text:
    People of the State of Illinois, Plaintiff-Appellee, v. Allen Stanbeary, Defendant-Appellant.
    Gen. No. 53,590.
    First District, Fourth Division.
    June 10, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Arthur Belkind, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Murder. Ill Rev Stats 1967, c 38, § 9-1.

JUDGMENT

After a jury trial, defendant was found guilty and sentenced to a term of 35 to 75 years and remanded to the custody of the Illinois Youth Commission.

ISSUES RAISED ON APPEAL

1. Denial of defendant’s motion to suppress physical evidence was error because the State failed to prove free and unequivocal consent to search, or the consent was tainted by fraud.

2. Defendant was denied due process of law because the State concealed exculpatory evidence from the defense prior to trial.

3. The prosecutor prejudiced the jury when he led it to believe that a defense witness had made prior inconsistent statements, while offering no evidence that he had made such statements.

4. The prosecutor prejudiced the jury by commenting on defendant’s failure to testify.

EVIDENCE AT THE HEARING ON DEFENDANT’S MOTION TO SUPPRESS PHYSICAL EVIDENCE

John Boeger, for the State:

He is a police officer and, on September 17, 1967, went to defendant’s home on two separate occasions. On the first visit, defendant’s mother opened the door. He and his partner, Detective Sullivan, identified themselves as police officers and showed proper identification. They asked if they could speak to her with regard to her son, and she replied, “Yes, come on in.” They walked from the back porch to the front portion of the apartment and were met by defendant’s father. They also explained the purpose of their visit to him.

The witness then observed a pair of boy’s gym shoes on the floor in front of the sofa. He brought this to the attention of Detective Sullivan. Knowing that gym shoe footprints had been found at the scene of the crime, he asked Mr. Stanbeary if those shoes belonged to his son, and was told that they did. The witness then asked Mr. Stanbeary if he would mind bringing the shoes to the police station. He asked, “Why?” and they replied that “it could be part of the investigation and that we would explain it more fully in our office.” Mr. Stanbeary picked up the shoes and put them in a brown paper bag. The officers left the house without defendant or the shoes.

They drove to 77th and Normal where they met Detective Valesares and had a conversation with him, after which they returned to the Stanbeary home. They asked defendant to accompany them to the station, and indicated that they also preferred an adult to go along. Defendant was not arrested at this time. They gave Mr. Stanbeary a business card with the address of the station and took defendant and Mrs. Stanbeary there in a squad car.

The witness next saw the gym shoes at the station when the father brought them in in a brown paper bag and gave them to one of the detectives.

Lucille Stanbeary, on behalf of defendant:

She is defendant’s mother and talked to the police officers at the back door after they rang, and let them in when they asked to see defendant. They went into the dining room. The detectives asked her if Allen could go to the station and she said “No.” When they returned the second time, they asked for the gym shoes that were alongside the chair in the living room. She “gave them the right to the shoes.” She told defendant to take the shoes to the police station. She complied with the request for the shoes because the men were police officers.

Allen Stanbeary, Sr., on behalf of defendant:

He is defendant’s father and talked to the policemen in the living room after they first entered the house. They asked him to bring defendant to the station. He told them he would, but that it would take twenty minutes to half an hour to get ready. The officers left, but returned as the Stanbearys were preparing to leave. One of the officers asked if the gym shoes belonged to defendant and “someone answered, ‘yes.’ ” The police then asked if they could take them to the station, and one of the officers took the shoes. The witness didn’t take them, nor did he recall seeing his son take them.

Defendant’s motion to suppress the gym shoes as evidence was denied.

EVIDENCE AT THE TRIAL

It was established at trial that the victim, Mrs. Lucille Huyck, 76 years of age, was raped and murdered on the evening of September 15, 1967. The deceased’s son testified that his mother had owned a white, 1959 model Studebaker Lark. Deceased’s next-door neighbor stated that on the evening before the murder, deceased had called her to relate that her purse, containing car keys, had been stolen. She further testified that on September 15, at approximately 10:30 p. m„, she saw a light in deceased’s garage and observed someone back deceased’s car out of the driveway. After receiving a phone call from a friend who had been attempting to call deceased, and becoming suspicious, she and her husband discovered deceased’s body.

Mrs. Mayme Matthews, a friend of Mrs. Huyck, testified that she had talked with deceased on September 15 until after 9:00 p. m. She did not know defendant personally, but deceased had spoken of him because he had cut her grass some months before. Another neighbor, Mrs. Florence Levi, testified that at 10:40 p. m., on September 15, she heard a car, honking loudly, leave deceased’s garage. She heard it hit a building as if a collision occurred.

An investigation by the police, as testified to by several officers, indicated that deceased had suffered a gash in the head and fifty-one stab wounds on the upper portion of her body. A broken lamp was found at the side of her bed and small fragments from the lamp were found in and around her hair. Two fingerprint experts testified that defendant’s palm and fingerprints were found on the broken lamp.

Detective Valesares testified that deceased’s garage door was open and that there were tire marks in the adjacent flower bed. The house was also damaged where the tire marks were made. He also observed footprints in the dust on an open wood porch at the rear of the victim’s house. Photographs of the prints were taken and an expert testified that they had been made by the gym shoes found in defendant’s home.

Valesares also testified that he surveyed the neighborhood and found deceased’s automobile one-half block from defendant’s home. The automobile was damaged on the left door.

Detective O’Reilly testified that he was at the police station on September 17, 1967, when defendant and his parents were brought in. He informed defendant at length, in explicit terms, of his constitutional rights. Defendant and his father were then left alone for about ten minutes, until his father told the witness, “Come in and sit down, he did it.” Defendant then gave an oral confession in front of four police officers, in which he detailed the facts of the crime and subsequent use of the victim’s automobile. The statement was reduced to writing, but defendant did not sign it.

Allen Stanbeary, Sr., testified that his son had not made a confession to the police, but had told them that he had been watching television with a friend. He denied that defendant had been advised of his rights. The witness left the station and, when he returned, one of the officers informed him that defendant had “admitted taking the lady’s car or something pertaining to that,” but he wouldn’t let his son sign any statement.

Lulu Jackson, who lived across the street from the victim, testified that on September 15, 1967, she had observed a man sitting in a parked car in front of the victim’s house from 2:00 p. m. to 8:00 p. m. The man was about thirty years old, but she would not be able to recognize him if she saw him again.

OPINION

Defendant’s initial contention is that the court erred in admitting the gym shoes into evidence. The testimony on the motion to suppress this evidence showed that the police were invited by Mrs. Stanbeary to enter the house and, while there, noticed the shoes in plain view on the floor. Having asked and been informed by defendant’s father that the shoes belonged to defendant, the officer asked if he would mind bringing them to the police station as they “could be part of the investigation.” Mrs. Stanbeary testified that she consented to this request. The shoes were brought to the station, although it is not clear who transported them. The police denied taking them, and asserted that they were taken by either defendant or his father.

Defendant argues that the State failed to prove a free and unequivocal consent to the search and seizure, thereby rendering it unlawful. See Bumper v. North Carolina, 391 US 543, 20 L Ed 797. The testimony does not support this position. There is no evidence that any duress or coercion, actual or implied, occurred. Mrs. Stanbeary voluntarily consented to the entry of the apartment by the police, and to the production of the gym shoes. We find that the Stanbearys’ consent was “unequivocal and specific” and “freely and intelligently given.” People v. Haskell, 41 Ill2d 25, 241 NE2d 430.

Defendant also contends, alternatively, that the consent was procured by a misrepresentation of facts; specifically, that the officer failed to tell Mr. Stanbeary, Sr., the exact reason for wanting the shoes. We believe that, given the circumstances of this case — that the investigation was in the embryonic stage and that defendant had not been placed under arrest — the officer was justified in making the reply he did, as there were very few facts then known to him upon which he could have responded in a more definitive manner.

Moreover, the instant case did not involve unlawful search and seizure in violation of defendant’s rights. It is undisputed that the shoes were in open view, and merely to see them is not a “search.” A search implies “a prying into hidden places for that which is concealed, and it is not a search to observe that which is open to view.” People v. Davis, 33 Ill2d 134, 138, 210 NE2d 530; People v. Stewart, 23 Ill2d 161, 177 NE2d 237. Nor did the police officers unlawfully seize the shoes. Upon viewing the potential evidence, they inquired to determine the owner, as part of a routine investigation. Their inquiry was freely answered and the Stanbearys voluntarily delivered the shoes to the station. (This version was according to police testimony, the credibility of which was properly determinable by the trial court.) The actions of the police were not unreasonable and defendant’s fourth amendment privilege was not abused. See People v. Stacey, 25 Ill2d 258, 184 NE2d 866.

Defendant next contends that he was denied due process of law because the State concealed exculpatory evidence prior to trial. The evidence, contained in a police report which was not made known to defendant until trial, showed that on the day of the occurrence a man had been sitting for six hours in a parked car in front of deceased’s house. Defense counsel requested the report during the trial and it was immediately tendered to him. Lulu Jackson, who was the source of the information contained in the report, testified for the defense. Therefore, the evidence was before the jury for their consideration on the issue of guilt. Defendant argues, however, that an intelligent defense on this issue was precluded by the late disclosure of the report; yet, we note that counsel made no request for additional time to investigate the matter. At any rate, we believe the fact contained in the report to be of little probative value in light of the strong case presented by the State, and conclude that the handling of the report, as complained of by defendant, had no effect on either the fairness of the trial or its outcome. See Barbee v. Warden, Maryland Penitentiary, 331 F2d 842, 847. The delay in disclosure, if it could be so regarded, did not result in prejudice to defendant.

Defendant also contends that the prosecutor prejudiced the jury by leading it to believe that defendant’s father had made prior inconsistent statements, while not following through to offer evidence of such statements. Defense counsel, however, withdrew his objection to the line of questioning now complained of, and this constitutes a waiver of the point. See People v. Adams, 41 Ill2d 98, 242 NE2d 167; People v. Arnold, 27 Ill2d 294, 189 NE2d 241.

The last contention is that defendant was prejudiced by the prosecutor’s indirect reference to defendant’s failure to testify. The grounds for this point are based upon defendant’s federal and state constitutional guarantees against self-incrimination and the statutory provision prohibiting any comment on his failure to testify. Ill Rev Stats 1967, c 38, § 155-1. A similar claim was considered in People v. Williams, 40 Ill2d 522, 240 NE2d 645, where the court stated at page 527:

A careful analysis of the privilege and the reason for the prohibition reveals that their purpose is to prevent prejudice to an accused from his failure to testify, but not to prevent prejudice to his case from his failure to produce evidence to establish his defense.

The specific references at issue occurred during closing argument when the prosecutor stated that there was “no contradiction, no refuting the fact these were his gym shoes.” The prosecutor also commented that it was “conclusively established” and uncontradicted, without explanation, that defendant’s fingerprints were those found on the broken lamp in deceased’s home. With respect to defendant’s oral admission, the prosecutor again argued that it is “undenied and uncontradicted.”

Defendant argues that evidence presented in his behalf did contradict the facts as presented by the State. While it is true that certain testimony was offered that defendant had mowed deceased’s lawn many months before, there was no intimation that, in the course of that employment, defendant had ever entered the house and thus had an opportunity to put fingerprints on the lamp. Somewhat similarly, defendant’s father denied that his son made a statement to the police during the initial interrogation at the police station; but, when confronted, on his return, with the information that his son had confessed, he merely testified that he wouldn’t let his son sign any statement.

In a situation much like this, where the defense had offered no evidence to refute the State’s case, the Supreme Court said that “statements pointing out the fact that the People’s case was uncontradicted are not a reference to the failure of the defendant to testify within the meaning of the statute.” People v. Norman, 28 Ill2d 77, 81, 190 NE2d 819; People v. Ciconte, 102 Ill App2d 1, 11, 243 NE2d 407. Defendant urges that the reference to the “undenied” oral admission is especially prejudicial since a jury would only interpret that reference as applying to defendant’s failure to deny. However, such a comment does not violate defendant’s rights. It is permissible for a prosecutor to comment on the uncontradicted nature of the State’s case even where the only person who could have contradicted the evidence was the defendant himself. People v. Mills, 40 Ill2d 4, 8, 237 NE2d 697; People v. Norman, supra, and cases cited.

The prosecutor’s design in the instant case appears to have been one of presenting the facts and conclusions to be drawn therefrom. He did not single out defendant for his failure to testify, but commented on the strength and uncontradicted nature of the State’s evidence. We cannot say that the references were “intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal right to testify.” People v. Mills, supra. We hold that the prosecutor’s comments did not violate defendant’s rights or prejudice him in the eyes of the jury.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and LEIGHTON, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE ENGLISH

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willard B. Davis, Jr., Defendant-Appellant.
    Gen. No. 53,727.
    First District, Fourth Division.
    June 10, 1970.

      Howard T. Savage, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard Zulkey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Armed robbery. Ill Rev Stats 1967, c 38, § 18-2.

JUDGMENT

After a bench trial, defendant was found guilty and sentenced to a term of 4 to 8 years.

ISSUES RAISED ON APPEAL

1. Defendant was prejudiced by the admission of an in-court identification resulting from a prejudicial out-of-court confrontation.

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

EVIDENCE

James Clark, for the State:

He was employed at Roberts Motel, 3760 South Michigan Avenue, as a desk clerk. On June 26, 1967, at 1:10 a. m., he was sitting behind the desk filling out a registration sheet. Working with him was Geneva Powell, the switchboard operator, and standing across the desk in the motel lobby was James Barnes, a guest. Two men walked into the motel lobby, and he glanced at them and continued working. He identified defendant in court as one of the two men. Lighting in the lobby and behind the desk was excellent.

The men approached the counter and asked about room rates. Witness kept his head down while answering them. When they then asked him if he rented single units to two men, he raised up, looked at them, and said, “No.” They were about a foot away from the witness at that time. They then displayed pistols, and said, “This is a stickup.” He described the attire of the robbers and their weapons. They asked for the money, and he put the cash box, containing about $300, on the counter. Def end-ant stood at the counter as the other man grabbed the box and asked for “the envelope.” This entire sequence took about two minutes. Witness said he didn’t have any envelope, whereupon both men came behind the counter. Defendant held a gun on the switchboard operator as the other man started searching for the envelope. The witness observed the defendant, who was about four feet away, out of the corner of his eye. While behind the desk, the men took five envelopes containing currency and checks, all in a period of about three minutes. They walked to the front of the counter facing the witness and he saw them take a billfold from Mr. Barnes. He looked at their faces. Then they left, running south on Michigan Avenue. He called the police and they responded in 5 to 10 minutes.

Several days later, detectives brought five or six photographs to his home and he identified a photograph of defendant as being a picture of one of the men who had robbed him. Four or five days after that, police took him to the station to attend a lineup. He was told that they had a suspect and wanted to see if he could identify him. (On cross-examination, he testified that on the morning of the trial he told defense counsel that the police had told him, “Come down. We have caught the men.”) There were six or seven men in the lineup and he identified defendant as one of the men who participated in the robbery.

Geneva Powell, for the State:

On the morning of June 26, 1967, she was working at Roberts Motel as the switchboard operator. She was placing a long distance call and not paying much attention when she heard a voice say, “Give me the envelopes.” A man with a gun then stood next to her for a minute or two and told her not to place any calls. The man walked back to the desk and she sat there until they left the office.

She testified that she couldn’t make an in-court identification by face, but that defendant was approximately the same size as the robber. She had been shown three or four photographs by the police several days after the incident and had seen one that may have been the robber, but she wasn’t certain it was the same man. She attended a police station lineup but was not able to identify anyone who had participated in the robbery.

Ralph Gibson, for the State:

He was a police officer on June 26, 1967, and investigated the robbery of Roberts Motel. He first saw defendant on July 6 when defendant came to the station to give himself up. He advised defendant of his rights and stated that he could have his lawyer present if he wanted, but defendant said he had talked to his lawyer and didn’t want to have him present. Defendant was then told he was going to be put in a lineup, and was placed in a lineup with five other men. He didn’t remember telling defendant that he had a right not to participate in the lineup, nor did he specifically inform defendant that he had a right to have an attorney with him at the lineup. James Clark was brought in to view the lineup and identified defendant as one of the men who had committed the robbery.

Betty Jean Mitchell, for the defense:

She is defendant’s sister and saw him on June 25, 1967, at 8:30 to 9:00 p. m., near 63rd Street and Vernon. He was with his fiancee, Vera, and their little girl, Lisa. The group there included her husband, her other brother, her sister Odessa LeBray and her husband, and a girl named Bonita. They all went to the LeBrays’ house and remained there until about 11:30 p. m. Defendant was there during that time except for ten minutes. She and her husband, Vera, Lisa, and defendant left in a car driven by defendant, and proceeded to the house of her uncle, Harry Davis, arriving at about 12:00 or 12:30 a. m. She and defendant went into the house and talked to Harry and his wife Ruby. They stayed for about 10 minutes, went downstairs and met Lawrence Davis, her uncle’s son. They had a conversation with him until 12:55 a. m. Then they drove to a drugstore at 35th Street and South Parkway where her husband and defendant went in to purchase a drink. She met some people she knew and everyone stayed in that vicinity until 1:45 a. m., when they returned to her house where defendant, Vera and Lisa remained until daybreak.

When she first talked to the police, she did not tell them the same story she related in court because she didn’t know why they were questioning her. Her sister Odessa had worked at Roberts Motel for three years.

Cecil Mitchell, for the defense:

He is the husband of defendant’s sister, Betty Jean Mitchell. He was with defendant on the evening in question and his account of the events that evening was substantially similar to that of his wife. He didn’t remember whether he had told the police the same story when they first questioned him. He had denied to the police that he knew anybody named “Lucky,” although he knew that was defendant’s nickname. He had lied to the police.

Ruby Davis, for the defense:

She is defendant’s aunt and had occasion to see him at her house in the early morning of June 26, 1967, when he and his sister stopped by. She thought it was about 12:30 a. m., and they stayed 10 or 15 minutes. She remembered the evening because she and her husband, Harry, had watched the late movie, but she didn’t recall what day of the week it was.

Harry Davis, for the defense:

He is defendant’s uncle. His testimony, in substantial part, was similar to that of his wife.

Caroline Watson, for the defense:

She was working at Aleo Drugs on June 25,1967, from 4:00 p. m. to 1:00 a. m. She stated that June 25 fell on a Saturday. She saw defendant come into the store with Cecil Mitchell at about 1:00 or 1:05 a. m. Before leaving for home with her husband, she went outside to defendant’s car and talked to defendant, Vera and the Mitchells.

Willard Davis, defendant, in his own behalf:

His testimony as to the events of June 25, 1967, was similar to that given by his sister, Betty Mitchell. He learned, on June 27, that he was under suspicion for a crime. He called a lawyer, who advised him to turn himself in to the police, which he did on July 6. He believed that June 25, 1967, fell on a Saturday. His work week was Monday through Friday and he didn’t recall if he had worked that day. He did work the day before, but not the day after.

It was stipulated that June 25, 1967, was a Sunday and June 26 a Monday.

Anthony Radun, for the State:

He is a police officer and on June 26, 1967, was assigned to investigate an armed robbery of Roberts Motel. That evening he talked to Cecil Mitchell, who told him that on the 25th, at 10:00 p. m., he and his wife were at the LeBrays’ house with the LeBrays, an unknown couple, a fellow known to him only as “Lucky,” and Lucky’s girl friend. Mitchell told him that the other six people left at midnight and he and his wife remained until 2:30 a. m. Mitchell did not tell him the name of the person known as “Lucky,” nor did Mitchell mention the names of Lawrence Davis or Caroline Watson. The witness also talked to Betty Jean Mitchell, who related a similar story.

The witness’ testimony was based on a police report that he had prepared and signed on the date of the interviews.

OPINION

The initial argument advanced by defendant is that Clark’s in-court identification of defendant should not have been admitted into evidence, as it was the product of a pretrial lineup conducted in the absence of defendant’s counsel. Defendant relies upon the decisions in United States v. Wade, 388 US 218, and Gilbert v. California, 388 US 263. A motion to suppress the identification evidence was heard on the basis of the State’s casein-chief and was denied at the close of the State’s evidence.

A factual situation similar to the case at bar was presented in People v. Palmer, 41 Ill2d 571, 244 NE2d 173, where the court analyzed the United States Supreme Court decisions. There, the court noted that the language in Gilbert and Wade referred only to post-indictment lineups, and held that “these ‘lineup’ decisions apply only to post-indictment confrontations.” People v. Palmer, supra, at 572. At page 573, the court also relied on the later case of Simmons v. United States, 390 US 377, 382, where it was stated, in reference to the “lineup cases”:

“The rationale of those cases was that an accused is entitled to counsel at any ‘critical stage of the prosecution’, and that a post-indictment lineup is such a ‘critical stage.’ ”

See also People v. Branscomb, 116 Ill App2d 385, 398-399, 254 NE2d 126.

The instant ease comes directly within the rationale of Palmer. About an hour and a half after defendant had surrendered himself to the police, he was placed in a lineup and identified by a State’s witness. An officer testified that when defendant first came to the station he had been told of his constitutional rights, including the right to have counsel present; that defendant told him he had talked to his lawyer and did not want to have him present at that time. The lineup occurred in July, 1967, and defendant was not indicted until October, 1967. Under the circumstances of this case, we find that the decisions of Wade and Gilbert are not applicable.

However, the question remains as to whether the circumstances of this pretrial identification were so unnecessarily suggestive and conducive to irreparable mistaken identification that defendant was therefore denied due process of law. See Stovall v. Denno, 388 US 293. We think he was not. James Clark testified that he observed defendant from a distance of a few feet away for several minutes during the robbery. He picked defendant’s photograph from five or six that the police showed him, and then positively identified defendant in a lineup of six men. We find that the record is more than adequate to establish a prior uninfluenced observation of defendant sufficient to serve as an independent origin for the in-court identification. Therefore, it is immaterial whether the identification procedure was or was not unfairly suggestive (although it appears not to have been), as defendant was not denied due process of law. People v. Cook, 113 Ill App2d 231, 239, 252 NE2d 29; People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152; People v. McMath, 104 Ill App2d 302, 312-313, 244 NE2d 330 affirmed 45 Ill2d 33, 256 NE2d 835.

Defendant also contends that he was not proven guilty beyond a reasonable doubt, since the identification testimony was weak and a strong alibi defense had been presented. He claims that the identification is vague, doubtful and uncertain, because James Clark’s testimony contained some contradictions — particularly in regard to different descriptions of his robbers — and Geneva Powell, the other witness to the occurrence, never did identify defendant. He also points out that Clark gave the police no description of the robbers’ facial eharacteristics, while Mrs. Powell described one of the men as having both a beard and a mustache.

As we have noted, James Clark had an opportunity to observe defendant from a few feet away for several minutes under excellent lighting conditions, and he positively identified defendant in the lineup as well as from a series of photographs. It is true, as argued by defendant, that where a conviction rests upon an identification which is doubtful, vague and uncertain, it will be reversed. People v. Gardner, 35 Ill2d 564, 221 NE2d 232; People v. Cullotta, 32 Ill2d 502, 207 NE2d 444; People v. Gooden, 403 Ill 455, 86 NE2d 198. However, this is a question for the trier of fact whose duty it is to consider contradictory testimony and determine the credibility of the witnesses and the weight to be accorded their evidence. People v. Coulson, 13 Ill2d 290, 149 NE2d 96; People v. Cook, supra. Upon a thorough examination of the record, we find adequate evidence, including that of identification, to establish defendant’s guilt beyond a reasonable doubt.

Defendant asserts that the alibi testimony offered in his behalf by several witnesses was sufficient to raise a reasonable doubt of his guilt. He has cited several cases holding that plausible evidence of an alibi cannot be disregarded where the only evidence contradicting it rests upon the identity of the defendant as the man who committed the crime charged, and where the entire record reveals reasonable doubt of guilt because of an uncertain identification. People v. Gooden, supra; People v. Kidd, 410 Ill 271, 102 NE2d 141; People v. Ricili, 400 Ill 309, 79 NE2d 509. We have considered the alibi evidence and find it conflicting and internally inconsistent. One basic discrepancy is that the defense witnesses, while testifying in substantial part to the same events, were not in agreement as to the date on which these events took place. It was stipulated that June 25, 1967, fell on a Sunday, yet defendant thought the events occurred on a Saturday. Two alibi witnesses were unsure what day of the week it was, and another definitely stated it was a Saturday. Moreover, defendant’s sister and brother-in-law originally told an altogether different story to the police. Again, this is a matter for the trial court in determining the credibility of the witnesses and the weight to be accorded their testimony. The trial judge obviously did not believe the alibi defense, and we can find no basis in the record to disturb his evaluation.

DECISION

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and LEIGHTON, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Michael L. Malone, Defendant-Appellant.
    Gen. No. 53,748.
    First District, Fourth Division.
    June 10, 1970.

      John B. Cashion, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Laurence J. Bolon, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Robbery. Ill Rev Stats 1967, c 38, § 18-1.

JUDGMENT

After a jury trial in which defendant was found guilty, the court imposed a sentence of 2 to 4 years.

ISSUES RAISED ON APPEAL

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

2. The trial court improperly refused to permit defense counsel to argue his interpretation of reasonable doubt.

3. The prosecutor’s final argument was improper and denied defendant a fair trial.

4. The trial court, during the hearing in aggravation and mitigation, improperly considered defendant’s prior convictions in Boy’s Court.

EVIDENCE

William Brown, for the State:

Around midnight on March 2, 1968, he walked from his residence at 317 South Throop Street to a restaurant at Madison Street and Ogden Avenue. He ate a bowl of soup there and left at approximately 12:45 a. m. on March 3. He then vomited, since he was still weak from a recent illness and confinement with tuberculosis. As he was walking home in the vicinity of Laflin and Adams, a “fellow” (identified as defendant) came from behind him and asked for a cigarette. He was reaching for his cigarettes when defendant asked if he had any money. He replied, “Yes, about $8.” Thereupon, defendant told him to get up against the wall, which he did. Facing the wall, he was searched by defendant, who kept his right hand in his pocket. Defendant took $7 from the witness’ wallet, together with $1 in loose change and various medicines and papers from his pockets. The wallet, medicine and papers were then thrown to the ground.

Defendant kept telling him to turn toward the wall and asked if he wanted to be shot. Defendant then turned and walked south on Laflin. The witness hailed a squad car parked nearby and two policemen got out. He told them what had happened and they grabbed defendant. He observed the officers as they searched defendant and found $8 on his person.

Steve Glynn, for the State:

He is a police officer, and on March 3, 1968, at approximately 1:00 a. m., was patrolling in a marked squad car with Officer Finstrom on Laflin between Monroe and Adams Streets. He observed two men standing against a wall just off the northeast corner of Laflin and Adams. “It appeared that one man (identified as defendant) was holding the other man against the wall.” The witness then drove up behind the men at the curb and was getting out of the car when Mr. Brown shouted that defendant had robbed him. Defendant started to walk south on Laflin and threw a wallet into the air. Defendant was told to stop, but when he continued walking, the witness and his partner grabbed him by the arms. A search of defendant’s person at the scene revealed $7 in bills and a dollar in change. Defendant was not carrying a weapon.

Dale Finstrom, for the State:

He is a police officer, and his testimony was substantially the same as that of Officer Glynn. However, he could not testify that defendant was “actually using any force as opposed to Mr. Brown.”

Michael Malone, on his own behalf:

On the night in question, he was headed home, after leaving the 1340 Club on Madison Avenue, walking southward on Laflin toward the bus stop at Adams and Laflin. He noticed a police car parked on Laflin near the intersection of Monroe. He continued down the street and noticed a man leaning against the wall of a building at the northeast comer of Adams and Laflin. The man was staggering, as if something was wrong, and mumbling, but defendant didn’t understand what he was Saying. He noticed a wallet, keys, papers and medicine “that was on the ground falling out.” He asked if anything was wrong, but the man kept up the incoherent mumbling. The man began to fall, so defendant put his “hand around him and grabbed him to keep him from falling.” When Brown was balanced, defendant started picking up the articles that were strewn on the ground.

The police then drove up and Brown told them he had been robbed. Defendant was frightened, and the objects fell from his hands. He did not walk away but went to the squad car when the police asked him to. He was frisked and taken to the station, where the police took $7 from him and gave it to Mr. Brown. He had $33 in his pants pocket when he was taken into custody. He denied threatening Mr. Brown or taking any of his money.

OPINION

Defendant initially contends that he was not proven guilty beyond a reasonable doubt, as the evidence is wholly lacking in proof of the use of force. In order to prove robbery, the State must show a threat or use of such force as to overcome the power of the owner to retain his property. People v. Williams, 23 Ill2d 295, 485. The victim testified that defendant, a total stran178 NE2d 372; People v. Hampton, 44 Ill2d 41, 253 NE2d ger, approached him from behind and ordered him to face a wall. Defendant kept his right hand in his pocket during the entire incident. These circumstances obviously produced in the victim a reasonable fear which induced him to part with his property against his will. See People v. Carpenter, 71 Ill App2d 137, 217 NE2d 337. The testimony was sufficient to support defendant’s conviction. While the officers’ testimony furnished only partial corroboration of the victim’s account, and it was contradicted by the accused, a conviction will stand, nevertheless, if the testimony of a single witness is positive and credible, as it was in this case. People v. Davis, 103 Ill App2d 418, 424, 244 NE2d 381.

It is also urged that the trial court erred in refusing to permit defense counsel, during closing argument, to present to the jury his interpretation of “reasonable doubt.” We believe that the court was correct. The IPI Committee, on the basis of innumerable cases through the years, recommends that no instruction be given defining “reasonable doubt” because it is a term which needs no elaboration, and to attempt to define it is futile. IPI, Criminal, § 2.05. If the trial court is to be so limited, it becomes evident why the court, in turn, must have discretion to deny counsel an opportunity to offer his own comments on the meaning of “reasonable doubt.”

Defendant next contends that the prosecutor’s final argument was prejudicial and denied him a fair trial. The prosecutor made reference to defense counsel’s argument in which he had doubted that any person would commit a crime on a public street corner, as alleged in the instant case, where “anybody could see both of these men.” The prosecutor then mentioned a prior occurrence in the courtroom, evidenced by a bullet-crack in the floor, where a spectator had shot at the judge. We believe that, under these circumstances, the prosecutor had been invited to reply, as he did, to the argument initiated by defense counsel. See People v. Hardaway, 108 Ill App2d 325, 330, 247 NE2d 626; People v. Edwards, 98 Ill App2d 128, 135, 240 NE2d 430. The nature of the prosecutor’s comment was a fair response, and not such as would arouse passion or prejudice in the jury. Accordingly, we find that defendant was not thereby denied a fair trial.

Defendant’s final contention is that, at the post-trial hearing in aggravation and mitigation, the court improperly considered defendant’s prior convictions in Boy’s Court in determining the sentence. This argument is without merit, as it confuses Boy’s Court with Juvenile Court. Defendant places reliance on In re Gault, 387 US 1, to support his theory that no evidence of prior convictions should be considered unless the proceedings resulting in the conviction and sentencing had been “clothed with the trappings of due process.” Gault has no application in the instant case since it is concerned solely with the adjudicatory stage of a “juvenile proceeding.” Boy’s Court is simply a branch of the First Municipal District of the Circuit Court (Ill Rev Stats 1967, Const art VI, §§ 1 and 8), and its proceedings may result in routine misdemeanor convictions, whereas “juvenile proceedings” exist by authority of the Juvenile Court Act (Ill Rev Stats 1967, c 37, § 701-1, et seq.). We find no impropriety in the court’s sentencing procedure in the instant case.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and LEIGHTON, JJ., concur.


author: JUSTICE DRUCKER.

text:
    Arlene L. Overhage, Plaintiff-Appellant, v. Thomas R. Overhage, Defendant-Appellee.
    Gen. No. 54,180. (Abstract of Decision.)
    First District, Fourth Division.
    June 10, 1970.

      Albert Koretzky, of Chicago, for appellant;
    Irving Goodman, of Chicago, for appellee.
   Opinion by

JUSTICE DRUCKER.

Not to be published in full.


author: RYAN, J.

text:
    Robert L. Eley, et al., Petitioners-Appellants, v. William E. Cahill, Reginald Du Bois, and Quentin J. Goodwin, Commissioners, Chicago Civil Service Commission, The City of Chicago, a Municipal Corporation, and Orlando W. Wilson, Superintendent, Department of Police, City of Chicago, Defendants-Appellees.
    Gen. No. 52,819.
    First District.
    June 12, 1970.
    Rehearing denied July 28, 1970.

      Elmer Gertz, of Chicago (Wayne B. Giampietro, of counsel), for appellants.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Stuart Sikevitz, Assistant Corporation Counsel, of counsel), for appellees.
   RYAN, J.

Plaintiffs, employees in the Animal Care Unit of the Police Department of the City of Chicago, filed their amended petition for mandamus to compel the Civil Service Commission and the Superintendent of Police of the City of Chicago to elevate these employees in Civil Service grade and rank to the same pay scale as regularly classified patrolmen of the Police Department. A second count of the amended petition requests back salary for the plaintiffs. The trial court granted defendants’ motion to dismiss the petition on the grounds that the petition was insufficient in law to state a cause of action for mandamus.

Up to and including December 31, 1958, these employees were classified in a higher grade and were paid a salary equal to patrolmen of the Police Department. On or about January 1, 1959, they were reclassified as civilian employees of the police department for compensation purposes and placed on a lower pay scale than the patrolmen.

Plaintiffs contend that the classification of these employees at a lower grade than patrolmen by the Civil Service Commission is haphazard, unreasonable, arbitrary, capricious, an abuse of discretion, and not based on substantially different duties, authority and responsibility as required by the Municipal Code of the City of Chicago, (Chicago Municipal Code, Section 25-31). In support of their contention that these employees do not perform substantially different duties nor have substantially different authority and responsibility than patrolmen, plaintiffs alleged that they must: take the police department oath to uphold and enforce the laws the same as all other personnel; purchase and wear uniforms which are similar if not identical to those worn by patrolmen; wear a badge; purchase revolvers and ammunition; work the same shifts; enforce state laws and city ordinances and exercise powers of arrest in conjunction therewith; respond to calls on the police radio and operate police department equipment such as trucks; submit to all of the rules and regulations applicable to sworn personnel and sign the department of police code of ethics; and finally, in all other ways perform the functions and duties of a patrolman assigned to a special detail of the police department. Plaintiffs further allege that regularly classified patrolmen are presently, and have been in the past, assigned to the Animal Care Unit and are assigned to the same functions and duties as plaintiffs without regard to the differences in classification.

For the reasons set forth below, we believe that the decision of the trial court in granting defendants’ motion to dismiss the amended petition for mandamus was correct and should be affirmed.

With reference to mandamus proceedings, if the plaintiff is to prevail, he must show a clear legal right to the relief sought. Bengson v. City of Kewanee, 380 Ill 244, 43 NE2d 951; Osborne v. Bradford, 346 Ill 464, 179 NE 118; People ex rel. Comm’rs of Big Lake Special Drainage District v. Dixon, 346 Ill 454, 178 NE 914. It is essential that the petition allege sufficient material facts to demonstrate such clear legal right. Such was not done in the instant case. The most that can be said for the petition is that it alleges facts which indicate that the plaintiffs’ incidental authority and duty are somewhat similar to those of regularly classified patrolmen. Although the petition states that petitioners are required by rules, regulations and orders to do certain things, nowhere is it factually averred that the petitioners actually did or do primarily perform the functions of patrolmen. The statement in the petition that they perform the same functions and duties is merely a conclusion and is not a statement of fact. In fact, the notice of the Civil Service examination for the two positions which is attached to the motion to dismiss indicates a substantial difference in the duties, responsibility and authority of the two offices. It is not sufficient that some duties of these employees coincide with duties of patrolmen if such duties are only incidental or auxiliary duties which these employees are required to perform. The Civil Service Code previously referred to requires “substantially similar duties, authority and responsibility,” before the same classification and pay scale is required. Accordingly, the amended petition herein has failed to allege facts as contrasted with conclusions which establish the essential elements of the ordinance.

In City of Decatur v. Vermillion, 77 Ill 315, the plaintiff was hired as the city poundmaster and was also clothed with the general authority of a city policeman. Subsequently, the plaintiff filed an action against the city for an increased salary based upon alleged services which he claimed to have rendered as a city policeman. In holding for the city, our Supreme Court stated at page 317:

“. . . The power to act as a policeman was only auxiliary to the office of poundmaster, and was only conferred to enable him to fully perform the duties of his office of poundmaster.”

In the case at bar, the plaintiffs herein were hired and classified as employees in the Animal Care Unit of the police department. It is not unreasonable that they be given certain powers of a patrolman in order to enable them to fully perform the primary duties of their position. The cases cited by the plaintiffs say nothing more with regard to this controversy than that mandamus will lie in a proper case and that the same salary grade would be warranted only if the plaintiffs were, in fact, regularly acting as patrolmen and performing regular patrolmen functions. We find no disagreement with those cases. No authority has been cited to this court, however, to support the proposition that a civil service employee is to be classified and paid a salary for functions and duties which are only incidental and auxiliary to the principal execution of his calling.

The plaintiffs’ amended petition for writ of mandamus having failed to include the essential allegations of fact discussed above was deficient and failed to show a clear legal right to the relief sought and was therefore properly dismissed.

Neither are plaintiffs’ allegations that regular patrolmen are occasionally assigned to the Animal Care Unit duties persuasive. The determinative question is not whether regularly classified patrolmen are assigned to Animal Care Unit functions but, rather, whether the plaintiffs are, in fact, assigned to the regular performance of patrolmen functions.

The amended petition also fails to allege that any demand for the relief sought was made upon the defendants and that performance was refused or that such a demand would have been unavailing. In general a demand for performance and a refusal to comply therewith are conditions precedent to the maintenance of mandamus to enforce a private right. 26 ILP Mandamus, Sections 12 and 13. In People ex rel. Edelman v. Hunter, 350 Ill App 75, 111 NE2d 906, the court held that the failure to allege a proper demand for performance and a refusal to comply rendered the petition for a writ of mandamus defective. See also Murphy v. City of Park Ridge, 298 Ill 66, 131 NE 256; People ex rel. Hollie v. Chicago Park District, 296 Ill App 365, 16 NE2d 161. Since the amended petition in the present case fails to allege a demand and refusal or facts which indicate that such a demand would have been unavailing, the amended petition was defective and was properly dismissed.

Having concluded that the amended petition was properly dismissed for the above reasons, we find it unnecessary to consider the other reasons presented by the defendant to sustain the decision of the trial court.

Accordingly, the order of the trial court dismissing the amended petition for writ of mandamus will be affirmed.

Affirmed.

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


author: GOLDENHERSH, J.

text:
    Clairol, Incorporated, a Corporation, Plaintiff-Appellant, v. Jack Bender, Defendant-Appellee.
    Gen. No. 53,423.
    First District.
    June 12, 1970.

      Pattishall, McAuliffe & Hofstetter, W. Thomas Hofstetter, and John H. Andrew, of Chicago (Weil and Lee, of New York, of counsel), for appellant.
    Miller and Pomper, of Chicago (Leonard B. Miller, of counsel), for appellee.
   GOLDENHERSH, J.

Plaintiff appeals from the order of the Circuit Court of Cook County finding the defendant not to be in contempt of court, and vacating an injunction, the alleged violation of which is the basis for the contempt proceeding.

Plaintiff is a manufacturer of hair care products, including hair dyes. Its products are sold to beauty salons for use by professionally trained beauticians, and are also sold at retail for nonprofessional use.

Hair dyes intended for professional use are packed in cartons of six and sold directly to beauty salons and schools, and to jobbers who supply professional beautidans. Hair dye intended for nonprofessional use is sold in individual cartons. The labels for products intended for professional use bear the following legend:

“PROFESSIONAL USE ONLY WARNING
“Cautionary statements regularly required for sale to nonprofessionals and instructions essential to the use of this product by nonprofessionals are not included on bottle labels. Nonprofessional sale may result in prosecution under federal law.”

The labels for nonprofessional, or consumer products, contain considerably more detailed instructions for use, and include instructions regarding hypersensitivity and possible eye damage, some of which are prescribed by state and federal statutes and regulations.

On August 20,1965, plaintiff filed an action and alleged in its complaint that defendant, then doing business in Park Forest, was selling plaintiff’s professional type MISS CLAIROL HAIR COLOR BATH at retail to nonprofessional users for home application, thus endangering plaintiff’s valuable reputation and good will, and endangering in rem seizure of its products under state and federal statutes. It sought injunctive relief, damages, and an accounting of profits.

The case was referred to a Master in Chancery and after extensive hearings a consent decree was entered which recites that defendant is engaged in business in Park Forest and provides:

“3. That defendant at his aforesaid place of business, has sold to the general public (i. e. nonprofessionals) bottles of MISS CLAIROL HAIR COLOR BATH and other products which were packaged, labeled and distributed by plaintiff for professional use only.
“4. That defendant, his agents, employees, servants, privies, representatives, and any and all persons acting by, through or under authority from defendant, shall be and hereby are permanently enjoined and restrained from selling to the general public (i. e., nonprofessionals) bottles of MISS CLAIROL HAIR COLOR BATH and other products which are packaged, labeled and distributed by plaintiff for professional use only; provided that plaintiff shall give defendant at least twenty (20) days notice in writing (by certified mail) prior to the institution of any contempt proceeding based upon defendant’s sale or offering for sale of any product not presently packaged, labeled and distributed by plaintiff for professional use only and provided defendant shall not be liable for the sale or offering for sale of said newly labeled product during said twenty (20) day period.”

On August 29,1967, plaintiff filed its petition for a rule to show cause why defendant should not be punished for repeated violations of the injunction writ issued pursuant to the consent decree. The petition is supported by the affidavit of plaintiff’s attorney which states that investigation by plaintiff has revealed repeated violations of the injunction. A supplemental petition filed on November 29, 1967, alleges specific purchases by shoppers of MISS CLAIROL HAIR COLOR BATH packaged, labeled and distributed for professional use only. The supplemental petition is supported by the affidavits of four shoppers employed by the law firm which represents plaintiff in this litigation.

The court heard testimony, and numerous exhibits were offered and received in evidence. The trial court filed a comprehensive memorandum and entered the following order:

“This cause having been assigned to this court to trial for the issues, all parties having been present in court through their attorneys, the court having heard all the evidence presented on Plaintiff’s Petition for Rule to Show Cause, and Rule Defendant’s Motion and Petition to vacate the Injunction therein, the court having filed a Memorandum of Opinion;
“IT IS HEREBY ORDERED that the Rule to Show Cause is discharged and the JACK BENDER is found not in contempt of this court.
“IT IS FURTHER ORDERED that the injunction previously entered in this court and by this court be and the same is hereby vacated for the reasons incorporated in the memorandum of law hereto filed.
“IT IS FURTHER ORDERED that counsel for the parties submit an Injunction Order to correct the defects of the vacated Injunction within 30 days.
“IT IS FURTHER ORDERED that in the event no mutually acceptable injunction order is agreed to within 30 days, this court will retain jurisdiction of this Cause and will reset this matter for hearing to enter a Final Judgment.”

It is plaintiff’s contention that the record establishes a continuing pattern of wilful violation of the injunction, the decree conforms to the requirements of the statute, its terms are clear and definite, and the court erred in vacating the injunction to which defendant had previously consented. Defendant contends the injunction is ambiguous and unclear, plaintiff’s case fails because it has failed to prove injury, and the trial court has jurisdiction to modify its injunction to meet changing conditions of fact or of law.

We do not discuss the evidence in detail for the reason that to do so is of no precedential value. However, if this were a nisi prius court the finding based upon the record before us would be that the evidence shows defendant to have engaged in a pattern of conduct in violation of the injunction, and only the rule that the trial court’s finding should not be disturbed unless manifestly erroneous (People ex rel. Penrod v. Chicago & N. W. Ry. Co., 17 Ill2d 307, 161 NE2d 126) averts reversal.

Interpretation of the decree presents no difficulty. It clearly and unequivocally prohibits the sale to the general public of plaintiff’s product which are packaged, labeled and distributed for professional use only. Paragraph 4 of the decree gives defendant ample protection against an unwitting violation involving a new product.

In an opinion filed on April 29, 1970 (Tripoli Co. v. Wella Corp., 38 Law Week 2589) the Court of Appeals for the Third Circuit points out that the restraint of sales to the general public of cosmetic products intended for professional use is reasonable, appropriate and an exercise of the responsibility which the manufacturer owes the consumer.

In view of the conclusions reached it is not necessary to further discuss the contentions of the parties. Insofar as the order finds the defendant not guilty of contempt and discharges the rule to show cause the order is affirmed, and insofar as it vacates the decree entered on November 30, 1965, the order is reversed, and the cause is remanded with directions to expunge the portion of the order of May 7, 1968, which purports to vacate said decree, and to reinstate the decree.

Order affirmed in part, reversed in part and cause remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


author: ALLOY, J.

text:
    Geraldine Biedron, Plaintiff-Appellee, v. Lawrence Edward Quincannon, Defendant-Appellant.
    Gen. No. 53,444.
    First District.
    June 12, 1970.

      Greenberg, Ziv & McCarthy, of Skokie (Sherwin Greenberg, of counsel), for appellant.
    Gomberg, Missner & Schaps, of Chicago (Joel P. Schaps, of counsel), for appellee.
   ALLOY, J.

The trial court in the instant case directed a verdict for plaintiff, Geraldine Biedron, finding defendant, Lawrence Edward Quincannon, guilty of wilful and wanton misconduct. The jury in the cause, consequently, determined only the question of damages.

The facts are undisputed. Defendant Lawrence Edward Quincannon met plaintiff Geraldine Biedron in a tavern on the evening of January 3, 1963. Following the consumption of a few bottles of beer, the couple went to a restaurant where they ate and defendant drank four cups of coffee. They then proceeded east along North Avenue with defendant driving his automobile. Defendant slowed down to approximately 15 miles per hour at the intersection of Elston Avenue for the purpose of making a left turn onto Elston. At the time defendant was turning to the left he was going about 10 miles per hour. Just after completing the turn around the corner and crossing the center of North Avenue, defendant “stepped on the gas” to accelerate. Defendant testified that the front of his car passed the north curb of Elston Avenue before he accelerated. As defendant stepped on the gas, the gas pedal stuck. This caused the engine to race. Defendant reached down to dislodge the accelerator, placing his head below the level of the front window of the car. During this period of time defendant kept his left hand on the steering wheel as he reached down to dislodge the gas pedal. While defendant was pulling up on the gas pedal and with his head still below the window level, the automobile he was driving collided with a parked automobile on the east side of Elston Avenue. At the time defendant collided with a parked car, defendant testified that he was traveling about 25 miles per hour. Plaintiff who was sitting in the front seat beside defendant, was thrown forward against the dashboard and sustained injuries.

Defendant testified that the gas pedal in his automobile had stuck about three or four months previously and that he fixed it himself, since he was a mechanic. He had previously fixed it by working under the hood of the car and making adjustments on the air cleaner. Plaintiff’s testimony was substantially the same as defendant, with the exception of her estimate of the speed at which defendant was driving down Elston Avenue. Plaintiff also stated that she told defendant to slow down. At the close of all the evidence, plaintiff, moved for a directed verdict on the question of liability. The trial judge granted such motion, and, in effect, found that defendant was guilty of wilful and wanton misconduct as a matter of law. Following such direction of verdict the jury, considering the question of damages only, fixed damages for plaintiff at $2,500.

The issue in this Court, therefore, is whether the trial court was correct in directing a verdict for the plaintiff on the question of liability and in thus finding defendant guilty of wilful and wanton misconduct as a matter of law on the basis of the record.

The Courts of this State have had many occasions to consider the question of wilful and wanton misconduct but, so far as we have been able to discover, there has never been a reported case in courts of review in this State where the trial judge has found, as a matter of law, that a defendant was guilty of wilful and wanton misconduct. As stated in Schneiderman v. Interstate Transit Lines, Inc., 394 Ill 569, 69 NE2d 293, at 583:

“A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. (Brown v. Illinois Terminal Co., 319 Ill 326; Heidenreich v. Bremner, 260 Ill 439; Illinois Central Railroad Co. v. Leiner, 202 Ill 624.) The question whether a personal injury has been inflicted by wilful or wanton conduct is a question of fact to be determined by the jury. Bernier v. Illinois Central Railroad Co., 296 Ill 464.”

This definition of wilful and wanton misconduct has been approved in many cases (Rowe v. Frazer, 83 Ill App2d 367, 375, 227 NE2d 781).

On the basis of the record before us, the actions of defendant which could result in the finding of wilful and wanton misconduct on his part consisted, first, of driving an automobile which had a faulty gas pedal which stuck three or four months before. Defendant testified that he was a part-time mechanic and that he fixed the pedal by making an adjustment under the hood. There was no showing of any malfunction of the gas pedal from the time defendant fixed it until the date of the accident on January 3, 1963. On the basis of the record, this particular circumstance could not amount, unquestionably, to wilful and wanton misconduct. Secondly, upon the day of the accident in question when defendant reached down to dislodge the pedal when it stuck, he lowered his head below the level of the window but kept his left hand on the steering wheel. The circumstance that defendant could have taken some other course of action does not mean that what he actually did was necessarily wilful and wanton. As stated in Tygett v. Penry, 344 Ill App 427, 430, 101 NE2d 442;

“The question of whether or not defendant’s conduct in meeting and solving the emergency caused by the fact that the other automobile turned out suddenly, must be judged by the standard of what a prudent person would have done under similar circumstances (Roady v. Rhodes, 326 Ill App 49). The fact that defendant might have taken some other course would not necessarily indicate that actions taken by defendant constituted wilful and wanton misconduct. If defendant made errors in judgment in an emergency which were accompanied by no evil intent or purpose, or any consciousness of probable injury, it would not establish wilfulness or wantonness.”

Many Illinois cases have determined that the question of whether or not conduct is wilful and wanton is usually a jury question (Kamholtz v. Stepp, 31 Ill App2d 357, 176 NE2d 388; Zank v. Chicago R. I. & P. R. Co., 17 Ill2d 473, 161 NE2d 848). In determining this issue, we must always clearly understand that when a verdict is directed, a trial court should view the evidence in the light most favorable to the nonmoving party, which in this case would be the defendant (Stephens v. Weigel, 336 Ill App 36, 82 NE2d 697; Hatfield v. Noble, 41 Ill App2d 112, 190 NE2d 391).

One Illinois case has been reported which is quite similar to the instant case on the facts. In the case of Busch v. Oliphant, 332 Ill App 426, 75 NE2d 387, the defendant knew of the defective condition of an accelerator two or three weeks before the accident and had been told by his father to have it repaired. Plaintiff knew nothing about that defective condition. In that case, the accelerator stuck and the car began to speed. There were automobiles parked along the side of the street and instead of trying to reduce the speed or stop the car, defendant put his head below the windshield where he could not see ahead. Even under such circumstances, the court in that case stated that the question of whether or not defendant was guilty of wilful and wanton misconduct should have been submitted to the jury.

On the basis of the facts in the record in the instant case, it is apparent that the issue of whether or not defendant was guilty of wilful and wanton misconduct should have been submitted to the jury and it was not proper for the court to direct a verdict of guilty on the issue of wilful and wanton misconduct on the record. The judgment of the Circuit Court of Cook County will, therefore, be reversed and this cause will be remanded to such court for a new trial.

Reversed and remanded.

RYAN, P. J. and STOUDER, J., concur.


author: MR. PRESIDING JUSTICE CRAVEN

text:
    Bronius Jancauskas, Plaintiff-Appellant, v. Tow Motor Corporation and Container Corporation of America, Defendants-Appellees.
    Gen. No. 53,524.
    First District.
    June 12, 1970.

      Marvin I. Schneider, of Chicago (Neal Mermall and Barry Weiss, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith and Dennis J. Horan, of counsel), for appellee.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

This appeal is by plaintiff from an order dismissing this cause for failure of plaintiff to be personally present at a pretrial conference and denying plaintiff’s motion to reinstate the cause, and from an order denying plaintiff’s motion for a continuance of the pretrial conference.

On September 6, 1966, plaintiff filed this action for personal injuries allegedly caused by negligence of the defendants on March 1, 1965, when a lift truck operated by an employee struck plaintiff, causing fracture of all toes of his right foot, resulting in amputation of the great toe and hospital confinement on three separate occasions, and rendering him unable to work for in excess of six months.

The cause was assigned to Judge David Canel for pretrial conference. On June 20, 1968, the court entered an order setting pretrial conference for July 30, 1968. The order required plaintiff to be personally present and further provided that if plaintiff were not present the case would be dismissed.

On July 25, 1968, plaintiff’s attorney wrote plaintiff notifying him of the pretrial conference and of the necessity of his presence. On the afternoon of July 30, plaintiff’s attorney, Marvin I. Schneider, was engaged in a trial in another division of the court. His associate, David E. Feldman, who was familiar with the case and who was scheduled to appear at the pretrial conference, was called by his wife who was six months pregnant, and was told that she had become suddenly ill and required immediate assistance. Mr. Feldman requested Neal Mermall, an attorney who shared offices with Schneider, to attend the pretrial conference for him. Feldman failed to explain to Mermall that plaintiff was out of town and could not be present.

At 4:00 p. m. on the afternoon of July 30, Mermall appeared in Judge Canel’s courtroom, where also present were attorneys representing one of the defendants. At approximately 4:45 p. m. Judge Canel came into the courtroom and stated that he was behind schedule and that it would be some time before he could reach this cause. The judge was then advised of the circumstances leading to Mermall’s presence and of his lack of knowledge as to plaintiff’s absence. Both attorneys then requested a continuance of the pretrial conference. The court denied the motion and entered an order dismissing the cause. Thereafter, the court denied a motion by plaintiff to vacate the order of dismissal and reinstate the cause. It appears that plaintiff was absent because he had taken a prescheduled vacation to go to Ohio on July 26 to make preparations for his daughter’s wedding, and that the letter notifying him of the pretrial conference did not reach him prior to his leaving.

The proceeding before the trial court was a pretrial conference, the principal purposes of which were to simplify the issues, seek stipulations and admissions as to facts or exhibits, and inquire into possible settlement. No trial was then imminent. No witnesses, court reporters or jurors were present. The trial judge was running behind schedule and informed those present that it would be some time before the matter could be heard. At this point the judge was advised that the attorney handling the matter, who could explain plaintiff’s absence, was attending to emergency medical needs of his wife. It was in this standing of the case that attorneys present for both plaintiff and defendant moved for a continuance of the pretrial conference.

The trial judge has broad discretion in allowing or denying a motion for continuance under the Civil Practice Act (Ill Rev Stats 1967, c 110, § 59), but it is discretion which must be exercised judiciously, and not arbitrarily. In Booth v. Sutton, 100 Ill App2d 410, 241 NE2d 488 (1st Dist 1968), in reversal of the same pretrial judge for dismissal of the defendant’s counterclaim and denial of a motion to vacate and set aside the dismissal order, where the defendant’s attorney moved to excuse personal appearance of the defendant at a pretrial conference, the court acknowledged the wide discretion of a judge in compelling compliance with pretrial procedures, but also stated (at 415-416 (241 NE2d at 491)): “ ‘The dismissal of a party’s cause of action is drastic punishment and should not be invoked except in those cases where the actions of the party show a deliberate and contumacious disregard of the court’s authority.’ Allegro v. Afton Village Corp., 9 NJ 156, 87 A2d 430 (1952).”

The pretrial conference is a technique to promote the disposition of litigation by cooperation and agreement. The purpose of the sanctions of Supreme Court Rule 219(c) (Ill Rev Stats 1967, c 110A, § 219 (c)) is to coerce this cooperation rather than to dispose of litigation as a form of punishment. The record in the instant case fails to show any act on the part of plaintiff to warrant so drastic a punishment.

Under the facts here present, we are of the opinion that the trial court abused its discretion in refusing to grant a continuance and in dismissing the cause.

Reversed and remanded with directions to reinstate the cause for further proceedings.

SMITH and TRAPP, JJ., concur.


author: MR. JUSTICE SMITH

text:
    Harry L. Cox and Charlotte S. Cox, His Wife, Plaintiffs-Appellants, v. Supreme Savings and Loan Association, a Corporation, Defendant-Appellee.
    Gen. No. 53,563.
    First District.
    June 12, 1970.

      Clarence J. Walsh, of Chicago, for appellants.
    Kent, Litow and Wagner, and Jerome F. Dixon, of Chicago, for appellee.
   MR. JUSTICE SMITH

delivered the opinion of this court.

The plaintiffs are the contract buyers and defendant is the contract seller of premises in Chicago occupied by a three-story building housing fourteen apartments. This suit was precipitated by a suit filed by the City of Chicago on January 25, 1967, against the seller, the purchasers and certain tenants of the property charging Building Code violations and seeking either that the building be brought into conformity or that demolition of the property take place. The issue is who pays for it? A preliminary contract was entered into in March 1962, and expanded into articles of agreement (Cole Form 74) dated July 1, 1962. Nothing remained to be done under the contract except for the buyer to complete his payments and for the seller to deliver its warranty deed. The buyer went into possession on the date of the contract, collected the rents, issues and profits, paid the taxes and insurance, leased the apartments and performed whatever repairs were done to the building. Under these circumstances the trial court held that the doctrine of equitable conversion applied and that even though defendant’s warranty deed would be dated after July 1, 1962, it spoke as of that date and there was, therefore, no breach of contract nor an anticipatory breach of the contract nor a breach of covenant of warranty due to the city’s suit on the part of the defendant. From this decree the plaintiffs appeal.

Previous to Shay v. Penrose, 25 Ill2d 447, 185 NE2d 218, it had been held in this State that a contract to convey at a future time did not create an equitable title and that the buyer’s estate would not ripen into an equitable title until he had performed all acts necessary to entitle him to a deed. Shay v. Penrose repudiated this concept and held that an equitable conversion takes place at the instant a valid and enforceable contract is entered into and that the buyer at that time acquires an equitable title. The doctrine of equitable conversion is actually an equitable fiction designed as an instrument to accomplish the intention of the parties and to ensure justice where technical rules of law might preclude it. It is bottomed on the equitable principle that equity regards as done that which ought to be done. At first blush, it would therefore seem that Shay is the answer to the integrity of the trial court’s decree and that the seller only held a naked legal title in trust for the buyer and the buyer in turn became the equitable owner of the property and held the purchase money in trust for the seller. This conclusion, the plaintiffs assert, flies squarely into the decisional law in this State and cannot properly be sustained.

It may be conceded that when the final payment is made on the contract in question and the defendant’s deed is delivered while the City’s suit for violation is still pending, the title is nonmarketable and the trial court’s decree requires the purchasers to accept a nonmarketable title. Ableman v. Slader, 80 Ill App2d 94, 224 NE2d 569; Hayne v. Fenton, 321 Ill 442, 151 NE 877. When was the defendant to provide a marketable title? Under the rider attached to the contract, it is recited that the seller at the time of the contract was the holder of a master’s certificate of sale under a mortgage foreclosure decree, that the period of redemption would expire on November 7, 1962, and that the seller would obtain a master’s deed and a guaranty policy from Chicago Title & Trust Company showing good and sufficient title in the seller and would within 30 days after November 7, 1962, submit the same to the purchasers for their inspection. The rider also required the purchasers to ask for consent and approval of the seller for any capital or major expenditures before any contract for such expenses could be made. The contract required the purchasers to correct five code violations at their own expense which had been set forth in a letter of April 2, 1962, from the Code Department of the City of Chicago. It seems almost axiomatic that this rider to the contract is attached to alter, modify or change the normal course of events as described in the articles of agreement. Indeed the contract is expressly stated to be “subject to a rider agreement . . . attached hereto.” There was no obligation on the part of the seller to furnish a title guaranty policy as of 1967 or a subsequent date nor was such the intention of the parties.

Paragraph five of the articles of agreement provided that “no right, title or interest, legal or equitable, in the premises aforesaid, or any part thereof, shall vest in the purchaser until the delivery of the deed aforesaid by the seller, or until the full payment of the purchase price at the time and in the manner herein provided.” In City of Chicago v. Mandoline, 26 Ill App2d 480, 168 NE2d 784, the property involved was sold on contract and the purchaser went into possession shortly after the execution of the contract. About three weeks later an inspection team of the city visited the premises, found numerous ordinance violations and sued both buyer and seller. A not guilty verdict was returned against the buyer and a guilty verdict was returned against the seller. The judgment of the trial court was upheld by the Appellate Court on the theory that the seller was not only the owner of the property and thus liable under the ordinance for any violations by the terms of the ordinance, but that under the articles of agreement he had complete control of the property to the exclusion of the contract purchaser. In that case the court found that factually the purchaser had only the right to occupy the premises as long as he made the monthly payments. The contract there involved is not controlling here for the very cogent reason that the factual situation there recited is far different from the one before us. The purchaser there could not record his contract nor could he sublet the premises, he could make no repairs which would constitute a lien, and was required to submit to the seller every contract, together with the plans and etc., for any improvements to the premises. In the case at bar, the purchasers exercised all of the rights of an owner and performed all the duties of an owner and were prohibited only from making major or capital improvements without authority of the seller. The purchasers’ rights here far exceeded the right to possession only. They, not the seller, exercised all of the prerogatives of ownership with the limitation as to capital improvements previously noted. The doctrine of Shay was recently reaffirmed by the Supreme Court in Rosewood Corp. v. Fisher, — Ill2d —, — NE2d —. We do not deem Mandoline controlling.

Even so, the purchasers say, the decree in this case is squarely contrary to Eade v. Brownlee, 29 Ill2d 214, 193 NE2d 786. Referring to language of paragraph five quoted above which was identical, the court stated at p 218:

“This clause clearly shows it was the intention of the parties that no equitable conversion would be made and that the purchaser would take no title in the premises until delivery of deed or full payment. Under this clause alone, the claim of equitable title in the purchaser sufficient to make mortgages is wholly defeated.”

The facts in that case are again far different from those in the case at bar and it must be read in the light of those facts. There the successor of the contract-seller declared a forfeiture and filed a suit to confirm the forfeiture, remove clouds from the title and for a writ of assistance. The defendants in the case had taken some mortgages for improvements on the property and it was their theory that they had a right to pay off the contract and then foreclose their mortgages on the theory that the contract purchaser was the equitable owner and had the right to mortgage the property. Quoting the proviso that no right, title or interest should vest in the purchaser until the delivery of the deed or until the payment of the purchase price, the court held that the making of the mortgages themselves was an act in violation of the articles of agreement. It should also be noted here that these mortgagees were undertaking to exercise equitable rights after the seller had already declared a forfeiture. It is thus clear that if the purchaser had no rights at this point, neither did the mortgagee. It is likewise clear that the mortgagees were seeking to protect some rights for improvements, which were described by the court as shoddy improvements at a ridiculous cost, and prompted the statement that these facts do not lend support to an equitable position sufficient to waive all of the principles the court had stated applied to the contract. Thus, the court in effect holds that the doctrine of equitable conversion will not be used to bring about an inequitable result. We have no quarrel either with that decision or with its result. Its principles are misplaced when applied to the facts before us.

The apartment building here was constructed under a permit issued under a 1951 ordinance. In 1956, the ordinance as amended was in force at the time of the contract between our parties. The 1956 ordinance made some building requirements that were not included in the 1951 ordinance. In April, prior to our contract, the property had been inspected by the city and there were five violations noted. In their contract the parties provided that the plaintiffs should pay for the correction of those violations. That was their understanding; that was their contract. The violations, however, for which the City of Chicago now files suit were in existence at the time of the inspection by the city and at the time the contract was entered into and were not mentioned. They were not mentioned because it was then thought that the city could not enforce the violations of the 1956 ordinance for the very simple reason that it did not apply retroactively. However in February, 1963, in Kaukas v. City of Chicago, 27 Ill2d 197, 188 NE2d 700, the Supreme Court held that such violations were now enforceable and were retroactive. In Kaukas, the Supreme Court permitted the enforcement of a municipal ordinance adopted and enacted after a particular building had been constructed and so it is here. It was there stated that it was not a denial of due process of law nor a deprivation of property without just compensation to exercise the police power in this fashion as to existing buildings. Until this pronouncement, both the purchaser and the seller were home free from prosecution for the violations contained in the city’s suit. It is fundamental that they contracted in the light of the law as it was at the time of their contract. Specific enforceable ordinance violations were called to their attention and their contract provided that the purchasers should pay for the expense of correcting them. They even went further and certified that those five violations which the purchasers were to correct were the only ones that had ever officially come to the attention of the defendant and the defendant warranted that fact. Both parties nevertheless were presumed to know the provisions of the 1956 ordinance. They are charged with knowing that the building was in violation at the time of the contract and that such violations were then unenforceable.

Actually we need not rely in totality either on equitable conversion or upon a speculative intention of the parties. Their language contained in the rider is specific. It recites that the seller is the owner of a Master’s Certificate, that the redemption period would expire on November 7, and on that date the seller “shall obtain a Master’s Deed and shall obtain from the Chicago Title and Trust Company a guaranty policy showing good and sufficient title in the Seller, and shall, within thirty days after November 7, 1962, submit same to the Purchasers for their inspection.” The contract further provides that in the event that a redemption is made or in the event that the seller fails to produce evidence of good and sufficient title “in the time and manner aforesaid” the purchasers shall within ten days of either event, at their election, be entitled to a repayment of all monies advanced and for all amounts paid or then owing by the purchasers for maintaining, operating and improving the premises less any rents collected by them. Seller agreed within thirty days after November 7 to furnish to the purchasers a guaranty policy showing “good and sufficient title” in the seller. Within that time limitation, there was no suit pending. There was nothing that made the title nonmarketable. There was no proviso in the contract calling for a title “free of violations” which would render the title nonmarketable. The existence of a Building Code violation is not in itself a violation of a covenant to provide a “good title.” See Ableman v. Slader, 80 Ill App2d 94, 224 NE2d 569. This was their contract. This was the time which they agreed upon, not the time when the warranty deed was to be delivered. Surely the purchasers would not assert that a new ordinance making new safety provisions for the operation of this apartment would be at the expense of the sellers. By the same token, it would appear that unenforceable violations should not be at the expense of the seller. To hold otherwise would preclude sellers from disposing of property without an agreement making such installment contracts specifically subject to any impositions of any kind imposed after the date of the contract. In the face of the rider to this contract, it is abundantly clear that paragraph five was in fact and in law nullified by the rider. It is fictional rather than factual to hold that the purchasers here under paragraph five of their agreement had nothing but a possessory right. To so hold is to fly into the face of the language and the conduct of both parties. A necessary concomitant of receiving equity is that one does equity. The decree of the trial court does just that and it is affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


author: STOUDER, J.

text:
    Trustees of Schools of Township Number 37 North Range Number 13 East, Cook County, Illinois, Plaintiff-Appellant, v. Chicago City Bank and Trust Company, as Trustee Under Trust Agreement Dated December 26, 1958, and Known as Trust Number 6125, and Edward J. Fisher, Defendant-Appellee.
    Gen. No. 53,770.
    First District.
    June 12, 1970.

      Klein, Thorpe, Kasson and Jenkins, of Chicago (Franklin W. Klein and Robert F. Peck, of counsel), for appellant.
    Foran & Wiss, of Chicago (Robert E. Wiss and Thomas T. Burke, of counsel), for appellee.
   STOUDER, J.

This is an appeal by Petitioner, Trustees of Schools of Twp. Number 37, North Range Number 13 East, Cook County, Illinois, from a judgment of the Circuit Court of Cook County in an eminent domain proceeding awarding $195,000 for land owned by the beneficiaries of a land trust in which Chicago City Bank and Trust Company is Trustee.

On June 29, 1967, petitioner school district commenced this eminent domain proceeding to have fair compensation determined for property owned by respondents situated at the northwest corner of 95th Street and Southwest Highway, Oaklawn, Illinois. The property is an irregularly shaped unsubdivided tract containing 46,315 square feet (1.0633 acres). Situated on the property are the remains of a brick motel and the foundations of a drive-in restaurant both of which were destroyed by a tornado in April, 1967. The remains of the buildings were considered detrimental to the value of the property. Applicable zoning permits commercial use of the property. The main commercial area of Oaklawn is about a mile and a half east of the subject property although the property both east and west of the subject property along 95th Street is generally commercial.

Petitioner presented the testimony of three valuation witnesses and the details of one comparable sale. Respondent presented the testimony of two valuation witnesses and the details concerning two comparable sales. The values expressed by petitioner’s experts ranged from $115,000 to $127,000. The values of respondent’s experts ranged from $208,500 to $210,000.

The jury returned a verdict for $195,000 upon which judgment was entered. Post-trial motions were denied.

Petitioner has made several assignments of error but the only ones we believe it necessary to consider are those relating to the evidence of comparable sales introduced by respondent.

Before discussing the details of the comparable sales presented by respondent, the details of the sale presented by petitioner will be discussed since it is related to one of the sales offered by respondent.

As indicated in the facts, the subject property is located on the northwest corner of 95th Street and Southwest Highway. Petitioner offered as a comparable sale the sale of the property located at the southeast corner of the same intersection, the property having been used and improved for commercial purposes, the buildings having been destroyed in the same tornado which destroyed the buildings on the subject tract. Six days before the condemnation petition was filed, the parcel on the southeast corner consisting of 20,000 square feet was sold for $53,000. The sale was by the lessor to the lessee and although the contract alluded to the settlement of claims between the parties there was no evidence other than that the sale was voluntary and the selling price was the fair cash market value of the property at the time.

In December, 1967, the same tract on the southeast corner of the intersection was sold again this time for $100,000. Respondent proposed this sale as comparable, and over objection of petitioner its details were admitted by the court. Although this sale is referred to by respondent as a cash sale, the $100,000 purchase price required the purchaser to pay $30,000 in cash, assume a $40,000 existing mortgage with seller accepting a $30,000 purchase money mortgage for the balance.

The principal objection to the sale urged by petitioner was and is that the trial court abused its discretion in admitting such sale because the sale took place six months after the petition was filed and no evidence was presented by respondent supporting the conclusion that the sale was unaffected by the improvement contemplated in the condemnation proceeding.

Petitioner relies primarily on three cases, City of Chicago v. Blanton, 15 Ill2d 198, 154 NE2d 242, Department of Public Works v. Finks, 10 Ill2d 15, 139 NE2d 267 and Department of Public Works and Buildings v. Dalessio, 101 Ill App2d 187, 242 NE2d 324. Such cases do not lay down any general rule as contended for by petitioner that sales of property made after the filing of the petition are rendered dissimilar as a matter of law merely because of the date of the sale. However, such cases are authority for the proposition that for such later sales to be considered similar, the party proposing them ought to be required to show that such later value was unaffected by the condemnation proceeding or the result thereof. In City of Chicago v. Blanton and Department of Public Works and Buildings v. Dalessio, supra, the trial court’s exclusion of sales after the filing of the petition was approved where it appeared that new and different considerations resulting from the improvement could have significantly affected the values of property thereafter. In fact, no case has been called to our attention in this jurisdiction where the admission of subsequent sales has been approved. Respondent cites Illinois Bldg. Authority v. Dembinsky, 90 Ill App2d 451, 233 NE2d 38, in support of his position but a review of the opinion reveals that the issue was not discussed by the court. Respondent quotes from the briefs filed in the Dembinsky case, but whether the argument was made or not is immaterial since the issue was not discussed in the opinion.

In our view, the nature and location of the comparable sale property in relation to the contemplated improvement as well as the earlier sale of the same property indicate that the value of the comparable sale property was enhanced by the improvement. Such a sale interjects so many speculative and collateral issues into the case that it ought not to be considered by the jury.

From the record it appears that such comparable sale could have significantly influenced the jury not only because of its own details but because it was relied upon heavily by respondent’s appraisers. Therefore, the error in considering the sale was prejudicial.

Over objection of petitioner the court permitted the introduction of another sale proposed by respondent. This was the sale of four 25-foot lots about one mile east of the subject property which property was improved with a filling station. The sale took place shortly before the petition was filed and the $50,000 selling price represeated the consideration for approximately 10,800 square feet.

In arguing that the filling station sale was dissimilar, petitioner presents the argument of improvement versus nonimprovement and subdivided versus nonsubdivided.

There is little argument but that evidence of other sales in the area occurring at or about the time of the valuation date are admissible when such sales tend to prove the value of the subject property. How dissimilar properties may be and yet have a sufficient tendency to aid in the valuation of the subject property, without at the same time interjecting improper collateral issues, is frequently a matter of dispute. Whether property has buildings on it or whether it is subdivided, are in essence questions of degree of improvement, and hence the appropriateness of considering them may not be resolved by easy formulas. In seeking to support the similarity of the properties, respondent offered testimony to the effect that the filling station would be torn down, thereby rendering the property similar. Intimately related to this question, the testimony revealed that the property had been purchased by an adjoining property owner for the purpose of enlarging his laundry and making a parking lot. Although petitioner only indirectly refers to the “special value” placed upon the property by the adjoining owner, we believe that such special value prevents the sale from being a similar sale as contemplated by the rules. If the filling station buildings are deemed of no value because of the special purpose and the special value placed on the premises by the adjoining owner, such sale can have no tendency to prove the value of the subject premises. If the cash consideration or selling price of otherwise similar property is not the fair cash market value of said property, the selling price can have no relevance to the issues to be determined by the jury. City of Mount Olive v. Braje, 366 Ill 132, 7 NE2d 851, Jefferson Park Dist. v. Sowinski, 336 Ill 390, 168 NE 370, West Skokie Drain. Dist. v. Dawson, 243 Ill 175, 90 NE 377 and Sanitary Dist. v. Boening, 267 Ill 118, 107 NE 810.

For the foregoing reasons the judgment of the Circuit Court of Cook County is reversed and remanded with directions that petitioner be granted a new trial.

Judgment reversed and remanded with directions.

RYAN, P. J. and ALLOY, J., concur.