author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. McCray Hughes, a Minor, Defendant-Appellant.
    Gen. No. 53,341.
    First District, First Division.
    April 6, 1970.

      Stanley J. Sacks, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

McCray Hughes, a 15-year-old boy, was found to be a delinquent by the Juvenile Division of the Circuit Court of Cook County on April 26, 1968. The amended petition alleging delinquency charged that he “committed the offense of Unlawful Possession of a Firearm in that he knowingly carried on his person a firearm described as a zip gun of a size that may be concealed on his person in violation of chapter 38, § 24-3.1 (a) (1), Illinois Revised Statutes.” At the delinquency hearing the State introduced into evidence a so-called zip gun consisting of a piece of metal with a piece of tape and a rubber band, and the trial judge, without any further evidence, determined it to be a “firearm.” The finding of “delinquency” was based on “unlawful possession of a firearm,” as charged in the amended petition.

On appeal the issues presented for review by the respondent are: (1) Did the court err when it did not require the State to prove that the instrument in question was operable and thus a “firearm” within the meaning of the statute? (2) Are the protections against unlawful search and seizure contained in the Federal and Illinois Constitutions applicable to juveniles in delinquency proceedings? (3) Did the court err in denying defendant’s motion to suppress evidence?

The record shows that on March 19, 1968, the trial court heard and denied respondent’s pretrial motion to suppress the zip gun as evidence. At the hearing on this motion Officer Sumner of the Chicago Police Department testified that on February 15, 1968, he saw respondent walking down the street in the company of another youth. His attention was drawn to respondent when he saw him place a shiny metallic object in his pocket. He believed the object was a knife about four inches in length, but due to darkness all he saw was a silver-looking object. The police officer got out of his car, stopped respondent and told him, “You are under arrest.” He then searched respondent and did not find a knife but did find what is commonly known as a “zip gun.” After both sides rested, the court denied the motion and continued the matter for trial.

On April 26, 1968, the delinquency petition came on for trial. It was stipulated that the testimony of the arresting officer would be the same as that presented at the hearing on the motion to suppress and that the same testimony should be allowed to stand as evidence at the trial. The State then introduced into evidence as an exhibit the “zip gun” and rested. The respondent then moved to dismiss the petition on the basis that the amended charge was possession of a firearm, and that there had been no testimony at either hearing that what was introduced in evidence was in fact a firearm and capable of being fired. The trial court heard the arguments of counsel and, after examining the exhibit, found it was a “firearm,” stating, “I am taking judicial notice merely from the fact that I am holding it in my hand, looking at it.” The court also remarked, “I would not require the Chicago police to fire in a test an obviously dangerous weapon which is more likely to cause injury to the person firing it than the person it is fired against.” The court then made a finding of delinquency based on “unlawful possession of a firearm.”

At the outset, and without discussion of the authorities submitted, we agree with respondent that all constitutional protections against unlawful searches and seizures are applicable to juveniles in delinquency proceedings. Kent v. United States, 383 US 541 (1966); In re Gault, 387 US 1 (1967).

Respondent contends that the search and seizure incident to his arrest were unlawful because reasonable grounds for his arrest did not exist at the time he was arrested within the meaning of Ill Rev Stats, c 38, § 107-2. Respondent maintains that “the primary question this Court must consider is when did the arrest take place.” He points out that the arrest occurred when the uniformed officer alighted from his squad car and told defendant he was under arrest, and at this time no reasonable grounds existed for defendant’s arrest because all the police officer had seen was a bright shiny object. People v. Accardi, 58 United Auto Workers App2d 364, 208 NE2d 43 (1965); People v. Mirbelle, 276 Ill App 533 (1934); and People v. Pruitt, 79 Ill App2d 209, 223 NE2d 537 (1967).

The State contends that the arresting officer acted properly and had reasonable grounds for arresting respondent. The State notes that the police officer testified that he observed respondent put what appeared to be a shiny metal object into his pocket, and that he believed it to be a knife with a blade some four inches in length. The State also notes that the Municipal Code of Chicago, § 193-30, prohibits the carrying on any person of any knife, the blade of which is more than two and one-half inches in length. The State also asserts that when a lawful arrest has been made, the officer may conduct a search incident to the arrest for his own protection or to discover fruits of the crime. See People v. Peak, 29 Ill2d 343, 346,194 NE2d 322 (1963).

After examining this record in the light of the guidelines set forth in current search and seizure authorities, we find that the trial court properly denied respondent’s motion to suppress. In People v. Ivory, 38 Ill2d 339, 231 NE2d 438 (1967), it is said (p 343):

“ ‘It is certain that mere suspicion, common rumor or report do not afford probable cause for arrest, . . . yet, at the same time, reasonable cause means something less than evidence which would result in a conviction, and it is also established that reasonable cause may be founded upon evidence that would not be admissible at the trial. . . . Again, it has been stated that existence of reasonable cause which will justify an arrest without a warrant depends upon “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” . . . But at the same time it has been observed that police officers “often must act upon a quick appraisal of the data before them, and the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to catch criminals.” ’ ”

In the instant case the arresting officer testified that he believed that respondent was carrying a knife of illegal length. The officer was acting under a “quick appraisal” of the data before him, and even though his belief was erroneous, it was reasonable in view of the similarity between a knife and the zip gun in question. Because the arrest was justified, so, too, was the search incident to it, even though it disclosed a weapon of a nature different from what the officer thought it to be. Ill Rev Stats, c 38, § 108-1.

Respondent next contends that the trial court erred when it took judicial notice that the zip gun was an operable weapon and thus a “firearm” within the meaning of chapter 38, § 24-3.1 (a) (1), which provides:

“ (a) A person commits the offense of unlawful possession of firearms or firearm ammunition when:
“(1) He is under 18 years of age and has in his possession any firearm of a size which may be concealed upon the person.”

He asserts “that a piece of metal with tape and a rubber band around it is a firearm is not a fact or proposition of generalized knowledge or so universally known that the court could properly take judicial notice of it.”

Respondent further contends that for the State to sustain its burden of proof that respondent carried a “firearm,” the State had to prove that the weapon was capable of ejecting a projectile. Respondent points out that although there are no Illinois decisions regarding what is a firearm, guidelines are to be found in the rule that criminal statutes must be construed strictly against the State. Citations include United States v. W. T. Rawleigh Co., 267 F2d 180 (1959); People v. Haskins, 190 Misc 888, 76 NYS2d 636 (1948); and Lipscomb v. State, 130 Wis 238, 109 NW 986 (1906).

In People v. Haskins, the New York statute prohibiting the carrying and use of a dangerous weapon was interpreted as follows (p 637):

“This section, manifestly, seeks to prohibit the use and possession of dangerous weapons. What was found on the defendant was, of course, a weapon, but, query, was it a dangerous one? It is difficult, if not impossible, to adopt any hard and fast rule. This court is of the opinion that a weapon is dangerous within the meaning of the statute either when it can be fired or when, with reasonable preparation, it can be made effective and fit for the use for which it was manufactured.”

In Lipscomb v. State, defendant was on trial for assault with intent to rob, being armed with a dangerous weapon. The court stated (p 988):

“It is an essential element of the crime of which the defendant was convicted that he be armed with a dangerous weapon. An empty revolver merely pointed at a person, and not used to strike with, is not a dangerous weapon, however, much the person at whom it is pointed may be put in fear.”

The State argues that the trial judge did not take “judicial notice” that the gun was a firearm but instead made a “judicial determination” as the trier of the fact, and that the trial judge stated for the record, “I, as trier of the facts, made a judicial determination and I wish to correct the record. I merely took judicial notice in the legal sense of judicial notice. I made a judicial determination as I looked at the weapon, the exhibit, that it, in fact, was a dangerous weapon.”

The State further argues that evidence that the exhibit was in operating condition was not necessary to show that the instrument was a firearm. The State asserts that the exhibit had a chamber and a firing pin designed to project a bullet, and that “it does not appear of record that the gun found on the person of the defendant at the time of his arrest would not fire.”

The State also asserts that the majority of jurisdictions hold that the fact of whether or not a gun is loaded does not change its character as a dangerous weapon or firearm. State v. Ashland, 259 Iowa 728, 145 NW2d 910 (1966); Couch v. Commonwealth (Ky), 255 SW2d 478 (1953). The State also notes that chapter 38, § 83-1.1 of the Illinois Criminal Code, which deals with the identification of firearms, provides:

“For the purposes of this Act:
“ ‘Firearm’ means any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas . . . .”

After examining this record we find that whether the court reached its conclusion as a result of “judicial notice” or after making a “judicial determination” that the exhibit was a dangerous weapon, it was not necessary for the State to prove that the instrument was in an operable condition. We perceive no difference between the meaning of “firearm” in section 24-3.1 or in section 83-1.1 of the Criminal Code, and thus it was sufficient to show that the exhibit was “designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas.” As trier of the fact, it was not improper for the trial judge to examine the instrument and determine whether it was a “firearm.” We conclude that the evidence submitted was sufficient to support beyond a reasonable doubt the trial court’s finding of “unlawful possession of a firearm.”

We find no ground on which to disturb the finding of delinquency made by the trial court, and for the reasons given that judgment is affirmed.

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Freddy L. Jones, Defendant-Appellant.
    Gen. No. 53,227. (Abstract of Decision.)
    First District, First Division.
    April 6, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by JUSTICE ADESKO. Not to be published in full.


author: MR. PRESIDING JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James La Rocco, Defendant-Appellant.
    Gen. No. 52,831.
    First District, First Division.
    April 6, 1970.

      Robert F. Meersman, of Mount Prospect, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, James La Rocco, was charged in a misdemeanor complaint before a magistrate with the offense of public indecency in violation of chapter 38, section 11-9 (a) (3) of the 1967 Ill Rev Stats. After a bench trial, the defendant was found guilty as charged and sentenced to the Illinois State Farm for a term of sixty-five days.

From this conviction and sentence the defendant appeals.

It is contended by the defendant that the magistrate erred in denying the defendant’s motion for a mistrial and his motion for a new trial and that defendant was denied due process of law because the magistrate denied his motion for a continuance for time to prepare for a presentence hearing on aggravation and mitigation.

The defendant was represented at the trial by private counsel of his own choice. However, no stenographic record was made of the proceedings. The case comes to this court on a report of proceedings agreed to by the defendant’s attorney and the State’s Attorney as a bystander’s report.

Miss Jan Ewing, a sixteen-year-old high school student, testified that at 7:45 p. m. on July 26, 1967, she was standing at the intersection of Main Street and Memory Lane in Mount Prospect with her friend, Marcia Bjomseth. A blue 1965 Mustang stopped next to them on the street, and the driver asked directions to a certain park. Miss Ewing walked over to the car to answer his question and observed that he was naked below the waist. Marcia Bjornseth testified that she looked through the rear window and observed that the driver was wearing no trousers. Jan Ewing called the police three minutes after the incident. She testified further that she was taken to the defendant’s home five days later by the police and there she positively identified him as the lone occupant of the car. Officer Robert Barone testified that Miss Ewing identified the defendant at his home.

For the defense several witnesses testified that the defendant was at the home of Mrs. Edward Schneider in Arlington Heights from between 7:15 and 7:30 p. m. until midnight on July 26th watching a televised baseball game. The defendant testified that he did own a blue 1966 Mustang, but stated that at the time in question he was at Mrs. Schneider’s home and not at the location testified to by Miss Ewing. He denied having committed the offense with which he was charged.

Initially, the defendant contends that the trial judge erred in not declaring a mistrial or granting a new trial. Before the trial, the defense filed a motion for a bill of particulars including a request that any and all statements of the defendant, complainant and witnesses, be delivered to him. An order was entered upon the prosecution to particularize certain information and produce the requested documents. The police department of Mount Prospect then informed the defendant by letter that “no written statements were taken from the victim, or offender or witness.” It appears that at the trial, Sergeant Joseph Bopp, a witness for the prosecution, produced a written statement from the files of the Police Department. The defense thereupon moved for a mistrial for failure to supply them with the statement as ordered. This motion was overruled. Counsel for the defendant then objected to its use. He was directed to examine the statement and proceed, but he refused to look at it. We must note that there is a substantial difference between the statement of facts in the defendant’s brief and the bystander’s report. Reference to matters outside the record is improper and cannot be considered by us. There is nothing in the record to show that the written statement produced by the officer was a “written statement from the victim, offender or witness.” Defense counsel was given an opportunity to examine the statement for possible impeachment, but he did not attempt to do so or to have the document identified in the record so that we would have the opportunity to learn of its contents.

This trial was conducted by a magistrate and not before a jury. It is presumed that the trial judge considered only competent evidence in reaching his decision. People v. Robinson, 30 Ill2d 437, 197 NE2d 45. The decision to declare a mistrial rests within the discretion of the trial court and will not be reversed unless there are facts upon review that will demonstrate that there has been an abuse of discretion. The record is devoid of any showing that the defendant was prejudiced by Sergeant Bopp’s testimony or that there was any substance to the claim that the answer to the request for particulars was untruthful so as to require a mistrial. We find no merit to the contention that the trial court erred in overruling the defendant’s objections to certain evidence or that the trial court erred in denying the defendant’s motions for a mistrial or a new trial.

There remains for consideration whether the defendant was given adequate time to prepare for a hearing in aggravation and mitigation. The record reveals that after the trial judge found the defendant guilty, the defendant’s counsel moved for a recess for several days to allow for the preparation of the aggravation and mitigation hearing prior to sentencing. This motion was denied, and the court proceeded with an immediate hearing and sentenced the defendant.

The State argues that the record is devoid of any showing of prejudice to the defendant. Nothing was stated in aggravation by the State. It is argued that the defendant’s alibi witnesses and his mother were present at the trial and available to testify at the hearing. The State contends that defendant’s counsel had ample opportunity before the case came to trial to investigate the defendant and that he cannot say that he was unprepared. We do not agree.

The Criminal Code provides for a hearing for the purpose of determining- the sentence to be imposed. Ill Eev Stats 1967, c 38, § 1-7 (g). Every defendant is entitled to prepare and present evidence as to his moral character, life, family, occupation and criminal record which should be considered in mitigation. We have pointed out that such a hearing is mandatory unless understandingly waived which was not done in this case. People v. Sessions, 95 Ill App2d 17, 238 NE2d 94. As we stated in Sessions:

A hearing in aggravation and mitigation is especially important when, as in the instant case, the offender is eligible for probation because rehabilitation is more likely to result from a carefully supervised period of probation than it is from a term in the penitentiary. 95 Ill App2d at 27,238 NE2d at 100.

A defendant in any criminal case is entitled, under the law, to a reasonable time and full opportunity to prepare for his trial and that right is guaranteed to him by the constitution. People v. Humbleton, 399 Ill 388, 393, 78 NE2d 293, 296. He is also entitled to a reasonable time to prepare for a hearing in aggravation and mitigation. We are of the opinion that the magistrate abused his discretion in not granting the motion for a continuance for the purpose of preparing for such a hearing.

Accordingly, we affirm the judgment of the court that the defendant was guilty as charged, and we vacate the sentence and remand the cause to the trial court to afford the defendant a full opportunity to a hearing on aggravation and mitigation.

Judgment affirmed, sentence vacated and remanded with directions.

MURPHY and ADESKO, JJ., concur.


text:
    Nick Federenko, Plaintiff-Appellant, v. Builders Plumbing Supplies, Inc., a Corporation, Defendant-Appellee.
    Gen. Nos. 52,346, 52,792, 53,001. (Consolidated.)
    First District, First Division.
    April 6, 1970.

      Cooney & Stenn, of Chicago (William J. Harte, of counsel) , for appellant.
    Berchem, Schwantes & Thuma, of Chicago (James O. Latturner, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Plaintiff sued for injuries allegedly suffered as a result of defendant’s wilful violation of the Structural Work Act of Illinois. Defendant answered the complaint in due course. On January 17, 1967, the action was dismissed for want of prosecution due to the failure of plaintiff or his attorney to attend three pretrial conferences. On February 20, 1967, the trial court denied a motion to vacate the order of dismissal filed within thirty days. Plaintiff appealed from both orders (appeal No. 52,346). Under the provisions of section 24 (a) of the Limitations Act, plaintiff refiled his suit within one year, and on October 4, 1967, the trial court dismissed the second action because section 24(a) was not applicable to a dismissal for sanctions and under Supreme Court Rule 273 the dismissal of the first suit operated as an adjudication on the merits. Plaintiff appealed from this order (appeal No. 52,792). After plaintiff’s original cause of action was dismissed, plaintiff filed a petition pursuant to section 72 of the Civil Practice Act to vacate the original dismissal order. The plaintiff appeals from the denial of this petition (appeal No. 53,001).

The separate appeals taken from each of these orders were consolidated here for hearing. For convenience and clarity the appeals are disposed of separately.

APPEAL NO. 52,346

On July 12, 1963, plaintiff filed his complaint against defendant, alleging that defendant failed in its duty under the Structural Work Act to provide him with a safe place to work. Plaintiff had originally retained the law firm of Viner & Hertzberg (later known as Sussman & Hertzberg) to represent him in the action. Defendant filed, its appearance and answer on August 1, 1963, and the case was called for a pretrial conference before Judge James D. Crosson on December 12, 1966, notice being published in the Chicago Daily Law Bulletin. Counsel for defendant appeared at the pretrial conference, but no one appeared for plaintiff and, at the request of defendant’s attorney, the pretrial conference was continued until December 27,1966.

On December 12, 1966, defendant sent a letter to plaintiff’s attorneys of record, Viner & Hertzberg, notifying them of a new date and requesting that they be present so that the pretrial in the matter could be held. On December 15,1966, the law firm of Cooney & Stenn sent a letter to defendant’s attorneys, as follows:

“We are handling this case. Can you get the case back on the trial call for December 27 so we have time to study the file.”

Again on December 27,1966, no one appeared for plaintiff, and defendant’s attorney explained to Judge Crosson what had happened. Judge Crosson, noting that the firm of Cooney & Stenn were not attorneys of record and further noting that no one had appeared for plaintiff, indicated to defense counsel that he wanted to dismiss the case. Defendant’s counsel told him that someone representing the plaintiff would be present at the next pretrial, January 17, 1967. On January 17, 1967, again no one appeared for plaintiff at the pretrial conference, and the court entered the following order:

This cause coming on to be heard upon the regular call of cases for pretrial; the Court finds that it has jurisdiction of the parties hereto and the subject matter hereof; the plaintiff having failed to answer said call in person or otherwise appear in accordance with order or rules of pretrial procedure;
IT IS HEREBY ORDERED THAT the above entitled cause be and the same is hereby dismissed for want of prosecution under the provisions of Supreme Court Rule 219 (c).

On that day counsel for defendant seA a letter to Cooney & Stenn and to Yiner & Hertzberg, informing them that Judge Crosson had entered an order of dismissal and enclosed a copy.

On February 7, 1967, and within thirty days from the entry of the order of dismissal, Richard Neville, an attorney from the office of Cooney & Stenn, filed a verified “Petition” within thirty days to reinstate the cause and to assign it for a date certain for a further pretrial hearing. The reasons given for the failure to attend the pretrial conferences were stated in the “Petition” as “due to a misunderstanding as to the responsibility between the two law firms with regard to handling the pretrial discovery of the case.” Defense counsel filed a verified answer to the petition, outlining what defense counsel had experienced in the three pretrial hearings and opposed the petition not “because of the inconvenience and cost to them” but because counsel felt the plaintiff’s attorneys had shown an “utter disregard for the pretrial procedure as well as the Court itself.”

A hearing was had on the petition to reinstate the cause on February 20, 1967, and the court denied the petition. On March 17, 1967, plaintiff filed notice of appeal from this order and the original dismissal order (appeal No. 52,346).

On appeal plaintiff contends that the trial judge abused his discretion in denying plaintiff’s motion to vacate within thirty days under § 50(6) of the Civil Practice Act, which provides:

“The court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable.”

Plaintiff argues that this section has been utilized with liberality “where it appears justice will be promoted thereby.” He notes that the sanction imposed by Judge Crosson seems unreasonably harsh because there was no prejudice to defendant. Plaintiff further states that “Section 50(6) states that the vacation may be made on whatever terms and conditions that shall be reasonable. Plaintiff’s attorneys not only suggest but pray for an assessment of whatever costs, attorney fees, etc., the Court may desire to tax.”

Plaintiff maintains that there was no “utter disregard for the pretrial procedure” in missing the pretrial calls. He notes the first two pretrial calls were missed due to the “press of litigation” and due to the misunderstanding between the two law firms, while the third pretrial call was missed because of the illness of a secretary.

Defendant argues that the trial court did not abuse its discretion in dismissing the case. Defendant asserts that an abuse of discretion by the trial court will not be presumed by a court of review, and that the burden is on plaintiff to show such abuse, if any. Included among the authorities is Ewert v. Ewert, 41 Ill App2d 161, 190 NE 2d 147 (1963), where the court said (p 166):

“Section 50(6) of the Civil Practice Act provides that ‘the court may in its discretion, ... on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable. Whether or not a court should vacate and set aside judgments and orders previously made generally rests in the sound discretion of the court, depending on the facts presented.’ . . . And it is only where there has been an abuse of discretion that a reviewing court will interfere.”

Defendant notes that the only reason given for missing all three pretrials and particularly the one on January 17, 1967, when the case was dismissed, was that the case had recently been transferred from the law firm of Viner & Hertzberg to the firm of Cooney & Stenn, and that “due to a misunderstanding as to the responsibility between the two law firms with regard to handling the pretrial discovery of the case, neither firm appeared at any of the pretrial hearings.”

The defendant further argues, “The plaintiff in this case makes the traditional argument that the court should be liberal in vacating a dismissal order, the sanction imposed seems unreasonably harsh and the plaintiff is entitled to his day in court. However, when these arguments are applied to the facts of this case they become merely unsubstantiated and empty slogans. The same arguments have been rejected by the Appellate Courts in many instances when the fact situation favored the appellant far more strongly than it does here.”

Defendant finally asserts, “A consideration of the facts shows first, the plaintiff has presented no excuse whatsoever for missing at least the last two pretrial conferences; second, the plaintiff has shown an utter disregard for the pretrial procedure as well as the Court itself; and third, the plaintiff has presented no compelling reason or argument for vacating the dismissal order. Considering the circumstances of this case the trial court was judicious and justified in denying the plaintiffs motion to vacate and was certainly well within the limits of its discretion. We submit that any of these three factors standing alone would warrant an affirmance of the trial court's decision. The combination makes an affirmance clear and unquestionable.”

At the outset and concerning pretrial conferences, we vigorously agree with defendant that for a pretrial conference to have any benefit, all parties must appear before the court, and “if one party fails to attend the entire purpose of the pretrial is destroyed, and not only are the beneficial aspects of such a conference avoided but it in itself becomes an additional drag upon the administration of justice.” In Fennema v. Vander Aa, 93 Ill App2d 162, 236 NE2d 409 (1968), this court said (p 166):

“A pretrial conference is primarily a procedure to simplify and speed up the trial. It encourages the parties to agree to stipulations of fact and to the admission of documents and generally formulates the issues. The conference frequently leads to a settlement through the aid of the pretrial judge. The conference should not be used for the purpose of summarily dismissing a cause when the plaintiff fails to appear, or, on the other hand, for the purpose of striking the defendant’s answer and permitting the plaintiff to prove up his claim when the defendant fails to appear.”

After considering the various authorities and guidelines which have been laid down in order to prevent undue delays in the disposition of pending cases, and to avoid congestion in the progress of trial calendars, and to eliminate the disregard exhibited by some attorneys for pretrial hearings, we conclude that the guidelines set forth in the following cases should be applied here.

In Elfman v. Evanston Bus Co., 27 Ill2d 609,190 NE2d 348 (1963), it is said (p 615):

“Under all of the circumstances, it is our opinion that the amended petition and its supporting affidavits presented a situation which addressed itself to the equitable powers of the trial court and that, in justice and fairness, defendant should be given an opportunity to appear and defend on the issue of damages.”

In McLaughlin v. McLaughlin, 83 Ill App2d 160, 226 NE2d 406 (1967), it is said (p 162):

“Whether such purpose is best accomplished by setting aside the judgment or refusing to set aside the judgment depends on the conduct of the parties, the relative hardship, prejudice or injustice which may result and the alternatives which are available to assure and promote compliance with legal procedure.”

In Ryan v. Monson, 47 Ill App2d 220, 197 NE2d 265 (1964), it is said (p 231):

“While we realize the problems besetting a conscientious and industrious trial judge in his desire to dispose of cases, nevertheless, we feel that had the trial judge vacated the ex parte judgment upon condition that the defendant compensate the plaintiff’s attorney for his time and services, and for expenses incident to the attendance of plaintiff’s witnesses, the ends of justice would have been more readily achieved.”

In Mieszkowski v. Norville, 61 Ill App2d 289, 209 NE2d 358 (1965), it is said (p 297):

“The entry of a default judgment against a party litigant is a harsh and drastic action. Frequently, the default is visited upon the litigant, as a vicarious punishment, for the acts or omissions of his counsel. While we recognize that rules of court must be observed if dockets are to be kept current, yet courts must, in a proper case, yield the procedural ex-actitudes to the more basic rules of fundamental fairness.
“. . . Rights should be determined by default only as a last resort.”

Although, as asserted by defendant, the instant record indicates that plaintiff’s attorneys have shown disregard for pretrial procedure and have hampered the efforts of a conscientious and industrious trial judge, we think the dismissal of plaintiff’s action in this case visited a harsh punishment on plaintiff for the acts and omissions of his counsel. In justice and with fundamental fairness, we think plaintiff should be given an opportunity to proceed on the merits of his action, provided the inconvenience and expenses of defendant and his attorneys are taken care of. Therefore, in accordance with the views expressed here, the cause is remanded with directions that the trial court determine such reasonable terms as may be appropriate conditions for the vacation of the dismissal order and, upon compliance by plaintiff, vacate the dismissal order and proceed with plaintiff’s action on its merits.

Because of the foregoing disposition of appeal No. 52,346, it is unnecessary for this court to consider the merits of appeals Nos. 52,792 and 53,001, and they are dismissed without prejudice. In view of the basis of the appeals, costs of the three appeals are assessed against plaintiff.

Appeal No. 52,346 is remanded with directions. Appeals Nos. 52,792 and 53,001 are dismissed without prejudice.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Collins and Bobbie Jones, Defendants-Appellants.
    Gen. Nos. 53,983, 54,001.
    First District, First Division.
    April 6, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

Willie Collins and Bobbie Jones were indicted for burglary. The defendants pleaded not guilty, and after a jury trial both were found guilty as charged. They were each sentenced to a term of not less than five years nor more than twelve years in the penitentiary.

The defendants separately appealed. The two appeals arise out of the same trial, present the same questions and were consolidated for oral argument and presentation to this court. The defendants contend that (1) there was a material allegation in the indictment that the ownership of the store alleged to have been burglarized was owned by Leonard Bloom, which was not proven, and (2) the sentences imposed were too severe.

The defendants make no claim that the evidence was insufficient to establish their guilt. On April 14, 1968, at 3:30 a. m., police officers went to the premises at 4449 S. Lake Park Avenue on the information they received in an ADT burglar alarm call that a burglary was in progress. They noticed the outside gates of a grocery store had been pulled apart and the glass of the door broken. With flashlights they found the two defendants inside the premises lying prone on the floor, and arrested them.

Leonard Bloom testified that he was formerly the owner of the supermarket, but it was incorporated, and at the time of the burglary he was president of the corporation. The business had been in his family for eighteen years. The sign on the store read “Park Food Mart, Incorporated.” They had closed the business in the middle of March and were trying to sell it. In the meanwhile the inventory had been liquidated as much as possible, but between $1,000 and $2,000 worth of canned goods were still on the shelves on the night in question. When Bloom left the business, the doors had been locked. He was called by police on the morning in question, and when he arrived at the store he saw the two defendants who had been arrested.

The indictment charges that the two defendants committed the offense of burglary in that “they without authority, knowingly entered into the store of Leonard Bloom, with intent to commit the crime of theft. . . .” The defendants argue that the evidence showed that the store was not owned by Mr. Bloom as charged in the indictment, but by a corporation of which he was president. It is urged that this was a material and fatal variance with respect to the ownership of the burglarized store. In support of this contention the defendants cite the cases of People v. Walker, 7 Ill2d 158, 130 NE2d 182; People v. Mosby, 25 Ill2d 400, 185 NE2d 152; and People v. Jamison, 92 Ill App2d 28,235 NE2d 849.

The facts in the case at bar and the aforementioned cases are dissimilar. In Walker, it appears that the trial was informally conducted with undue dispatch. It was alleged in the indictment that the burglarized property was the home of Anthony Wright. The only evidence bearing upon this allegation was the testimony of Mrs. Octavia S. Wright, who testified that certain articles taken in the burglary belonged to her husband without naming her husband. There was no testimony that Anthony Wright’s dwelling was burglarized. The cause was remanded for a new trial. In reversing the court stated:

The purpose served by alleging the name of the person or property injured is to enable the accused to plead either a former acquittal or conviction under the indictment in the event of a second prosecution for the same offense. 7 Ill2d at 161, 130 NE2d at 184.

In Mosby none of the witnesses testified to the ownership of property in the two allegedly burglarized premises. Because of the failure to prove the essential allegatians of ownership of the premises, both convictions were reversed, and the causes remanded. In Jamison, a burglary conviction was reversed and remanded because there was no evidence or mention made of two copartners named in the indictment. There was a total lack of any evidence of who, in fact, was in possession of the premises.

In People v. Knox, 98 Ill App2d 270, 240 NE2d 426, it was also contended that there was a fatal variance in the indictment which alleged that the burglarized tavern was the premises of the H & K Realty Co., Inc., a corporation, whereas there was no evidence that the firm was acting in any capacity other than as a mere rental agent. In affirming the conviction this court held that it was sufficient that the unrefuted testimony showed the property to be under the domain of the H & K Realty Company which was buttressed by evidence that the company was the first and only party notified that the burglary had occurred. Proof of possession and occupancy of the burglarized premises in the party whose possession is rightful as against the burglar is sufficient to sustain a conviction on a charge of burglary. Legal title need not be shown. People v. Foster, 30 Ill2d 106,195 NE2d 700.

In addition to allowing the defendant to adequately prepare his defense, there are generally two reasons for requiring the possession and occupancy of the premises to be stated in an indictment for burglary: (1) for the purpose of so identifying on the record that the premises alleged to have been broken into did not belong to the accused and (2) for the purpose of so identifying the offense as to protect the accused from a second prosecution for the same offense. In the present case, it was established that the defendants broke into a store which did not belong to them. The indictment and the evidence introduced and transcribed, a copy of which was given to the defendants, is sufficient, in our opinion, to enable the defendants to plead former conviction in bar of another prosecution for the same offense, even though the title to the store premises was held by a corporation and not by Mr. Bloom. The property was shown to be under the control and possession of Mr. Bloom, and he was the person who was notified by the police of the burglary and went immediately to the premises. He had been the manager of the business for the past seven years and was the president of the corporation; The fact that the store was owned by a corporation and not by Mr. Bloom was not such a variance under the facts and circumstances as to require a reversal and a new trial.

It is further contended that the sentences imposed on the defendants were too severe. In this connection we again examine the record to show the facts and circumstances which lead to the conviction of the defendants. The grocery store had been closed for about a month before the burglary, and there was no plan to reopen it. The inventory had been mostly liquidated. In the hearing on aggravation and mitigation it was disclosed that defendant Bobbie Jones, who was twenty-five years old, had received a $50 fine for resisting arrest in August, 1965. In 1966 he was convicted of petty theft, reduced from armed robbery, for which he received one year in the county jail. Defendant Willie Collins, who was twenty-six years old, received a fine of $100 in March, 1966, for unlawful use of a weapon. In October, 1966, he was convicted of attempt robbery and was sentenced to five years probation and six months in the county jail. In mitigation the record shows that Bobbie Jones had been working on the same job for seven months and Willie Collins had been working for the past eighteen months on the same job.

This court has the power to reduce sentences under Supreme Court Rule 615. (Ill Rev Stats 1969, c 110A, § 615 (b) (4).) The minimum sentence measures parole eligibility and the maximum sentence measures the length of time the defendant may be incarcerated. As stated in People v. Cooke, 117 Ill App2d 296, 254 NE 2d 293,295:

The purpose of modern-day penology is the rehabilitation of the offender. That sentence which has the greatest potential of restoring the offender to a useful and productive place in society while at the same time adequately punishing the offender for his misconduct and safeguarding the public from further offenses is the one which should be imposed.

We feel that the circumstances of the burglary and the fact that the defendants have been steadily employed warrant lesser sentences. Accordingly, the trial court’s sentence of not less than five years nor more than twelve years is reduced to not less than three years nor more than six years in the penitentiary for each defendant.

For the reasons stated, the judgment of conviction is affirmed. The sentence for each defendant is reduced to a term of not less than three years and not more than six years in the penitentiary.

Judgment affirmed and sentences modified.

MURPHY and ADESKO, JJ., concur.


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    Theresa Campo, Plaintiff-Respondent, v. Clark Theater and Ed Trinz, Ann A. Trinz, Bruce S. Trinz, James K. Trinz, Muriel Lubliner, Robert Lubliner, Bee Lubliner, Gladys Rubin, and Jack A. Winter, a Partnership, Defendants-Petitioners.
    Gen. No. 54,171. (Abstract of Decision.)
    First District, First Division.
    April 6, 1970.
    Simon & Weaver, of Chicago (James R. Mitchell, of counsel), for appellants; Anthony L. Russo, of Chicago, for appellee.
   Opinion by JUSTICE MURPHY. Not to be published in full.


author: MR. JUSTICE ADESKO

text:
    Rosetta Brown, Plaintiff-Appellant, v. Chicago Transit Authority, Defendant-Appellee.
    Gen. No. 53,900.
    First District, First Division.
    April 6, 1970.

      Herman & Tannebaum and Barry Goodman, of Chicago, for appellant.
    George J. Schaller, O. R. Hamlink, John E. Powers, and Jerome F. Dixon, of Chicago, for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Plaintiff brought suit to recover damages for personal injury as the result of a fall upon a stairway operated and maintained by the defendant, Chicago Transit Authority. The cause was submitted to a jury which returned a verdict for the plaintiff. Subsequently, the trial court granted defendant’s post-trial motion for a judgment notwithstanding the verdict. The plaintiff has ' appealed that order.

In seeking to reverse the trial court, plaintiff challenges the propriety of the trial court’s granting of the judgment notwithstanding the verdict and contends that sufficient evidence was presented by plaintiff to sustain the jury’s determination in her favor. Defendant argues that the trial court correctly sustained its motion because of the insufficient evidence to prove defendant’s liability. Alternatively, defendant argues for affirmance because of the alleged insufficiency of the plaintiff’s notice of claim, as required by statute.

The facts are that at about 10:00 p. m., on February 8, 1963, plaintiff was riding home on one of defendant’s “El” trains. She left the train at the station located at 40th and Indiana in Chicago. She walked from the platform and proceeded down the stairs. Plaintiff fell down while upon the stairs leading from the platform. Plaintiff’s testimony as to the occurrence was that she fell down about six steps. She stated she saw nothing prior to her fall, but observed “quite a bit of paper” when she looked up the stairs. According to her testimony, this paper was located on the step from which she fell. Plaintiff stated she used the same station everyday when she came home from work. She testified that on other days there were papers and objects on the stairs. It was established that it had snowed during the day in question, but there was no snow accumulation on the stairs. Plaintiff stated that it was wet on this particular evening. After testifying as to her injuries, doctor’s care and loss of work, the plaintiff established that after her fall a porter, asserted to be one of defendant’s employees, helped her up and took her to the ticket office. Plaintiff stated she was wearing overshoes on the night of the occurrence. On cross-examination plaintiff admitted she did not look at the particular step from which she fell down. She also stated she did not feel anything under her foot.

Defendant produced James Morris, who was the ticket agent on duty at the station where plaintiff fell on the night in question. The witness refreshed his recolleetian of the accident by reading over an accident report that he made out. Morris testified that plaintiff said she fell as a result of losing her balance and not because she slipped on any debris or paper. He further explained that the defendant’s policy for cleaning the station was for a porter to sweep the stairs every four hours. It was established that the porter was in the station sweeping when plaintiff fell.

The plaintiff contends that the court erred in granting defendant’s motion for judgment notwithstanding the verdict in violation of the rule announced in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967) . The Illinois Supreme Court announced the oft-quoted principle that “verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (P 510.)

Defendant also contends that the Pedrick rule was properly applied in this situation by the trial judge. The contention is that the evidence presented could not establish defendant’s liability, so that no verdict for the plaintiff could ever stand. The defendant maintains that there was no testimony as to the cause of plaintiff’s fall and that plaintiff failed to prove that the defendant had any actual or constructive knowledge of the paper allegedly present on the stair in question. Defendant has relied upon the decisions of Davis v. South Side El. R. Co., 292 Ill 378, 127 NE 66 (1920) and Darda v. Chicago Transit Authority, 100 Ill App2d 94, 241 NE2d 478 (1968) . We agree with the defendant that these cases are dispositive of the instant case.

In Davis, supra, the Supreme Court announced the rule that a common carrier would be held to a standard of ordinary care to its patrons with regard to stations and other nonconveyance appurtenances. The case involved a suit by one of the carrier’s passengers for a fall down a stairway allegedly caused by a banana skin. The court stated that liability in such a situation could be imposed upon proof that the alleged tort-feasor had actual notice of the presence of a foreign object or that the object was present for a sufficient time to impute constructive notice.

In a more recent decision of Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill2d 469, 173 NE2d 443 (1961), the Supreme Court made this observation in discussing the Davis case, at page 475:

“Where, in such ease, the foreign substance was unrelated to the proprietor’s operation and there is no proof of actual or constructive notice, defendant is entitled to a directed verdict, since there is no evidence from which it could be reasonably inferred that the substance was more likely to have been dropped by defendant’s servants than by third persons.”

In the instant case, plaintiff alleged that some accumulation of paper was the proximate cause of her fall. However, her testimony only established that it was on the step from which she fell. No evidence was presented that the paper in fact caused the fall. Thus, the above principles are appropriately applicable to this case.

We are supported in our conclusion by reliance on the case of Darda v. Chicago Transit Authority, 100 Ill App2d 94, 241 NE2d 478 (1968). In that case, the plaintiff fell on a platform of the defendant. The fall was allegedly caused by a wet mass of trampled leaves. The court relied upon the Davis case and held that plaintiff’s evidence failed to prove any actual or constructive notice of the presence of any foreign substance on the platform. The court then applied the Pedrick test to reverse a judgment for plaintiff because of lack of proof of an element necessary for recovery.

We think the above analysis is dispositive of the issues raised by the plaintiff and justifies the judgment rendered for the defendant. Plaintiff has argued that this court is bound by its decision in Arden v. Chicago Transit Authority, 89 Ill App2d 214, 232 NE2d 501 (1967). That case reached an opposite result because of direct evidence submitted by the plaintiff as to the accumulation of debris upon a stairway from which the jury reasonably inferred notice to the defendant of the presence of such debris. This case cannot be precedent for the instant case where the record is devoid of any proof on that matter.

The judgment of the trial court is affirmed. The disposition of this case based on the above renders unnecessary any inquiry into defendant’s contention with regard to the notice of claim filed by plaintiff pursuant to statutory requirements.

Judgment affirmed.

BUSMAN, P. J. and MURPHY, J., concur.


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    People of the State of Illinois, Plaintiff-Appellee, v. George A. Bolden, Defendant-Appellant.
    Gen. No. 53,871.
    First District, First Division.
    April 6, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard E. Zulkey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, George A. Bolden, waived a jury trial and was convicted of rape. He was sentenced to the Illinois State Penitentiary for a term of four to ten years.

The defendant contends that the pretrial motion to suppress the identification evidence should have been sustained and that he was not proven guilty of forcible rape beyond a reasonable doubt.

The evidence introduced at the hearing on the motion to suppress and at the trial, reveals that on January 15,1968, at about 9:35 p. m., the eighteen-year-old prosecutrix, Dianne Clady, was walking in the neighborhood of 61st and Woodlawn. The street was well lighted. She testified that the defendant, George Bolden, whom she had not seen before, approached her and asked her if she had any money. She initially replied that she did not. At that point, a boy with a shotgun standing across the street between two cars called to the defendant to “grab her.” As she attempted to get her money out of her purse, the boy said, “bring her across the street.” She said the defendant then grabbed her arm and took her across the street. She had been talking face to face with the defendant, and as they crossed the street she saw his face again in the car light. Miss Clady testified that the defendant told her that he had a “38” and that if she screamed or attempted to run away they would kill her. She said that she had seen the other man’s shotgun and was in fear of her life. The two men led her through a lighted gangway. When the noise caused several people to look down out of their windows, one of the men held his hand over her mouth and held her out of the light. They then took her onto a closed-in porch. Under threats of being beaten she assisted in the removal or her clothes, and both men then raped her. While one of them had intercourse with her the other would hold the shotgun. She said she was with the two men for about forty-five minutes.

Miss Clady’s mother testified that her daughter arrived home on that evening crying and told her to call the police because two boys had raped her. Her clothes were wet and unzipped. It was stipulated that if Dr. Kim were called to testify he would state that his examination of the complainant at the hospital on the night of the occurrence showed spermatozoa from a smear taken from her vagina.

That evening, Miss Clady told the police that her assailant, whom she later identified as the defendant, was about 6' 1" or 6' 2" and wore a black three-quarter-length coat, black pants and a dark shirt. She described him as being dark-complected with process hair and a thin mustache.

On January 16, 1968, the complainant went to a police station to look at pictures of some suspects. She said she was told that she was to look at two young men and see if she recognized either of them. She testified that she saw the defendant who was handcuffed in one of the interrogation rooms and she told the detective that he was one of her assailants. She denied ever saying she wasn’t sure if he was the man.

Detective Joseph Beirne testified that the defendant was alone with two uniformed police officers in one of three small interrogation rooms at the police station. Three other persons were in another of the rooms. A youth arrested with the defendant was on another floor of the station. Detective Beirne said that he told the victim to look around and see if she saw any of her assailants. He said he never suggested to her that she point out the defendant. As soon as she looked in the first room, she walked back to the detective and said that the defendant was her attacker.

The defendant, George Bolden, testified that he never had intercourse with the complainant. He said the first time he saw her was at the police station. The defendant said a police officer asked her if he was the one and she said she wasn’t sure. She walked out of the room, and when she returned she said he was the man who attacked her.

It is contended that the circumstances of the complainant’s identification of the defendant at the police station were so unnecessarily suggestive and conducive to mistaken identification that the defendant was denied due process, and as a result, the in-court identification by the complainant deprived the defendant of a fair trial.

In Stovall v. Denno, 388 US 293, 87 S Ct 1967, the United States Supreme Court considered whether the confrontation of the defendant and a witness without a lineup two days after the murder was so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny due process of law. The court upheld the identification because the witness was hospitalized for major surgery to save her life. The court stated:

The practice of showing suspects singly to persons for the purpose of identification, and not a part of a lineup, has been widely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it. . . . 388 US at 302, 87 S Ct at 1972.

In People v. Blumenshine, 42 I112d 508, 250 NE2d 152, our Supreme Court in considering Stovall held that if a defendant can support the claim that the identification was unnecessarily suggestive and conducive to irreparable mistaken identification the evidence is rendered inadmissible and not simply affected as to credibility. In Blumenshine the record did not contain enough relevant information as to allow the court to make an informed judgment on whether the witnesses’ identifications were based on observations independent of and uninfluenced by the improper identification procedure. The court therefore vacated the judgment and remanded the case for a hearing where the State would have to establish by clear and convincing evidence that the identification had an origin independent of the improperly suggestive “showup” at the police station. Among the factors the court listed which may be considered in determining whether a witness’ identification has an independent origin are the opportunity to observe the alleged criminal act, the existence or absence of any discrepancy between any preidentification description and the defendant’s actual description and any prior identification of another person.

With these guidelines in mind we have carefully examined the evidence. We have concluded from the totality of the circumstances that the identification of the defendant by the victim the next evening, after she was attacked, had an origin independent and uninfluenced by the improper identification proceedings at the police station where no lineup was arranged. The complainant was with her assailant for about forty-five minutes and had ample opportunity to observe his face on the well lit street and during the sexual attacks. She described her assailant as being about 6' 1" in height, with process hair and a thin mustache. This description was accurate and was not shaken at the trial when the complainant again made a positive identification of the defendant. In addition to Stovall and Blumenshine see People v. McMath, 104 Ill App2d 302, 244 NE2d 330; People v. Cook, 113 Ill App2d 231, 252 NE2d 29, and People v. Cowsette, 119 Ill App2d 418, 256 NE2d 25, handed down by this court in January, 1970.

It is also contended that the testimony of the prosecutrix was not sufficiently clear and convincing to lead to an abiding conviction that she was forcibly raped because there was no adequate corroboration, no resistance nor any outcry. We do not agree. This is not a case like People v. DeFrates, 33 I112d 190, 210 NE2d 467, cited by the defense, where the defendant knew the complainant who was scantily clad when she admitted him to her home at 3:00 a. m. to make an air conditioner service call and who made no outcry or attempt to escape and little if any physical resistance. In the present case the complainant was confronted by two men she had never seen before. One of them had a shotgun, and the other told her that he had a “38.” They told her that if she screamed or attempted to run away they would kill her. She testified that she was in fear of her life. We think that her testimony was sufficient to convict the defendant of forcible rape beyond a reasonable doubt. See People v. Harrison, 25 Ill2d 407, 413, 185 NE2d 244, 247.

The judgment of the Criminal Division of the Circuit Court is affirmed.

Affirmed.

MURPHY and ADESKO, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Earl Sidney Davis, Defendant-Appellant.
    Gen. No. 69-82. (Abstract of Decision.)
    Fifth District.
    April 7, 1970.
    Ross Armbruster, of Alton, for appellant; William J. Scott, Attorney General of State of Illinois, of Chicago, Warren K. Smoot, Assistant Attorney General, and R. W. Griffith, State’s Attorney, of Edwardsville, for appellee.
   Opinion by JUSTICE GOLDENHERSH. Not to be published in full.


author: MR. JUSTICE BURKE

text:
    Barbara Warp and Kathryn Heckenback, PlaintiffsAppellees, v. James Whitmore, Defendant-Appellant.
    Gen. No. 53,823.
    First District, Second Division.
    April 7, 1970.

      Louis Riethmann, Michael J. Polelle, and Medard M. Narko, of Chicago, for appellant.
    Robert J. Cooney, of Chicago, for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Plaintiffs brought this action to recover for personal injuries sustained by them when the automobile in which they were riding collided with an automobile being operated by defendant. The jury returned verdicts of $8,-900 for Barbara Warp and $3,000 for Kathryn Heekenback, and judgments were entered thereon. Defendant appeals.

The mishap occurred about 5:00 p. m. on June 3, 1962, near the intersection of Thorndale Avenue and Sheridan Road in Chicago. Sheridan Road at that point consists of two northbound and two southbound lanes of traffic, and traffic at the intersection is controlled by a signal light.

The plaintiffs were passengers in the front seat of an automobile being driven by Randel Hendrickson in the outer southbound lane of Sheridan Road, to the north of the intersection. Shortly before the collision, Hendrickson switched lanes and was proceeding southerly in the inner lane of traffic at a speed of 15 to 20 miles per hour.

Defendant’s automobile had been proceeding in the outer northbound lane of Sheridan Road, to the south of the intersection, and was brought to a halt for the light at the intersection behind another vehicle. The other vehicle accelerated slowly from the light when it turned green, and defendant pulled his vehicle into the inner northbound lane in an effort to pass the vehicle in front, accelerating his vehicle to a speed of between 30 and 50 miles per hour. The pavement was wet and slippery due to a rain which had fallen earlier that day, and as defendant pulled his vehicle into the inner northbound lane, the rear end of the vehicle “fishtailed” across the center line and into the inner southbound lane of traffic in which the Hendrickson vehicle was traveling, resulting in a collision between the two vehicles. Barbara Warp was thrown against the windshield of the Hendrickson vehicle, and Kathryn Heckenback was thrown against the steering wheel and the dashboard.

Kathryn Heckenback was treated for cuts around the inside and outside of the mouth, which required stitches to close. She also required extensive dental work on several of her teeth which had been chipped and cracked in the accident. She testified that the scar from the wound on the inside of her lip bothered her when eating and drinking. She also testified that she was released from the hospital immediately after the emergency treatment.

Barbara Warp also received emergency treatment and remained in the hospital for nine days. She was treated by her family physician for what was diagnosed as a concussion and a traumatic myocytis of the neck. She continued to experience difficulties with her neck after several years of treatment by her family physician and she was referred by him to a specialist. Mrs. Warp continued to experience pain in her right arm, which would occasionally “go to sleep,” causing her to drop things she was holding in her right hand. Her family physician testified that the conditions caused by the accident and experienced by Mrs. Warp were such that “she would have to live with them” in that they could go on for the rest of her life.

Defendant maintains that plaintiffs’ counsel were improperly allowed to make repeated references to defendant’s consumption of alcoholic drink prior to the mishap, without introducing any further evidence to show intoxication.

Counsel for one of the plaintiffs initially raised the matter of drinking when in his opening statement to the jury, he remarked that “there has been some talk of drinking” on defendant’s part. An objection to the remark was sustained and the jury was instructed to disregard the remark.

The matter of drinking again arose on the examination of the defendant by plaintiffs’ counsel when defendant was called as a witness pursuant to section 60 of the Civil Practice Act. The defendant had been attending a regional meeting in connection with his employment, and had been to a committee meeting at a Chicago hotel shortly prior to the occurrence. Counsel for one of the plaintiffs asked defendant to state the last place he had been in the hotel before he left the hotel and defendant replied, “At the bar.”

In later examination by counsel for the other plaintiff, a question asked of defendant as to how many men were at the bar with him before he left the hotel was objected to, and the objection was sustained. Counsel then asked defendant how long he had been at the bar, to which defendant volunteered, “We had one drink.” Several more questions concerning the bar, the people at the bar, and the type of alcohol consumed were interspersed throughout the balance of the section 60 examination of defendant by plaintiffs’ counsel.

The only other evidence of intoxication, introduced by plaintiffs during their case in chief, was a question asked of Kathryn Heckenback as to whether she noticed anything about defendant’s breath immediately after the accident; she replied, “He had been drinking.”

At the close of plaintiffs’ case, a defense motion to strike all evidence relating to the consumption of alcoholic drink was allowed and, in a lengthy instruction by the court, the jury was specifically instructed to disregard that evidence. However, in closing argument and over objection, defense counsel referred to the evidence of drinking and to the ruling and the instructions of the trial court made with regard thereto, and the jury was again told (by defense counsel) to disregard that evidence.

Evidence of drinking of intoxicants will not, of itself, support a charge of intoxication, and plaintiffs here did not introduce any evidence of intoxication apart from the drinking. The motion to strike the evidence bearing on intoxication was properly allowed. We are of the opinion that the court’s emphatic direction to the jury to disregard this evidence and the remarks thereon protected the defendant’s right to a fair trial.

The cases cited by defendant in support of his position are not in point. In Miller v. Chicago Transit Authority, 3 Ill App2d 223, 121 NE2d 348, an objection to a question regarding drinking was sustained by the trial judge; a second question in this regard was again asked and an objection thereto was sustained. The court on review held that the sustaining of the objections did not cure the prejudicial effect of the questions asked, inasmuch as there was no attempt to prove intoxication. Here, on the other hand, the question of drinking was opened up by the defendant’s answers volunteered during the section 60 examination, and the jury was later admonished in very emphatic and specific terms to disregard all evidence pertaining to the consumption of alcohol. In Kitten v. Stodden, 76 Ill App2d 177, 221 NE2d 511, the trial judge during the voir dire examination of the prospective jurors, commented that “two drunks are still entitled to the same law as persons who are not intoxicated.” No such situation is presented here. The case of Clarke v. Rochford, 79 Ill App2d 336, 224 NE2d 679, is likewise inapposite on its facts.

Defendant next contends that the trial court erred in giving plaintiffs’ instructions regarding damages for future pain and suffering, for the reason that no evidence was introduced to support those instructions. We disagree.

Kathryn Heckenback testified that she experienced difficulties in eating and drinking due to the scar formed from the wound on the inside of her mouth caused by the accident; there was also evidence that certain of the teeth cracked and chipped in the accident required periodic attention to determine if any “devitalization” was occurring. The evidence of permanency of injuries introduced on behalf of Barbara Warp was that she was feeling the effects of the injuries received in the accident at the time of trial; that she would experience occasional numbness in her right arm, causing her to drop things; and that her disabilities were such that she would “have to live with” them. There was sufficient evidence introduced to support the instructions given.

Defendant also complains that the court erred in giving a modified version of IPI instruction #34.04 relating to the mortality table which was admitted in evidence. The fact that the language of the instruction does not conform to IPI #34.04 is not, of itself, sufficient to warrant a reversal. Avance v. Thompson, 387 Ill 77, 55 NE2d 57; Hildebrand v. Baltimore & O. R. Co., 41 Ill App2d 217, 226-227, 190 NE2d 630. (See also Bridges v. Ford Motor Co., 104 Ill App2d 26, 36-37, 243 NE2d 559, where defendant failed to offer an instruction clarifying the use and purpose of mortality tables at trial.) It should be further noted that defense counsel commented on the relevancy and value of the tables during his closing statement to the jury.

Defendant next argues that the giving of the foregoing instructions set the stage for an improper per diem argument on damages by counsel for one of the plaintiffs. We are in agreement with defendant’s position that arguments, which attempt to place before the jury a mathematical formula for arriving at damages for future pain and suffering based upon fixed units of time, are improper, (Caley v. Manicke, 24 Ill2d 390, 182 NE2d 206; Jensen v. Elgin, J. & E. Ry. Co., 24 Ill2d 383, 182 NE2d 211) but we are not here confronted with an argument of the nature as those in the cases cited by defendant.

After arguing that one of the plaintiffs should be awarded a specific amount of damages for costs expended, lost work time, past pain and suffering, etc., her counsel suggested that she be allowed for future pain and suffering the sum of $100 per year for the number of years of her life expectancy. In making this argument, counsel carefully noted that the sums stated by him were only his suggestions, which could be high or low depending on what the jury determined to be just compensation.

Secondly, no objection was made by the defendant at the time the argument was made to the jury. Finally, counsel for the plaintiff did not, as was the situation in the cases cited by the defendant, challenge defense counsel to offer a better “scheme” for arriving at damages.

Under the circumstances we find no error in this regard.

Defendant next contends that the final argument of counsel for one of the plaintiffs went beyond proper comment, in that he criticized opposing counsel and argued matters not in evidence. In light of the evidence of negligence on defendant’s part and in light of the amount of the verdicts returned by the jury, although some of the remarks complained of should not have been made, we are of the opinion that no prejudice resulted to defendant therefrom. Some of the remarks complained of were brought about, by defense counsel during his final statement to the jury. Further, no challenge is made on this appeal to the amounts of the verdicts returned. With respect to the matters argued to the jury which allegedly were not supported by the evidence, no objection was made by defendant at the time the arguments were made.

Defendant finally states that the trial court committed error in refusing to give to the jury three tendered special interrogatories which sought to determine whether defendant’s conduct was “the proximate cause” of the accident. There was no evidence introduced at trial which could in any way support the theory that a cause other than defendant’s negligence was the proximate cause of the occurrence. There was no evidence of negligence on the part of plaintiffs’ driver, Hendrickson, in the operation of his vehicle, and the evidence concerning the wet pavement, standing alone, was not sufficient to warrant the jury in finding that the mishap was due thereto. The interrogatories were properly refused. Wicks v. Cuneo-Henneberry Co., 319 Ill 344,150 NE 276.

For these reasons the judgments are affirmed.

Judgments affirmed.

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


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    National Boulevard Bank of Chicago, Trustee Under Trust No. 1958, Dated December 21, 1965, Plaintiff-Appellee, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 53,765.
    First District, Second Division.
    April 7, 1970.

      Richard L. Curry, Acting Corporation Counsel of City of Chicago (Marvin E. Aspen and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellant.
    John J. O’Toole, of Chicago, for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This was an action for a declaratory judgment seeking to void and hold unconstitutional a portion of the City of Chicago Zoning Ordinance as it applied to the subject property, and to allow plaintiff to construct on the subject property apartment buildings of a greater density than that allowed by the Ordinance. The trial court granted the relief requested in the complaint and defendant appeals, contending, inter alla, that the plaintiff failed to exhaust the local remedies provided for in the Ordinance before challenging its constitutionality in court.

The instant complaint was filed on July 25, 1967, alleging in part that plaintiff held title as trustee to the subject property which was located on the northwest side of Chicago; that the subject property consisted of two adjacent but separate parcels of land and was vacant except for a frame dwelling which was to be removed; and that the subject property was situated in a B4-2 zoning district, Restricted Service. The complaint also alleged matters which in effect sought to have the subject property given a general residence status in order that the construction of two apartment buildings consisting of a total of 133 rental units could be legally realized.

Paragraph 7 of the complaint alleged that,

“On investigation plaintiff was advised that the City of Chicago would not issue a permit for the construction of said buildings to contain more than a total of approximately 30 units each, and provided further that no dwelling be located below the second floor of the building, and that the defendant, City of Chicago, will restrict the occupancy of said premises. . . .”

Paragraph 22 of the complaint alleged that plaintiff had made application to the City Council of the City of Chicago for a zoning amendment to enable it to construct the desired use, and also alleged that there was no other remedy available under the Ordinance except by court action.

The answer of the City to the complaint requested that paragraph 7 thereof be stricken in that it was argumentative and contained conclusions of the pleader. The answer also denied the allegations contained in paragraph 22 of the complaint.

After hearing evidence the trial court entered judgment in accordance with the prayer of the plaintiff, the judgment order specifically reciting that the plaintiff had exhausted its local remedies as provided in the Ordinance and that it had no other remedy except in a court of law or equity.

We are in agreement with the City’s position, that plaintiff failed to exhaust its local remedies provided for in the Chicago Zoning Ordinance before filing the instant complaint challenging the constitutionality of the Ordinance as it applied to the subject property.

It should be first noted that there is nothing in the record supporting plaintiff’s allegations that it made application to the City Council for an amendment to the Ordinance and that it had exhausted all local remedies before filing the instant complaint. There is no evidence of any action taken by the City Council upon the application for amendment allegedly filed by plaintiff, nor is there a copy thereof in the record. Plaintiff has attached, as an appendix to its brief, a completed application for such amendment before the City Council, but there is nothing to show that it was ever filed with or acted upon by the Council. However, for purposes of this appeal, we will proceed under the assumption that the application is true on its face and further that it was in fact filed with and acted upon by the City Council.

The record nevertheless still discloses that plaintiff failed to exhaust the remedies available to it under the Ordinance. The application for amendment attached to plaintiff’s brief reveals that the present zoning of the subject property is B4-2 and that the relief requested in the application was a change to a B4-3 status, relating to the existence of rental units on the lower floors of apartment buildings. This was not an appropriate request to make of the City Council under the Ordinance.

The relief allegedly requested in the application was for a variation in the nature of a special use, which could be acted upon only by the Zoning Board of Appeals. (See Municipal Code of Chicago, Ill, 1967, chapter 194A, section 1, part A, art 8.4r-4 (3), art 11.10-2 and art 11.10-3.) Consequently, the use requested in the application for amendment, assuming again that plaintiff did in fact file such with the City Council, was in reality a request for a special use and was never brought before the appropriate local body for its consideration. Reilly v. City of Chicago, 24 Ill2d 348,181 NE2d 175.

A case exactly in point is American Nat. Bank & Trust Co. v. City of Chicago, 110 Ill App2d 47, 249 NE2d 148. In the American National case, plaintiff filed its application for an amendment with the City Council, requesting, as alleged here, a change from a B4r-1 to a B4-2 zoning. The application was denied and plaintiff immediately filed its complaint for declaratory judgment, wherein a portion of the relief requested was a change from the B4-1 zoning to a residential zoning, as here. In reversing the judgment entered for plaintiff granting the requested relief, the Appellate Court noted that the relief requested in the application was a special use and was never brought before the Zoning Board of Appeals in order that the Board could have the opportunity to correct any error in the zoning classification or to remedy any unreasonable hardship created by the Ordinance, before the complaining party entered into litigation. See also Bright v. City of Evanston, 10 Ill2d 178, 139 NE2d 270. Likewise, plaintiff here failed to afford the Zoning Board of Appeals the opportunity to consider the matter before filing the instant complaint.

The fact that the trial court specifically found that plaintiff did exhaust all local remedies and that it had no recourse other than in a court of law or equity, does not cure this fatal defect. It is essential to the sufficiency of the findings of a trial court that they be supported by the evidence. Hanaman v. Davis, 20 Ill App 2d 111, 114-115, 155 NE2d 344. On this state of the record judgment should have been entered for the defendant.

Finally, plaintiff maintains that defendant did not properly preserve the question of the exhaustion of remedies for appeal. It need only be said that plaintiff’s complaint alleged exhaustion of remedies, that the answer specifically denied the allegation, and that the burden of proof was therefore upon plaintiff to show that the remedies were in fact exhausted before filing this action. Plaintiff failed in this regard. Defendant’s post-trial motion makes the allegation that plaintiff failed to sustain its burden of proof. This is not the same situation as in City of Chicago v. James E. Mulligan Enterprises, 27 Ill App2d 481, 489, 170 NE2d 13, wherein a question raised on appeal was never put into issue at trial. We do not agree with plaintiff’s contention that the City is estopped to deny that plaintiff did not exhaust its local legislative remedies.

For these reasons the judgment is reversed.

Judgment reversed.

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