $1,000 to each of three named children of Roger Bjorvik, his attorney, who was also the executor of his estate. He died nine days later, on October 29,1966.

Bjorvik testified that after the funeral he discussed the provisions of the will with George and gave him a copy of the will and codicil. In a conference between the two, George indicated that he would contest the will and the executor then filed the will in Probate Court of Cook County on November 14, 1966. George Chiribes then filed a petition contending that his father had made a gift of the 2,000 shares of Sears stock to him, but inadvertently failed to endorse the shares, and that the court should appoint a special administrator to defend and that this administrator should be required to endorse the shares over to the petitioner.

At the hearing George Chiribes and his wife, Vivian, testified that on May 20, 1966, George’s father came to their house for dinner and that while Vivian was in the kitchen, the father gave George the 2,000 shares of Sears stock. George testified that his father told him that the gift was to make up for all the bad times they had when George was a boy. George then called in Vivian. She testified that her father-in-law stated that he had given the 2,000 shares of Sears stock to George. George then put the shares in a dresser drawer in the bedroom. Both testified that neither looked at the stock until November, 1966, and then discovered that the shares were unendorsed. George also testified that his father had a safety deposit box and that George had access to this box. The entry record for this box showed the last entry of Samuel Chiribes to be on May 12, 1966. George testified that he emptied the box on October 18, 1966, when his father entered the hospital and that the box contained nothing of value. He further testified that he later found the Consolidated Edison stock which would go to his wife, Vivian, under the will, in an envelope with the Sears stock.

Bernard Blair, the employer of George Chiribes, testified that he had two conversations with the deceased in June, 1966, and that in each of these conversations the deceased told him that he had given George the 2,000 shares of Sears stock. Hilmar Schmidt, an old friend of the deceased, testified that the deceased told him that he had given the shares to George.

Roy Baum, the operator of the nursing home in which the deceased resided for a short period before his admittance to a hospital, testified for the estate. He stated that on October 19, 1966 in the hospital, Sam said in his and George’s presence that he was going to sign a codicil the next day which would do something for Vivian. He further testified that a day or two after the funeral, George called and asked if he knew what was in the father’s will. He told George he did not know and that after George met with the executor, George called and said, “ ‘Roy, what do you think? The will was just as I thought it would be.’ He said Sam had left 55% to the churches. He says, ‘You remember he was going to take such good care of Vivian? He left her about $2,500.00, and he left Rose’s brother 10% of the estate.’ He says, ‘You are in it and it is 5% for you.’ He says, ‘Whether you were in it or not, I know that you are the one person Dad would want to take care of . . . .’ I said, ‘What was the size of the estate?’ He said, ‘Around $130,000.00.’ ”

Bjorvik testified that he prepared the last wills and testaments for both Samuel Chiribes and his deceased wife, Rose, and that he represented Samuel in the processing of Rose’s estate. He called George Chiribes the day after the funeral to make an appointment with him for November 4, 1966, concerning the handling of Sam’s estate and at that time he advised George they would have to make an appointment with the State of Illinois to inventory the contents of Sam’s safety deposit box. George then said that he had entered the box and emptied it, but that he would bring the stock and other papers to Bjorvik’s office so that they could go over them. George and his wife, Vivian, came to his office and he showed them a copy of Sam’s last will and testament and the first codicil to it. After George read the will and the codicil, he “stated to me that he couldn’t understand how his father could do this. He said that his father had told him on many occasions that if anything happened to him that he wouldn’t have anything to worry about.” He showed George a list of the assets of his father’s estate which included the shares of Sears, Roebuck stock, and George then said that on many occasions his father had offered him the stock but that he had refused the offer because he knew the father needed the dividends to live on and that at no time during this conference did George or his wife claim that his father had given him the stock. Bjorvik further testified that he saw decedent in August, 1966, in decedent’s apartment for the purpose of going over the inheritance and estate tax returns in his wife’s estate and that he told the deceased that he was trying to get a statement from Sears, Roebuck and Company relative to the Sears stock and as a result of the pension plan of Sears and his ownership of the stock there would be no estate tax, “and I showed him the returns scheduling the assets, and he signed the returns at that time.” He next met decedent in October, 1966, when decedent was at the Anna Baum Nursing Home in Geneva, Illinois, for the purpose of modifying decedent’s will. Decedent asked him how much 5% of his estate would amount to and Bjorvik told decedent that 5% would amount to about $6,000. He said he made the changes to the will suggested by the decedent and then returned to the nursing home where the codicil was signed by the decedent in the presence of two witnesses. Bjorvik testified that at no time during any of the conversation he had with the decedent, did the decedent tell him that he had given the Sears stock to his son, George Chiribes.

Mr. and Mrs. Theodore Benson (in-laws of the deceased), and their daughter testified that the deceased made statements about the alleged gift which would indicate that he considered the stock to still be his. The Bensons testified that in August, 1966, Mrs. Benson kidded the deceased about his recent purchase of a new Cadillac and stated that he must have sold some Sears stock to make the purchase. Mrs. Benson testified that the deceased said, “No, ma’am, I’ll never sell Sears, but I did cash in some government bonds.”

The Benson’s daughter, Arlene Jakowsky, testified that in July, 1966, the deceased told her that he had more money than he could ever spend and also that he intended to leave $60,000 to $65,000 to his church. She further testified that she told him that that was an awful lot of money and he answered, “Well, I have much more than that.” Both Arlene and her parents testified that the deceased did tell them that he made a gift of a Sears colored television set to George Chiribes in May, 1966.

Appellant contends that the testimony of Roy Baum, the Bensons, and their daughter was inadmissible since a donor may not impeach his own gift by his subsequent statements and that their testimony also was inadmissible because they were incompetent witnesses under section 2 of the Evidence Act. (Ill Rev Stats, c 51, § 2.) He further contends that Bjorvik’s testimony was unworthy of belief because he was the attorney for the estate and that Bjorvik’s testimony concerning his conversations with the decedent was also inadmissible on the grounds that a donor is not permitted to impeach his own gift by subsequent conduct or statements. Petri v. Rhein, 162 F Supp 834. Finally, appellant contends that the trial court’s decision should be reversed with directions to enter an order that there was a valid gift because all of the evidence offered on behalf of appellee was incompetent and therefore appellant’s evidence that there was a gift of Sears stock stands unrefuted.

How ever much we might agree with the appellant’s contentions, we will not consider any error in the rejection or admission of appellee’s evidence, because appellant does not seek a new trial but only asks for an outright reversal. Any error in the admission or rejection of evidence by the trial court can be considered by the Appellate Court only when a new trial is requested, and not when the sole request is for an outright reversal. Millikin Nat. Bank of Decatur v. Shellabarger Grain Products Co., 389 Ill 196 at 200, 58 NE2d 892; Gundich v. EmersonComstock Co., 21 Ill2d 117, at 128, 171 NE2d 60. Defendants have circumscribed the relief they may obtain in this court and waived any errors in the admission or exclusion of evidence by the trial court. McCottrell v. Benson, 32 Ill App2d 367, 178 NE2d 144; Walden v. Chicago & N. W. Ry. Co., 411 Ill 378,104 NE2d 240.

There was conflicting evidence before the trial court on whether Samuel Chiribes gave the Sears stock in question to appellant during his lifetime. “Where the trial court has seen and hears the witnesses and the testimony is contradictory, this court will not substitute its judgment as to the credibility of witnesses for that of the trial court, and will not disturb the findings unless they are manifestly against the weight of the evidence.” Brown v. Zimmerman, 18 Ill2d 94, 163 NE2d 518. We do not believe that the trial court’s finding was contrary to the manifest weight of the evidence in the present case. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


text:
    Johnny J. Washer, Plaintiff-Appellee, v. Charles T. Tanner, Defendant-Appellant. Charles T. Tanner, Plaintiff-Appellant, v. Johnny J. Washer, Defendant-Appellee.
    Gen. No. 67-83.
    Third District.
    October 8, 1968.

      Vonachen, Cation, Lawless, Trager & Slevin, of Peoria, for appellant.
    James Cunningham, of Peoria, for appellee.
   SCHEINEMAN, J.

The two parties to this litigation, Mr. Washer and Mr. Tanner, while driving their own cars, had a collision on a busy city intersection, controlled by electric traffic lights. Each claims he proceeded on the green light and that the collision was the fault of the other party. The testimony of the parties, a policeman on duty at the intersection and pedestrians in the vicinity was highly conflicting and presented an obvious jury question. We will make no further reference to the facts of the collision. The jury found for Washer, and this appeal by Tanner presents claims of erroneous procedure to his prejudice.

About ten months after the occurrence Washer filed suit in Magistrate Court against Tanner for his car damages. Thereafter, Tanner filed suit in Circuit Court against Washer, claiming damages for personal injuries. Since the suits involved the same occurrence, the same parties and the same occurrence witnesses, the Court ordered the cases consolidated for trial. Pursuant to the Court’s order, Washer was to have the opening and closing of testimony and argument.

The consolidation of cases growing out of the same occurrence, or otherwise involving similar issues, is a matter in the trial court’s discretion. It is in frequent use in these days of voluminous litigation concerning traffic cases and the procedure has been approved in a number of reviewed cases. Evaskus v. Neff, 40 Ill App2d 416, 189 NE2d 542; Griffy v. Ellis, 26 Ill App2d 112, 168 NE2d 58; Buggies v. Selby, 25 Ill App2d 1, 165 NE2d 733.

The appellant does not specifically assert that consolidation was error in this case, but he expressed so much dissatisfaction with the procedure, and advances such unusual arguments, that this court considered it necessary to reassert that a procedure of consolidation has an important place in modern litigation, that it is approved by the courts of review and that it necessarily does involve some discretion on the part of the trial court.

The appellant very much resented the provision in the consolidation order which gave to Washer the right to open and close. He states as a rule of law:

“Whenever the plaintiff has anything to prove in order to secure a verdict, the right to open and close belongs to him and it is not within the discretion of the trial court to limit or deny that right.”

This is the rule applied in certain special situations where one party has the burden of proof and the other party is not obligated to present any evidence. A typical case cited by appellant is Liptak v. Security Benefit Ass’n, 350 Ill 614,183 NE 564.

In that case the plaintiff sued to recover insurance on her husband’s life. The defendant admitted every material allegation in the complaint but sought to avoid liability on the ground the insurance certificate had been cancelled pursuant to the Association’s bylaws. The plaintiff did not have to present any evidence, but the defendant had to prove its avoidance. In reversing the plaintiff’s judgments, the Supreme Court held that the defendant having the sole burden of proof, had the right to open and close, and the trial judge had no discretion in this respect.

There are a number of cases of this type in the reports although they arise very seldom under our modern practice. There is no doubt of the existence of the rule, but it has no application to the case at bar. In this case both parties had the burden of proving charges of negligence against the other and their burdens were quite similar. The appellant’s desire to apply the special rule in this case would result in absurd consequences. The trial judge has undoubted discretion to consolidate cases of this type; if the consolidated trial involves more than one plaintiff having certain facts to prove, application of recited law would give each and every plaintiff the right to open and close, which is an impossibility. And the deprivation of any discretion in the judge compounds the difficulty.

We therefore assert that this absurdity does not exist in our law, for the simple reason that the cited rules do not apply in this type of case. When consolidation results in several parties having a burden of proof, the trial judge must necessarily direct the sequence of presentation. Our procedure is copied from New York law and the New York Courts of Review have repeatedly held that the discretion of the trial judge includes the power to direct that the sequence of presentation shall be in the order of filing the litigation. Lee v. Schmeltzer, 229 App Div 206, 242 NYS 34; Scovill v. Moab Realty Co., 229 App Div 756, 242 NYS 39.

The appellant here suggests that this court adopt a new rule of procedure, directing the trial judge to give precedence to the more serious case. This is impractical for a separate trial would often be needed before the judge could decide which litigant should go first. Moreover, if he has to decide such involved points, it might be more sensible to say he must decide which litigant has the more just claim and let him go first.

We do not believe that the appellant’s claim for personal injuries makes his case necessarily the more serious. And the jury was not so impressed.

Next it is contended the trial court should have controlled the order for proof in Washer’s case, restricting him to examination of witnesses as to his own claim and should not have allowed him to put in his entire case, including his defense of the Tanner case.

We do not propose to rule that the trial judge must take over the management of a litigant’s case and tell him what testimony may be introduced at a given time. An attorney is often compelled to follow some order of testimony according to the availability of witnesses. This is especially true of his medical experts. He already had a difficult time in managing these witnesses so as to not delay the trial. Any further restrictions imposed by the trial judge would make his obligations intolerable.

Referring back to our comment that the appellant does not specifically assert the court erred in consolidating these cases but proceeds to display complete dissatisfaction with the procedure. We may summarize his principal argument thus: First, he believes a simple expedient of asserting that Tanner suffered personal injuries should give Tanner a priority that displaces the normal procedure in consolidated cases. In this he is contending the court must assume that the claim of more serious injuries is meritorious and not open to question; second, he asserts a rule of law which is applied only in certain special situations of rare occurrence, and asks to have it applied where it is not applicable, to deprive the trial judge of his normal discretion; third, he seeks to have the court announce some new procedural devices, and would expect to have the case sent back for a new trial under the new rule; and, finally, he would have the trial judge take charge of the presentation of evidence to the exclusion of an attorney’s control over his own case.

Our comments on the points made on this appeal do not disclose the extent of their presentation during the trial. This involved interruptions for presenting objections and arguments out of the presence of the jury, which amounted to repeated attempts to obtain a rehearing on the consolidation order, in the expectation the judge would change his ruling. This persistence did finally persuade the presiding judge to depart from normal procedure to the extent of allowing extra, additional closing arguments, with the agreement of opposing counsel.

Appellant also asserts that the trial judge improperly interrupted this attorney’s closing arguments to make adverse rulings when there was no objection pending. Since we do not have the arguments before us, we cannot make any special ruling as to the court’s comments. In general, we would say the trial judge should exercise some supervision over any attorney’s comments and should admonish against arguments that seek to appeal to sympathy, or otherwise try to divert the jury from their proper function in the case.

The appellant also complains of the rulings on instructions. Examination thereof discloses that instructions tendered in behalf of Washer were in accordance with recommendations in IPI and were pertinent to the issues. The only Tanner instructions refused were considered by the trial judge to be repetitious and we think there was reasonable ground for this view. We are of the opinion that the jury was fairly instructed.

As to Tanner’s assertion that the Washer complaint was in simplified form and was not amended until after the verdict, therefore the judge could not state the issues to the jury, — we do not believe a judge can sit through a trial, and find that he does not know what issues are presented to the jury.

The trial of this case was conducted according to current rules of practice and procedure and it is free from reversible error, therefore the judgment is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Herbert Rudder, Defendant-Appellant.
    Gen. No. 68-5.
    Second Judicial District.
    October 9, 1968.

      Marco and Mannina, of Downers Grove, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton (Kevin P. Connelly and Michael Fitzsimmons, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant appeals from a jury verdict and judgment finding him guilty of aggravated assault and driving while license suspended. The defendant was sentenced to one year in Vandalia on each complaint, the sentences to run concurrently.

On the appeal, the People have confessed error on the charge of aggravated assault, conceding, and we so find, that the proof as to this charge was fatally insufficient. It is apparent from the complaining witness’ own testimony that the defendant did not threaten harm to her at the time of the alleged confrontation and that she was not apprehensive or fearful of receiving a battery. Thus the State failed to prove essential elements of the crime charged. Ill Rev Stats 1967, c 38, § 12-2.

The defendant argues that the trial court committed substantial error in denying defendant’s motion for a directed verdict on the charge of aggravated assault and in permitting the issue to go to the jury, claiming prejudice as to the remaining charge. He also urges substantial error in the denial of a continuance and in the court’s rulings on evidence.

The defendant had sought a continuance on the day of the trial, first because of his physical appearance. He had been arrested the evening before his trial and appeared in court with blood and bruises on his face and blood on his shirt, and in a dishevelled condition. This motion was denied, but the trial court offered defendant a short delay to clean himself up. This offer was refused and the defendant then moved to continue the matter on his representation that his wife, who could corroborate his defense, was in the hospital awaiting the birth of a child. This motion was also denied by the court. Neither motion was supported by affidavit.

The claim of error as to the introduction of evidence related principally to cross-examination of the defendant and his brother relating to defendant’s unemployment and defendant’s whereabouts at other times not in question; and to allowing the police officer to testify to a hearsay conversation with the complaining witness, the ex-wife; and to a limitation on the cross-examination of the ex-wife to show her bias and previous complaints.

The proof on the driving charge was by the former wife of defendant and her friend and neighbor, both of whom, in testifying as to the alleged assault with a gun, stated that defendant drove a car to the place in question. Defendant admitted the license suspension but denied that he had seen his ex-wife, or that he had driven an automobile, on the day in question. Defendant’s brother corroborated defendant’s testimony, accounting for his presence on the entire day in question. Defendant further testified that his present wife owned the automobile described and drove him in it on the day of the alleged assault.

The refusal of a continuance is normally within the discretion of the trial court with which we would be loath to interfere. People v. Kurtz, 69 Ill App2d 282, 285, 216 NE2d 524 (1966). Nor, in our opinion, did the court’s rulings on the evidence, in themselves, constitute reversible error.

We are yet of the opinion that the totality of the circumstances in this record have prevented the defendant from securing a fair and impartial trial. The trial court erred in refusing to direct a verdict on the assault charge under evidence which was clearly insufficient to warrant submission of that charge to the jury. The conflicting testimony common to both charges, as to defendant’s presence at the scene and whether he drove, depend entirely on the credibility of witnesses hostile to one another. The absence of defendant’s wife, the appearance of the defendant on the day of trial, the inference from the court’s erroneous ruling that the assault charge was sufficient to go to the jury, all taken together effectively prevented a fair trial on the driving charge.

We adhere to the rule that a judgment of conviction should not be reversed merely because some error has been committed unless it appears that real injustice has resulted from such error. People v. Cavanaugh, 13 Ill2d 491, 150 NE2d 592 (1958). However, we are of the opinion that the refusal of the trial court to direct a verdict on the clearly inadequate proof of the assault charge here was a substantial error which, under the circumstances, may have precipitated and resulted in the verdict on the driving charge.

We, therefore, reverse the conviction of aggravated assault without remand, and reverse the conviction of driving while license suspended and remand the latter charge for a new trial.

Reversed and remanded.

ABRAHAMSON, P. J. and MORAN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Hurley and Danny Beavers, Defendants-Appellants.
    Gen. No. 68-16.
    Second District.
    October 9, 1968.
    Rehearing denied November 14,1968.
    John T. Beynon, Public Defender, of Rockford, and John McNamara, Assistant Public Defender, for appellants.
    William R. Nash, State’s Attorney of Winnebago County, of Rockford, and Daniel D. Doyle, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendants appeal from a conviction of robbery after a jury trial, and a sentence of two (2) to ten (10) years.

The defendants raise questions on appeal as to the giving of an instruction on “Flight,” and as to the identification of the defendants.

There was testimony that on April 30, 1967, at approximately 6:45 p. m. Stephen Saladino was working in his package liquor store, which adjoined a lounge and restaurant, when two men entered. He had noticed them walking around the store and, after a period of time, he had noticed them coming back “hugging the building line.” He had also noticed them walking across the street on a previous day. When they came into the store on April 30th, one man, pointed out by Saladino as defendant Hurley, went to the counter and announced “This is a hold up.” The other man grabbed Saladino by the throat and a struggle ensued. Saladino worked loose and called for help into the lounge area. The man Saladino identified as defendant Beaver started out the door with three cartons of Lucky Strike Cigarettes, dropping one in the store, and knocking the door glass out when he pushed the front door rather than pulling it.

Saladino’s wife came running out of the office and was knocked down by the man still in the store, who then attempted to open the cash register. Saladino chased the man out the store, striking him with wine bottles. The police arrived at this time and Saladino directed the officer to an adjacent alley in the direction he testified he had seen both men go. Two men were observed at the end of the alley, about 450 feet from the Saladino store. The officer was in uniform but in an unmarked car with an unlighted dome light.

Saladino testified that the officer called on the men to halt and one of the men headed toward a garage and then turned and headed back to the police car, where both men denied the robbery and stated they had purchased two cartons of Lucky Strikes in their possession at a supermart. He noticed blood on their hands. He identified the men to the officer as the same men who had robbed his store.

The officer testified that the defendants ran only a “very few feet” before he halted them. He also testified to the blood on one defendant’s hands.

Saladino positively identified both defendants at the trial. Mrs. Saladino could only identify defendant Hurley as the man who knocked her down.

Defendants testified at the trial, denying they were in the store. They explained that whatever movement they made in the alley was before they knew of the identity of the police officer and for the purpose of avoiding being run over.

We find that no reversible error was committed which would justify a reversal of the judgment below.

The point urged by defendants that no lineup was conducted and the pointing out of the excited condition of the witness Saladino and the inability of he and his wife to describe clothing worn by the robbers, in detail, go to the weight of the identification testimony only, and the testimony is not so unsatisfactory that it creates a reasonable doubt of guilt. People v. Tunstall, 17 Ill2d 160, 163, 161 NE2d 300 (1959); People v. Cox, 22 Ill2d 534, 539,177 NE2d 211 (1961).

Defendants complain of an instruction offered by the People and given over objection.

“PEOPLE’S INSTRUCTION NO. 12.
“The Court instructs the jury that the flight of a person immediately after the commission of a crime, if you find from the evidence that the defendants, or either of them, fled, or after a crime has been committed with which they are charged, is a circumstance in establishing their guilt, not sufficient in itself to establish guilt, but a circumstance which the jury may consider in determining the probabilities for or against them — the probabilities of their guilt or innocence. The weight to which that circumstance is entitled is a matter for the jury to determine in connection with all the facts called out in the case.”

They argue that there is no evidence that defendants “fled” either immediately after the commission of a crime or after a crime had been committed with which they are charged. They further argue that “Flight” should have been further defined so that the jury would have been informed that an intentional evasion was involved.

No instruction further defining “Flight” was tendered by defendants. Moreover, we believe that the word is commonly understood as connoting evasive action rather than a mere leaving of the scene. The evidence was sufficient here to make the instruction applicable even though defendants denied their presence at the robbery scene and explained their movements preceding their arrest in an exculpatory manner. People v. Autman, 393 Ill 262, 266, 65 NE2d 772 (1946); People v. Bielecki, 89 Ill App2d 41, 47, 232 NE2d 238 (1967). Proof of flight did not have to be beyond a reasonable doubt since it was, at most, an incriminating circumstance and not a material element of proof. People v. Alexander, 77 Ill App2d 151, 157, 222 NE2d 172 (1966).

If the jury believed that the defendants were correctly identified as the robbers, then the breaking out of the glass in the door, the movement of first one and then the other of the men to an alley, the finding of the defendants in the alley within minutes, and their actions in the alley which the jury could reasonably infer as evasive acts, all constituted a connected chain of circumstances showing complicity in the crime. In any event, if the jury believed the identification testimony the jury would not need the circumstances of flight to be convinced that the defendants were the robbers; and if unnecessary, the instruction was not prejudicial. See People v. Agnello, 22 II12d 352, 362,176 NE2d 788 (1961).

The judgment and sentence of the Circuit Court are affirmed.

Affirmed.

ABRAHAMSON, P. J. and MORAN, J. concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Walter Groves, Defendant-Appellant.
    Gen. No. 51,987.
    First District, Third Division.
    October 10, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul Brauner 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 Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, Walter Groves, was indicted for murder. A jury found him guilty and he received a 15 to 25 year sentence in the penitentiary.

On March 29,1966, at 7:30 a. m., Jessie Everett and her sister, Mildred Bryant, were waiting for a bus on the corner of 31st Street and Indiana Avenue, Chicago. Mrs. Bryant saw Groves, whom they both knew, across the street. He started toward them and pulled a gun from under his jacket. She warned her sister and they both ran. A shot was fired as Groves followed them through a small park. At the end of the park Mrs. Everett tripped and fell. Groves kneeled over her and shot her in the head.

Mrs. Bryant was 12 feet away. Groves chased her, pointed his gun at her and threatened to kill her. By this time a crowd had gathered and a police officer arrived on the scene. He saw Mrs. Everett’s body and the defendant standing nearby with a gun in his hand. As the officer approached, the defendant handed him his gun and said, “Yes, I shot her.”

The sole issue on appeal is Groves’ sanity. He makes no contention as to his competency to stand trial but argues that there was a reasonable doubt of his sanity at the time of the crime.

The evidence disclosed that Groves met Mrs. Everett in July of 1965 at their place of employment. She asked him to take a room at her home which he did, paying $25 the first week, then living like one of the family, sharing expenses and duties thereafter. On March 17, 1966, they had a quarrel over $1,800 which Groves claimed was missing from a drawer. Groves testified that when asked about it, Mrs. Everett said she had the money and would return it. Upset, Groves left the house.

He returned on the 19th of March. He testified that a tenant who was present told him to leave so he rushed out. According to Mrs. Everett’s daughter, Groves threatened her and her mother with a meat cleaver. Her mother ran from the house and the tenant took the weapon from Groves. That night he was arrested and released on bail. After the 19th, Groves said he walked the streets, drank coffee and catnapped in all-night cafes. He called Mrs. Everett on the phone and asked if he could come back but she said no. He also asked for his clothes and money. In one conversation a man told him that he had his money and to quit pestering Mrs. Everett.

On the morning of March 29th Groves said he was standing outside a cafe when he saw Mrs. Everett get off the bus. “Everything turned white and red,” and he could not remember what he did. His next memory was of waking up in jail and hearing an officer tell him to hand over his belt and shoestrings.

At the trial there was testimony relevant to sanity from lay witnesses, the defendant and two psychiatrists. Mrs. Everett’s daughter testified that she saw Groves between 50 and 100 times from November 1965 until March 1966. His behavior on these occasions was normal and, with the exception of March 19th, there was nothing unusual when he became angry. The police officer who arrested the defendant testified that he was cooperative. Another officer testified that on the morning of the 29th he interrogated the defendant at the police station, that his answers to questions were responsive and there was nothing unusual about his appearance.

Groves testified that he was 55 years of age, that he could not read or write but could sign his name. He said that he was born in Mississippi. He never met his parents but lived with his sister until the age of seven when he was given to a white farmer as a laborer. He worked in the fields by day and made whiskey at night. At the age of 13 he ran away. About this time he was hit on the head and had suffered headaches ever since. After leaving the farm he hoboed until the age of 18 when he obtained a job in a laundry in Louisiana. His employer taught him the trade and took him into his home, treating him as his own son. Two years later the employer died and left him $5,000. Subsequently, he was taken in by another Louisiana family. He told the housewife about his money and one day when he returned home, the money and the woman were gone.

He resumed his hoboing and in 1949 came to Chicago and worked for three years. Then he held up a tavern, was arrested and convicted, and spent nearly seven years in prison. After his release he went to California where he was accused of attempting suicide by hanging. He denied trying to kill himself but reported that his wife, stepdaughter and a doctor said that he did. He returned to Chicago in July 1965.

Groves was examined by two psychiatrists. Dr. David Rothstein, a psychiatrist in private practice, examined him at the County Jail on June 23, 1966, for one and one-half hours. Dr. William Haines, Director of the Behavior Clinic of the Criminal Court of Cook County, examined him on June 21, 1966, for approximately 45 minutes.

Dr. Rothstein testified that the defendant cooperated and responded truthfully. He determined that the defendant had an immature, inadequate personality — inadequate to handle the responsibilities and stresses of ordinary life. He considered this a mental defect which resulted from a lack of normal home life and from some inherent defect in his biological makeup. According to the doctor, these conditions were quite severe and, because of the defect, he lacked substantial capacity to conform his conduct to the requirements of the law.

Dr. Haines also found the defendant cooperative and responsive. He said that he was illiterate and diagnosed his condition as that of a sociopathic personality. He concluded that the defendant could conform his conduct to the law and that he appreciated the criminality of his behavior.

The Criminal Code defines insanity as follows:

“ (a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
“(b) The terms ‘mental disease or mental defect’ do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.” Ill Rev Stats 1965, c 38, § 6-2.

The law presumes all men to be sane. People v. Robinson, 22 Ill2d 162, 174 NE2d 820 (1961); People v. Conrad, 81 Ill App2d 34, 225 NE2d 713 (1967). The defense of insanity at the time of a crime must be raised at the trial; once evidence of insanity is introduced, the presumption of sanity does not prevail and the burden falls on the State to prove beyond a reasonable doubt that at the time of committing the crime the accused was legally sane. People v. Le May, 35 Ill2d 208, 220 NE2d 184 (1966).

The issue of sanity is a question of fact for the jury. People v. Ford, 39 Ill2d 318, 235 NE2d 576 (1968); People v. Allen, 37 Ill2d 167, 226 NE2d 1 (1967). A reviewing court will not disturb the finding of the jury unless it is so palpably against the weight of the evidence as to indicate that the verdict was based on passion or prejudice or otherwise leave a reasonable doubt of the defendant’s responsibility. People v. Thomas, 409 Ill 473, 100 NE2d 588 (1951).

The expert and lay testimony presented by the State, and the facts of the case itself, sustain the jury’s conclusion that Groves appreciated the criminality of his conduct and was able to conform his conduct to the requirements of the law. The evidence proved that the killing of Mrs. Everett was deliberate. Groves lived at her home and worked where she did; he knew the time she went to work and where she transferred buses to go to her place of employment on west 31st Street. Armed with a gun, he waited at the intersection for her to arrive. When she did, he pursued her, fired one shot and then, as she stumbled, knelt beside her and fired another into her head. He paid no attention to Mrs. Bryant until he had killed Mrs. Everett; he then turned upon her saying: “Now I’m fixing to kill you.” The singling out of Mrs. Everett, the statement to Mrs. Bryant, the yielding of his gun upon the arrival of the police and the immediate statement to the officer that he had shot Mrs. Everett showed that he knew the nature and gravity of his act.

The sanity of the defendant was proved beyond a reasonable doubt and the judgment of conviction will be affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.