author: STOUDER, J.

text:
    Burnex Oil Co., a Corporation, Plaintiff-Appellant, v. Dale Floyd, Marvin Homeyer, and Mobil Oil Company, a Corporation Defendants-Appellees.
    Gen. No. 52,848.
    First District.
    February 10, 1969.

      James B. McKeon, of Chicago, for appellant.
    McDermott, Will & Emery, of Chicago (Hamilton Smith and Frank J. Uvena, of counsel), for appellees.
   STOUDER, J.

Plaintiff Appellant, Burnex Oil Company, a Corporation, commenced this action in the Circuit Court of Cook County seeking damages against Dale Floyd, Marvin Homeyer and Mobil Oil Company, a Corporation, Defendants-Appellees. The fourth amended complaint which is the subject of this appeal, consists of two counts, the first based on conversion and the second based on loss of profits from wrongful eviction of plaintiff. Each of the parties filed motions for summary judgment with respect to each of the two counts of the amended complaint. The trial court denied both plaintiff’s and defendants’ motions for summary judgment with respect to count one (conversion) and directed that the cause proceed on the limited issue of whether the defendants had negligently removed the personal property of plaintiff located on the premises. Defendants’ motion for summary judgment on count two (wrongful eviction) was granted and judgment entered against plaintiff. It is from these actions of the trial court that plaintiff appeals.

From the pleadings and documents filed in support of the motions for summary judgment, the facts may be summarized as follows. Burnex Oil Company is an independent distributor of Phillips Petroleum products. In 1960, O’Hare Garage purchased the premises at 9230 Belmont Avenue, Franklin Park, Illinois, for the purpose of storing and transferring cars to and from O’Hare Field. The premises were improved with a factory type building. In order to supply gasoline and oil to the cars transferred and stored, O’Hare Garage entered into a lease with Burnex Oil leasing the 9230 Belmont premises to Burnex for a period of ten years. The lease provided that Burnex would install tanks, pumps, lights, etc. and would pay O’Hare Garage one cent on each gallon of gasoline pumped on the premises. On the same date a sublease was entered into between the same parties in which Burnex leased the same premises back to O’Hare Garage.

Thereafter at its expense, Burnex installed two, three-thousand gallon underground tanks, two pumps, signs and signposts together with an air compressor and hydraulic hoist on the premises. O’Hare Garage as sublessee and operator of the filling station premises, purchased gasoline and other supplies from Burnex until April, 1962. During this period Burnex made monthly payments to O’Hare Garage of the amount required by the lease. In April, 1962, O’Hare Garage discontinued its operations on the premises and terminated its sublease with Burnex. During the summer of 1962, O’Hare notified Burnex that it was intending to sell the premises to Dale Floyd and Marvin Homeyer, two of the defendants herein. The defendants did, in fact, purchase the premises by contract executed in August, 1962, and by deed executed and delivered in September, 1962. In October, 1962, a discussion took place concerning the purchase of gasoline by defendants from plaintiff at which time the plaintiff advised the defendants that the lower price (commercial wholesale price) which the defendants wanted to pay was the price applicable where the purchaser owned the equipment but that a higher price was payable where the company owned the equipment as did plaintiff. Thereafter, defendants operated the filling station in conjunction with other activities on the premises, purchasing gasoline at the higher price, from plaintiff until April, 1964. At that time defendants notified plaintiff that they intended to deal with the Mobil Oil Company and requested plaintiff to remove its tanks and other equipment. Plaintiff refused so to do relying upon its lease and also notified Mobil of its position. Although a representative of Mobil indicated nothing would be done, the tanks and other equipment were nevertheless removed in accord with directions from defendants Floyd, Homeyer and Mobil Oil. This action resulted as a consequence thereof.

The principal question raised on this appeal is whether plaintiff as lessee is entitled to enforce the provisions of its lease against a purchaser of the premises from the lessor.

The first question which we shall consider is the argument of defendants urged in support of the trial court’s decision that plaintiff had no enforceable rights under its lease. According to defendants, the sublease from plaintiff to O’Hare was not a sublease but an assignment, and as a consequence thereof, any interest of the lessee in the premises is extinguished. According to defendants, this consequence should follow even though all documents were recorded and would be equally applicable whether the transfer of the lease was to a third party or to the owner of the premises. Defendants rely on Sexton v. Chicago Storage Co., 129 Ill 318, 21 NE 920, Taylor v. Marshall, 255 Ill 545, 99 NE 638, Lyon v. Moore, 259 Ill 23, 102 NE 179 and Glanz v. Halperin, 251 Ill App 572. Such cases do not however, in our opinion, support the contention of defendants.

As we understand the argument of defendants and the cases upon which they rely, a transfer by a lessee of the entire term of the lease results in a transfer of the leasehold estate to the transferee, thereby creating privity of estate between the lessor and transferee although privity of contract remains between the lessee and his transferee. Although plaintiff argues that the transfer in the instant case did not constitute an assignment because the entire term of the lease was not transferred (the principal lease provided for extensions while the sublease did not), we believe such issue is immaterial. The doctrine which defendants seek to apply is based on the transfer of the leasehold estate. However, it is undisputed that the transfer agreement (sublease) was terminated by mutual agreement many months prior to the purchase of the premises by the defendants and such termination extinguished any leasehold interest which may have originally been transferred revesting the lessee therewith. It can hardly be said that after voluntary termination of the transfer agreement the transferee had any interest or obligation under the agreement.

Although what we have heretofore said disposes of the issue, we likewise have serious doubt that the doctrine is applicable where the terms of the principal lease require that the lessee make substantial improvements in order to carry out the purpose of the lease, such improvements are in fact made, and the transfer agreement does not contemplate transfer of the improvements so made. Although it is not possible from the record to ascertain whether the trial court agreed with such contention we find it is without merit and offers no support for the action of the trial court.

This brings us to what we consider to be the principal issue of this case. As against the claim of plaintiff to a leasehold interest in the premises do the defendants, Floyd and Homeyer, have the status of innocent purchasers of such premises, thereby entitling them to ownership of the premises unencumbered by any interest of plaintiff?

The parties agree on the general rule that a bona fide purchaser of real property from the record owner acquires good title thereto free and clear of any interest therein except such interest of which he has notice. It is admitted that the defendants purchased the premises from the record owner (plaintiff’s lease was not recorded), and hence the principal question is whether defendants had or are chargeable with notice of plaintiff’s interest. Such notice may be actual or constructive and contemplates the existence of circumstances or facts either known to a prospective purchaser or of which he is chargeable with knowledge which imposes upon such purchaser the duty of inquiry. Where real estate is in the possession of someone other than the record owner, such possession is generally regarded as notice to the world of the interest represented thereby and is legally equivalent to the recording of such interest. Carnes v. Whitfield, 352 Ill 384, 185 NE 819, and Slinger v. Sterrett, 283 Ill 82, 118 NE 1008. A purchaser is bound to inquire of the person in possession by what tenure he holds and what interest he claims in the premises. Carnes v. Whitfield, supra. Possession having the same effect as recording, charges a prospective purchaser with notice of all legal and equitable claims of the occupant. Ambrosious v. Katz, 2 Ill2d 173, 117 NE2d 69. Because possession has such substantial significance and consequences it follows that the possession or evidence of continuing acts of ownership thereof must be visible, open, exclusive and unambiguous. Atwood v. Chicago, M. & St. P. Ry. Co., 313 Ill 59, 144 NE 351.

Defendants in support of the trial court’s action assert plaintiff was not in possession of the premises, relying principally on the cases of Roderick v. McMeekin, 204 Ill 625, 68 NE 473, and Miliken Trust Co. v. Gregory, 292 Ill App 28, 10 NE2d 853, and hence they were under no duty of inquiry. Furthermore, defendants insist that the undisputed facts are that they purchased the property from the record owner (O’Hare Garage) with no knowledge of plaintiff’s lease and in reliance upon the owner’s representations in the contract and deed that there were no leases.

In the Roderick and Miliken Trust Company cases as in most of the cases in which the issue has been involved, the issue presented was whether the possession exercised by a party claiming under an unrecorded interest was sufficient to charge the purchaser thereof with notice when such purchaser was unaware of such possession. In the instant case, the defendants rely heavily upon the absence of persons either as subtenants or as agents of plaintiff on the premises in support of their conclusion that plaintiff was not in possession. Although the continuous occupation of the premises by a third party is not necessarily required to establish possession (see Thomas v. Burnett, 128 Ill 37, 21 NE 352), we would be disposed to hold if that were the only issue, that the mere presence of a vacant building on real estate bearing the brand name of a product sold, would not be sufficient possession to charge a prospective purchaser with notice thereof. However, plaintiff asserts (which assertion is completely ignored by defendants), that not only was their property visibly on the premises but defendants knew that such property was not owned by their seller.

We agree with plaintiff’s contention that its rights do not depend solely upon the visible presence of its property on the premises. It is undisputed that although plaintiff did not talk with defendants prior to their purchase of the property, shortly after defendants did take possession of the property, plaintiff’s representative discussed the purchase of gasoline by defendants from plaintiff. On this occasion the defendants acknowledged the plaintiff’s ownership of the property located on the premises which they had purchased. The affidavits of defendants alleged that they relied upon the representations of O’Hare (general representations in contract and warranties of deed) that there were no leases. However, the affidavits do not allege that O’Hare was the owner of the filling station equipment, that O’Hare represented that they owned such equipment, that the defendants believed O’Hare owned such property, that the defendants purchased such property from O’Hare or that the defendants were unaware that O’Hare did not own such property. The only fair inference which may be drawn from such circumstances is that defendants knew plaintiff’s property, rightfully on the premises, did not belong to the record owner, and as a consequence we believe defendants had knowledge of facts which imposed upon them the duty of inquiry.

The rationale of cases involving notice by possession is that the prospective purchaser is chargeable with knowledge of facts which are inconsistent with the claims of ownership by the record owner. Where a prospective purchaser has actual knowledge of facts which are inconsistent with the claims of the record owner, the prospective purchaser is not at liberty to ignore such facts. Whatever is sufficient to put a party upon inquiry is notice of all facts which pursuance of such inquiry would have revealed and without such inquiry no one can claim to be an innocent purchaser as against the party claiming an interest in the property supported by such notice. Ambrosious v. Katz, 2 Ill2d 173, 117 NE2d 69, and Bryant v. Lakeside Galleries, Inc., 402 Ill 466, 84 NE2d 412. We hold, therefore, that the defendants acquired the premises subject to the leasehold interest of plaintiff.

For the foregoing reasons the judgments of the Circuit Court of Cook County are reversed and remanded with directions that the Court proceed in accord with the views expressed herein.

Judgments reversed and remanded with directions.

ALLOY and CULBERTSON, JJ., concur.


source: Caselaw Access Project

author: ALLOY, P. J.

license: Public Domain

text:
    Employers' Liability Assurance Corporation, Ltd., a Corporation, Plaintiff-Appellee, v. Coronet Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 52,868.
    First District.
    February 10, 1969.

      Haft, Shapiro & Haft, of Chicago (Morris A. Haft, of counsel), for appellant.
    Teller, Levit & Silvertrust, of Chicago (Howard M. Turner, of counsel), for appellee.
   ALLOY, P. J.

The present action was instituted on a judgment entered in the State of Louisiana in favor of plaintiff, Employers’ Liability Assurance Corporation, Ltd., against defendant, Coronet Insurance Company, a corporation. The action was nominally to register the Louisiana judgment and to recover a new Illinois judgment thereon.

The background of the Louisiana judgment arose from the circumstance that Milton Cryer was insured with Coronet Insurance Company. On December 27, 1964, he was involved in an automobile accident with an automobile driven by David Alford and owned by James Alford, who were both residents of Louisiana. Two passengers were injured in the Alford car. Cryer died as a result of his injuries. James Alford was insured with plaintiff, Employers’ Liability Assurance Corporation, Ltd., and this policy provided uninsured motorists’ coverage.

The record disclosed that Employers’, by mistake, determined that Cryer was not insured, so they paid James Alford $2,625 for the loss to his automobile and paid $1,150 for settlement of the two injury claims to passengers in the Alford automobile. This made a total paid out of $3,775. When Employers’ insurance company found out that Cryer actually was insured with Coronet Insurance Company, Employers’ brought suit against Coronet Insurance Company and the administrator of the Cryer Estate. The action was instituted in Louisiana by Employers’ as subrogee of the car owner and the injured passengers. A Louisiana statute allowed a direct action to be filed as against Coronet Insurance Company. While Coronet first appeared specially in Louisiana, the Louisiana court obtained jurisdiction over Coronet when Coronet eventually defended the action. The Louisiana court entered judgment against Coronet for $3,775 on October 12, 1966, but there was no judgment entered against the Milton Cryer Estate or as against the widow of Milton Cryer individually.

The Coronet Insurance Company policy which insured Cryer, contained the following clauses which are relevant in the instant case:

“1. No person or organization shall have any right under this policy to join the company as a party to any action against the insured to determine the insured’s liability, nor shall the company be impleaded by the insured or his legal representative.
“2. No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.”

The Louisiana statute which permitted direct actions against insurance companies, provided in part as follows:

“No policy or contract of liability shall be issued or delivered in this state, unless it contains provisions to the effect that .... The injured person or his or her survivors or heirs hereinabove referred to, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Art 42, Code of Civil Procedure. This right of direct action shall exist whether the policy of insurance sued upon was written or delivered in the State of Louisiana or not and whether or not such policy contains a provision for bidding such direct action, provided the accident or injury occurred within the State of Louisiana.”

Illinois statutory law prohibits actions directly against an insurance company and the pertinent provisions of the Illinois statute are as follows: (1967 Ill Rev Stats, c 73, § 1000-Insurance Code)

“No policy of insurance against liability or indemnity for loss or damage to any person other than the insured, or to the property of any other than the insured, for which any insured is liable, shall be issued or delivered in this State . . . unless it contains in substance a provision that in case execution against the insured is returned unsatisfied in any action brought by the injured person ... an action may be maintained by the injured person . . . against such company . . . for the amount of the judgment in such action not exceeding the amount of the policy.”

The effect of such provision in the State of Illinois is that there can be no direct action unless a judgment is first obtained against the insured.

It is also noted that under the Illinois Civil Practice Act, c 110, § 25(2) (1967 Ill Rev Stats), which deals with the problem of bringing in additional parties to a lawsuit, there is a provision:

“Nothing herein applies to liability insurers or creates any substantive right to contribution among tort-feasors or against any insurer or other person which has not heretofore existed.”

After the judgment for $3,775 had been obtained in Louisiana, Employers’ filed a petition in Cook County, Illinois, to register the foreign Louisiana judgment. This proceeding is authorized under 1967 Ill Rev Stats, c 77, §§ 88-105. Defendant, Coronet, answered the petition to register the Louisiana judgment in Illinois and contended that such judgment should not be so registered or judgment entered on it. In Paragraph 6 of the answer of Coronet, it is specifically alleged that the judgment entered in the State of Louisiana is based upon a claim, the grounds of which are repugnant to the basic policy to the State of Illinois, and also that such action was brought contrary to the terms of the casualty policy issued by defendant and pursuant to a statute and the laws of the State of Louisiana, so that in truth and in fact, this action was brought upon such statute and not for the registration of judgment as the pleadings would have it appear. Employers’, in the Illinois action for registration of the Louisiana judgment, filed a motion to strike defendant’s amended answer to the petition to register the judgment. Upon the hearing held in Cook County, all of the Louisiana pleadings were presented to the trial court. At the conclusion of the hearing, the trial court in Illinois stated that from the pleadings it appeared that defendant had submitted to the jurisdiction of the court in Louisiana, and the court then sustained the motion to strike defendant’s answer and entered an order directing judgment in the sum of $4,032.25, plus costs of suit.

On appeal in this Court, defendant Coronet asserts that the action brought in the cause is a direct action as against the defendant and in violation of the policy provisions and the statutory law of Illinois; that it violates the public policy of the forum and; likewise, that the Louisiana direct action statute is procedural rather than substantive in character. It is also contended that the judgment rendered in Louisiana is not entitled to be registered in Illinois under the full faith and credit clause of the United States Constitution. Coronet further contends that the filing of a petition for registration of the foreign decree by the subrogee constitutes a direct action as against the defendant contrary to the policy terms and violates the public policy of the State of Illinois.

Cases cited by Coronet in support of its contention involve situations where the original action was begun either in the State of Illinois or in another State which prohibited direct actions as against insurance companies. In such cases there was an attempt to apply the law of some other state which allowed such direct action and the courts in this State refused to apply the foreign law on the ground that it was opposed to Illinois public policy. Marchlik v. Coronet Ins. Co., 40 Ill2d 327, 239 NE2d 799, to which defendant referred in its brief, was a case of this type. In the Marchlik case the Illinois court concluded that the direct action statute of Wisconsin was substantive law but that it was not applied in Illinois in an action directly against insurance companies because, as the court said, at page 332, “An examination of Illinois law and customs will, we believe, demonstrate that entertaining direct action suits is contrary to a firmly-fixed public policy.”

Defendant also cites a number of cases concluding that the Louisiana direct action statute is procedural, thus requiring that the law of the forum be applied to prohibit direct actions against insurance companies. It is noted, however, that these cases are applicable to the instant case only if the proceedings in Illinois to register the judgment can be held to be an original direct action against an insurance company. The other Illinois cases cited by defendant, Pohlman v. Universal Mut. Cas. Co, 12 Ill App2d 153, 138 NE2d 848, Piper v. State Farm Mut. Automobile Ins. Co., 1 Ill App2d 1, 116 NE2d 86, and Millsap v. Central Wisconsin Motor Transp. Co., 41 Ill App2d 1, 189 NE2d 793, all involved situations where part of the transaction took place in a foreign state and the initial action was begun in Illinois. There was an attempt to apply, in Illinois, the direct action statute of the other state. The cases are, therefore, distinguishable from the present situation. The initial filing in the case before us, and the proceeding following such filing, was in Louisiana. When plaintiff Employers’ came to Illinois they already had a judgment against Coronet, and the action in Illinois was not a direct action against Coronet under the direct action statute of Louisiana but was a proceeding on a Louisiana judgment in Illinois. The original action in Louisiana merged into or became part of the Louisiana judgment, and when the judgment came before the court in Illinois, it had the character of a Louisiana money judgment and was not a direct action in Illinois as against defendant insurance company. While defendant recites the general principle that the merger of a cause of action in a judgment does not mean annihilation or discharge of the debt so as to preclude examination of its character or nature for all purposes, we believe that for the purpose of an action on a foreign judgment in Illinois the court will not look behind the judgment itself to examine the nature of the cause of action.

Since the proceedings in Illinois to register the Louisiana judgment was not a direct action under the Louisiana statute against an Illinois insurance company, the next question is whether the Louisiana judgment is entitled to full faith and credit in Illinois. Defendant contends that it is not entitled to such full faith and credit, because Illinois courts have the right to decide which foreign laws will be enforced in Illinois. To sustain defendant’s position, defendant cites three Illinois cases (Wall v. Chesapeake & O. Ry., 290 Ill 227, 125 NE 20; Whitney v. Madden, 400 Ill 185, 79 NE2d 593; Campbell v. Albers, 313 Ill App 152, 39 NE2d 672). All of these cases involved an original proceeding in Illinois and the question which was presented was whether Illinois should have applied the law of a sister state. None of these cases involved the question of giving full faith and credit in Illinois to court proceedings already concluded in another sister state. The Wall case presented the question of whether the Illinois courts would allow a wrongful death action in Illinois based on an Ohio statute, with the death having taken place in Ohio. The Illinois court said (at page 230) that a “ . . . right which has accrued under a statute of a sister State of this Union will be enforced in the courts of this State unless prohibited by law . . . .” An Illinois act prohibits such action for a death occurring outside the State. The court was referring to the question of whether Illinois would apply the Ohio statute in an original proceeding begun in Illinois and this case cannot be cited as a basis for refusing to give full faith and credit in this State to Ohio court proceedings. The same conclusion must be stated as to the Whitney case where the Illinois court refused to take jurisdiction of a lawsuit involving nonresidents on the theory of forum non conveniens. The Campbell case also involved an Illinois proceeding where the question was the application of an Idaho statute. We must, therefore, conclude that we find no authority nor has any been cited to us which operates as a precedent for rejecting the action on the Louisiana judgment in the case before us.

The case of Fauntleroy v. Lum, 210 US 230, which was cited by the plaintiff, would appear to outline the correct rule which is applicable in the case before us. In the Fauntleroy case, an action was begun in Missouri based upon matters which had occurred in Mississippi. A judgment was obtained in the Missouri court in favor of plaintiff and defendant appeared and defended in this Missouri suit. The plaintiff there then brought an action in Mississippi based upon the Missouri judgment. Defendant argued that the Mississippi court should not enforce the Missouri judgment because the transaction had occurred in Mississippi and that under the Mississippi law this amounted to gambling on cotton futures and was illegal in Mississippi. The Mississippi court refused to enforce the Missouri judgment. The United States Supreme Court reversed and specified that the Missouri judgment was entitled to full faith and credit in the Mississippi court. The Supreme Court in such case said (at pages 236,237):

“The doctrine laid down by Chief Justice Marshall was ‘that the judgment of a state court should have the same credit, validity, and effect in every other court in the United States, which it had in the State where it was pronounced, and that whatever pleas would be good to a suit thereon in such State, and none others, could be pleaded in any other court of the United States.’
it
“Whether the award would or would not have been conclusive, and whether the ruling of the Missouri court upon that matter was right or wrong, there can be no question that the judgment was conclusive in Missouri on the validity of the cause of action. Pitts v. Fugate, 41 Missouri 405; State v. Trammel, 106 Missouri 510; In re Copenhaver, 118 Missouri 377. A judgment is conclusive as to all the media concludendi, United States v. California & Oregon Land Co., 192 US 355; and it needs no authority to show that it cannot be impeached either in or out of the State by showing that it was based upon a mistake of law. Of course a want of jurisdiction over either the person or the subject-matter might be shown.”

It is apparent that this is the situation in the present case. Just as the law of Mississippi disclosed that the transaction in the Fauntleroy case was gambling and contrary to Mississippi public policy, Illinois might also contend that direct actions against insurance companies are contrary to Illinois public policy. This argument was not accepted in the Fauntleroy case where the Mississippi court failed to enforce the Missouri judgment in Mississippi, nor can it be approved in the case before us as a ground for refusing in Illinois to enforce the Louisiana judgment in its court. Kenny v. Supreme Lodge, 252 US 411, cited by plaintiff, also supports this conclusion.

Defendant argues in this court that the original action in Illinois could not have been maintained as against the insurance company on the basis of the Louisiana statute. We agree that this is so. Defendant then proceeds to contend that since this is so, plaintiff should not be allowed to do indirectly what he is forbidden to do directly. We cannot agree with this conclusion for the reason that this procedure is exactly what has been recognized as appropriate in a number of cases. In Roche v. McDonald, 275 US 450, the statute of limitations in the State of Washington, prevented the enforcement of a Washington judgment. The plaintiff there proceeded in Oregon and filed a new action on the Washington judgment and obtained a new Oregon judgment. The plaintiff then filed an action on this new Oregon judgment back in Washington, and the court held that since the Oregon court had jurisdiction of the parties and the subject matter, its judgment was valid and binding in Washington. The fact that a similar judgment could not have been obtained by direct action in Washington was not controlling. Thereby, in effect, plaintiff did indirectly, by going to Oregon, what he could not do directly by proceeding in Washington.

It is apparent, therefore, that the public policy of the State of Illinois as expressed in the statute and as applied in the case before us, is not to be considered when a party proceeds in Illinois to register a judgment obtained in a foreign state. In Morris v. Jones, 829 US 545, at page 551, the court said:

“Such a judgment obtained in a sister state is, with exceptions not relevant here . . . entitled to full faith and credit in another state, though the underlying claim would not be enforced in the State of the forum .... The full faith and credit to which a judgment is entitled is the credit which it has in the State from which it is taken, not the credit that under other circumstances and conditions it might have had.”

A question was also raised in this cause as to whether an order was entered in the Illinois proceeding registering the judgment. Under 1967 Ill Rev Stats, c 77, § 94, it is obvious that no court order is necessary to register a foreign judgment. That act provides that:

. . if the court after hearing has refused to set the registration aside, the registered judgment shall become a final judgment of the court in which it is registered, binding personally upon the defendant.”

The judgment in the cause before us was registered by the filing of the petition. Following a hearing, the court entered a new personal judgment in accordance with the prayer of the petition, having found that there was no reason to set aside the registered judgment. The judgment, therefore, became final and appealable. The complaint prayed for a new Illinois judgment based upon the judgment of Louisiana. Such right of action exists under the laws of the State of Illinois.

Since the judgment which was entered in Louisiana is entitled to full faith and credit under the United States Constitution, and the public policy of Illinois does not prevent or prohibit such judgment being given such full faith and credit, we must conclude that the trial court correctly sustained the motion to strike the amended answer and likewise was justified in entering the judgment in this cause.

The judgment of the Circuit Court of Cook County is, therefore, affirmed.

Affirmed.

STOUDER and SCHEINEMAN, JJ., concur.


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Appellee, v. Joseph D’Argento and Michael Carracci, Appellants.
    Gen. No. 51,862.
    First District, Second Division.
    February 11, 1969.
    Rehearing denied March 21, 1969.

      Bellows, Bellows & Magidson, of Chicago, for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendants, Joseph D’Argento and Michael Carracci, were indicted and tried together under indictments charging them with the crimes of burglary and attempt murder. The jury failed to reach a verdict on the attempt murder charge and, on motion of the State, that indictment was stricken with leave to reinstate. The jury returned verdicts of guilty on the burglary charge on which judgments were entered. D’Argento, who had a record of prior convictions, was sentenced to a term of fifteen to twenty years and Carracci to a term of four to ten years in the penitentiary. They appeal.

The evidence shows that between 9:30 and 10:00 p. m. on December 3, 1963, night watchman Bert Rolan was conducting a routine check of the thermostat in a vacant furniture store next door to the Baer Brothers & Prodie clothing store located at 4132 West Madison Street in Chicago. Rolan noticed a man in a kneeling position on the floor of the furniture store and, with his gun drawn, ordered the man out of the premises onto Madison Street toward a police squad car parked a short distance away. Rolan described the man as being the same height and weight and as having the same type and color of hair and type of build as D’Argento, and clad only in shoes, trousers and a short sleeve white shirt. The temperature outdoors was around twenty-five degrees above zero.

As Rolan and the man arrived on Madison Street, a 1964 Ford automobile occupied by three men approached traveling westerly on Madison and slowed at the curb near the place where Rolan and his captive were standing. Someone in the rear seat of the automobile fired shots at Rolan, and someone in the automobile hollered, “Come on, Joe, come on,” and “Back off, copper.” Rolan’s captive broke away and entered the Ford automobile which then sped away westerly on Madison Street. A police car traveling easterly along Madison executed a U-turn and pursued the Ford. Rolan returned to the rear of the furniture store where he found a long steel bar, two heavy hammers, chisels, and a truck half filled with clothing later identified as the property of Baer Brothers & Prodie. Further investigation revealed a large hole in the common wall between the vacant furniture store and Baer Brothers’ store.

Chicago Police Officer Gilbert Broderick testified that he witnessed the proceedings outside the furniture store and pursued the Ford automobile in his squad car after the Ford sped westerly on Madison Street. After a three-block chase, the Ford went out of control attempting a turn onto Kildare Avenue and collided with a parked automobile. Four men got out of the Ford and ran west on Madison. Officer Broderick stopped his vehicle in front of the fleeing men, and got out and fired a warning shot. Three of the men ran into a nearby doorway where they were later apprehended by the officer; the fourth man escaped. Two of those arrested were the defendants, and the third man was identified as James Johnson. At the time of the arrests, D’Argento was wearing a short sleeve white shirt and no jacket. A search of the Ford automobile revealed an inoperative radio of the type used to monitor police calls and an assortment of heavy tools. Also recovered from the automobile was a loaded pistol and two spent cartridge casings.

Mr. Peter Yarvitsiotes testified that he was in the process of closing his restaurant on west Madison Street when he heard what sounded like gunshots coming from the outside. When he turned to see what was happening, he observed the Ford automobile, traveling west on Madison, swerve and strike an automobile parked in front of his establishment. He observed four men get out of the Ford and run west on Madison pursued by a police car. The police car stopped and the officer alighted from the vehicle and fired a warning shot. The men darted into a nearby doorway and were later arrested by the officer. The witness identified D’Argento as one of the three men arrested who the witness testified was wearing a short sleeve white shirt. Both defendants were cut about the face and were bleeding.

Defendant Carracci testified that for a few days prior to December 3, 1963, he had been kept home by a lingering cold. On December 3rd, D’Argento telephoned his home and invited him to dinner. After dinner, the pair went to a bowling alley where they stayed approximately forty-five minutes. They left the bowling alley with the intention of going to Carracci’s home, but decided to stop at a small restaurant near Kostner Avenue and Madison Street for a cup of coffee. As they were walking east on Madison they heard a crash and what sounded like the backfire of an automobile. Some men came running by and in a matter of seconds a police officer approached defendants and told them to get into a nearby doorway and to raise their hands. James Johnson was brought over and placed beside the defendants; Carracci testified that neither defendant had known Johnson prior thereto. He also testified that at the time of the arrest, D’Argento had been wearing a jacket over his white short sleeve shirt, but that an officer removed the jacket after the arrest. Carracci further stated that he and D’Argento received the cuts on their faces when they were beaten at the police station during interrogation.

The trial of this cause had been in progress approximately two weeks and the trial judge called counsel for both sides into chambers. The judge informed them that a juror that day told him he had received a telephone call from an anonymous caller who identified himself as “Mustache” and who told the juror, “I want you to find those fellows guilty.” The trial judge was advised by the juror that he told no other juror of the call, nor would he do so in the future, and also that the call would have no effect on his impartiality as a juror. Defense counsel moved for a mistrial, after which the assistant state’s attorney moved that the juror who had received the call be withdrawn and replaced with an alternate juror, to which defense counsel objected. The assistant state’s attorney then moved that the juror in question be brought into chambers for questioning by all concerned, but defendants again stood on their motion for a mistrial which was ultimately denied.

Defendants’ first contention is that the trial court erred in denying their motion for a mistrial for the reason that the fact that a juror had been approached by an anonymous telephone caller rendered a fair trial by an impartial jury impossible, and for the further reason that defendants were denied their constitutional rights to a public trial and to be present at all stages of the proceedings against them by the in camera examination of that juror by the trial judge without their or their counsel’s presence.

The fact that there is an unauthorized communication to a juror does not, of itself, render a fair trial by an impartial jury impossible. It is necessary to show that the unauthorized communication in some way prejudiced the defendant. People v. Berry, 18 Ill2d 453, 165 NE2d 257.

In People v. Williams, 38 Ill2d 115, 230 NE2d 224, the trial court allowed the jurors to telephone their homes and the calls were monitored by a bailiff. The family of one of the jurors pressured him because of his service on the jury and the court refused to grant a mistrial on that ground. Defendant there, as did defendants here, refused the court’s offer to withdraw the juror in question and replace him with an alternate. The court, on appeal, affirmed defendant’s conviction after noting that there was no evidence that defendant was in any way prejudiced by the incident.

A trial judge has a broad discretion in determining whether a mistrial will be declared. People v. Ray, 77 Ill App2d 166, 222 NE2d 176. At the time the motion for the mistrial was made, the trial had been in progress for two weeks. Defendants were offered two alternatives in remedying the incident of the anonymous telephone call, and the trial judge was assured by the juror that his impartiality would not be affected by the call. There is no showing that defendants were in any way prejudiced by the call, and we are of the opinion that the trial judge did not abuse his discretion in denying their motion for a mistrial.

The cases cited by defendants in support of their position are distinguishable on their facts. People v. Kawoleski, 313 Ill 257, 145 NE 203, involves a statement made by a deputy bailiff in charge of the jury in the presence of the jury, to the effect that it should take only a matter of minutes to find defendants guilty. In People v. Tilley, 406 Ill 398, 94 NE2d 328, a disorderly woman stated in the presence of the jury that she would free defendant if she were on the jury, after first having made disparaging remarks about one of the bailiffs in charge of the jury. See also People v. Murawski, 394 Ill 236, 68 NE2d 272, People v. Hryciuk, 5 Ill2d 176, 125 NE2d 61, and People v. Gambino, 12 Ill2d 29, 145 NE2d 42, all of which involve newspaper articles.

Defendants also contend that they were denied the constitutional rights to a public trial and to be present at all stages of the proceedings against them when the trial judge interrogated the juror in question out of their or their counsel’s presence. The State made a motion to bring the juror into chambers so that all parties concerned could examine him concerning the incident. However, defendants, represented by able and experienced counsel at trial, chose to stand on their motion for a mistrial, thereby waiving their rights in this regard. Defendants also declined the offer to withdraw the juror in question and to replace him with an alternate juror. A review of the record as to this aspect of the case reveals that the trial judge gave careful attention to the matter and afforded defendants all opportunity to protect their rights in this regard.

Defendants’ cases cited in support of their position are not in point. In State v. Wroth, 15 Wash 621, 47 P 106, the trial judge, at the request of the jury, entered the jury room where the jury were deliberating. No such situation is presented in the case at bar. In Shoultz v. State (Fla), 106 So2d 424, a Florida statute requiring that the defendant be present during all jury examinations was in force at the time the trial judge privately conferred with a juror about the case; the defense was not informed of this conference until after the verdict was returned. Here, on the other hand, the defense was informed of the conference between the trial judge and the juror during the trial and was offered alternatives to rectify any possible harmful effect the incident may have had, which offer was refused.

Defendants’ second contention is that the State’s instruction on flight was “directory” in nature, in that it instructed the jury that flight was an established fact rather than a finding which they may or may not derive from the evidence. That instruction reads:

“The Court instructs the jury that while flight from the scene of a crime does not, in and of itself, prove guilt, if it is of such a character that it indicates an attempt to avoid capture and thus shows a consciousness of guilt on the part of the defendant, it may be considered with all the other evidence in the case as a factor tending to show guilt.”

Also given to the jury were the following two instructions on flight submitted by the defendants:

“The Court instructs the jury that flight from the scene may be as consistent with innocence as with guilt and that it is not always dictated by impulse or purpose to escape the consequences of acts done or changes to be made. If the flight is unexplained it may permit an inference of guilt but it has no such significance when the conduct of the accused is equally, or more, consistent with some other hypothesis.”
“The Court instructs the jury that the circumstance of flight, where proved, raises no legal presumption that the defendants are guilty of the offenses charged against them. The fact of flight is a circumstance which may be considered by the jury as tending to prove guilt, but it must be considered in connection with all the other evidence in the case.”

It is clear from a consideration of all three instructions, which the jury considered as a series (People v. Epping, 17 Ill2d 557, 162 NE2d 366), that the effect of the “directory” tone of the State’s instruction was tempered by the instructions submitted by the defendants. Although IPI presently recommends that no instruction be given on the matter of flight, the recommendation did not exist at the time of this trial. IPI—Criminal 3.03.

Neither the case of People v. Biella, 374 Ill 87, 28 NE2d Ill, nor the case of People v. Morris, 9 Ill2d 359, 137 NE2d 840, support defendants’ position. Biella was concerned with an instruction which assumed a controverted fact to be true. Morris involved an instruction which assumed a confession to have in fact been made although the defendant denied having made it.

Defendants finally contend that certain remarks made during trial by the assistant state’s attorney were prejudicial. We disagree. A consideration of the statements referred to, although better left unsaid by the assistant state’s attorney, reveals that they were not of a prejudicial nature. Furthermore, each of the statements was objected to by the defense, the objections were sustained and the remarks were ordered stricken from the record and the jury admonished not to consider them.

For these reasons the judgments are affirmed.

Judgments affirmed.

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


author: GOLDENHERSH, P. J.

text:
    Maurine Crockett, Plaintiff-Appellant, v. Dorothy Ann Baker, Administrator de bonis non, With the Will Annexed, of the Estate of Wilfred Kenney Rose, Dorothy Ann Baker, Administrator de bonis non, With the Will Annexed, of the Estate of Lucinda E. Rose, Deceased, Dorothy Baker, Executor of the Estate of Charles P. Baker, Deceased, Dorothy Baker, Individually, Thomas W. Guin, Executor of the Estate of Ivy E. Guin, Deceased, David P. Rose, et al., Defendants-Appellees.
    Gen. No. 68-42.
    Fifth District.
    February 11, 1969.

      White & White, of Sullivan, for appellant.
    Turner & Turner, Baker & Baker, and Arthur J. Steidley, of Shelbyville, White & White, and McLaughlin & Stone, of Sullivan, Samuels, Miller, Schroeder, Jackson and Sly, of Decatur, and Jack E. Horsley, of Craig & Craig, of Mattoon (Fred H. Kelly, of counsel), for appellees.
   GOLDENHERSH, P. J.

Plaintiff, Maurine Crockett, appeals from the judgment of the Circuit Court of Shelby County dismissing with prejudice, and at plaintiff’s costs, her action to construe the will of Wilfred Kenney Rose, deceased.

Plaintiff’s complaint alleges that Wilfred Kenney Rose died on November 26, 1965; his will was admitted to probate on January 12, 1966; the identity of the named defendants; the will, after making specific bequests of certain personal effects and a small sum of money, contains the following provisions:

“EIGHTH: All the rest, residue and remainder of my Personal Property, excepting my Automobile, monies and Government Securities, shall be divided into Five Shares and One Share shall go to my Sister, Clara Wilson, or her Heirs, if she is not living at the time of the settlement of my Estate, one share to my Sister, Ivy E. Guinn, or her Heirs, if she is not living at the time of the settlement of my Estate; one share to my Sister, Rosella M. Baker, or her Heirs, if she is not living at the time of the settlement of my Estate; one share to my Sister, Lucinda E. Rose; and one share shall go to David P. Rose and Paul B. Rose, the Heirs of W. W. Rose. It is my wish and desire that the above personal property shall be divided agreeably among the parties above named, if it is possible to do so, but if it is not possible to make an amicable division of said Property, then my Sisters, who are living at the time of the settlement of my said Estate, shall make the distribution among the parties above named and said distribution and division shall be made by lot.”
“NINE: I direct my said Executor to convert my Automobile, all my Real Estate and my Government Securities into cash, as my Estate for distribution and I further direct that my said Executor may sell my Automobile and Real Estate at either Private or Public Sale as she may think would bring the higher price for either or both, and for the purpose of carrying into effect this provision of my said Will, my said Executor is hereby authorized to make and Execute proper Deed or Deeds of conveyance for said Real Estate. Should there be a depression in the Sale of Real Estate at the time of the settlement of my Estate, upon the wishes of the majority of my Sisters living at the time of said settlement, the Sale of my Real Estate shall be deferred until a time agreed upon by a majority of my Sisters living at the time that said decision is made for the Real Estate Sale. I further direct that the purchaser of said Real Estate at said Sale need not look to the application of the purchase money therefore, but a conveyance from the said Lucinda E. Rose, as such Executor, shall vest in such purchaser such title as I might convey if living.”
“TENTH: After the above distributions have been fulfilled I direct that the balance of my Estate shall be divided into Eleven shares and distributed as follows: Two-Elevenths to my Sister, Clara Wilson; two-elevenths to my sister, Ivy E. Guinn; two-elevenths to my sister, Rosella M. Baker; two-elevenths to my sister, Lucinda E. Rose; one-eleventh to my Nephew, Gloyd Archie Rose; one-eleventh to my Nephew, David P. Rose and one-eleventh to my Nephew, Paul B. Rose.”
« 99

The testator’s real estate and personalty were sold pursuant to Paragraph Nine; the testator had a savings account; a dispute has arisen as to the proper distribution under the will and the defendants, Paul B. Rose, David Rose, and Thomas W. Guin, Executor of the Estate of Ivy E. Guin, have filed objections to the Final Report of the Administrator de bonis non, contending that the property should be distributed according to Paragraph Tenth of the will to the surviving persons therein named after application of the provisions of c 3, § 49, Ill Rev Stats; the testator’s intent was that his real estate be equitably converted into personal property for distribution under the terms of Paragraph Eighth, the estate should be distributed in the fractional shares set out in the complaint.

Defendants, Paul B. Rose and David P. Rose, moved to dismiss the complaint. A separate motion to dismiss was filed by defendant, Thomas W. Guin, Executor of the Estate of Ivy Guin. The court allowed the motion filed by defendants Rose. The order of dismissal states:

“That said Last Will and Testament of the said Wilfred Kenney Rose, Deceased, does not require construction and that the terms thereof are neither ambiguous, uncertain or doubtful, that no construction thereof is required, and that this Court will not therefore assume jurisdiction of said cause.”

The record does not reflect any ruling on the Guin motion.

Plaintiff contends that because the will directs the sale of the testator’s real estate an equitable conversion resulted; under the authorities an ambiguity exists, and construction of the will is required, for the reason that devises under such circumstances have been held to be devises of personalty in some cases, and of money in others; whether personalty or money, the estate is distributable under Paragraph Eighth of the will. Alternatively plaintiff argues that if no ambiguity exists in the will, the proceeds of the sale of the testator’s automobile, real estate and government securities, as “the estate for distribution,” should be distributed as personal property under Paragraph Eighth of the will.

Defendants, Marjorie Stormquist, Robert Wilson and Rose Warner, have appeared and adopted plaintiff’s brief and argument.

Defendants, Gloyd Archie Rose, David P. Rose and Paul B. Rose, have jointly filed a brief and argument; defendants, Dorothy Ann Baker, administrator de bonis non with the will annexed of the estate of the decedent, and in the same capacity with the estate of Lucinda E. Rose, and Dorothy Baker, individually and as Executor of the Estate of Charles P. Baker, deceased, appearing by other counsel, have also filed a joint brief and argument. These defendants are in agreement that the will contains no ambiguity, and the latter group of appellees has also briefed and argued the proposition that the devises in Paragraph Tenth are individual and not class gifts, and the gifts to Clara Wilson, and Rosella M. Baker, pass as intestate property to the heirs of the testator in accordance with their respective fractional interests under the Statute of Descent.

The rules governing the construction of wills are stated by the Supreme Court in Wiener v. Severson, 11 Ill2d 347, 143 NE2d 225, wherein the court said at page 349: “It is fundamental that in construing wills the intention of the testator, as determined from the entire will, is to be given effect unless contrary to law. Such intention is determined in two ways: one by ascertaining the testator’s actual meaning from the words employed, to which all rules of construction give way, and the other by finding his presumed intention by the application of rules of construction where the meaning is obscure, doubtful, or uncertain. Resort to such rules is necessary, however, only where the actual intent cannot be ascertained. If the intention may be gathered from the language of the will without reference to rules of construction, there is no occasion to use them. Stagg v. Phenix, 401 Ill 134,” and in Carr v. Hermann, 16 Ill2d 624, 158 NE2d 770, wherein the court said at page 628: “The lodestar of will construction is to ascertain and effectuate the intention of the testator, provided such is not contrary to law, by comparing the various will provisions with one another and, where possible, by adopting a construction which gives effect to all the language used. (Citing cases.) No part will be rejected as meaningless or surplusage if such can be avoided. (Citing cases.)”

In our opinion Paragraph Eighth clearly, and without ambiguity, provides for the distribution of the testator’s personal property except for the specific bequests, his automobile, money and government securities. Paragraph Tenth, with equal clarity provides for the distribution of the money obtained from the sale of his real estate, automobile, and government securities in accordance with Paragraph Nine, and any money he might have. To adopt plaintiff’s construction of the will would render Paragraph Tenth meaningless. The trial court correctly held the will did not require construction.

The record shows that subsequent to the entry of the order of dismissal, plaintiff filed a motion to vacate the order and for leave to file an amended complaint. Several defendants filed a motion to vacate the order of dismissal and for leave to file a cross complaint. The court denied plaintiff’s motion, and the record does not reflect any ruling by the court on the defendants’ motion.

Plaintiff argues that notice of a hearing on her motion to vacate was not given all parties of record, and the court erred in acting on it without giving all parties an opportunity to be heard. The only parties who allegedly failed to receive notice of the hearing on the motion make no complaint here, and in the absence of a cross-appeal apparently acquiesce in the result of the court’s action. Under the circumstances, plaintiff was not in any manner prejudiced by the alleged failure to give notice. We have examined the amended complaint which plaintiff proposed to file and find nothing alleged therein which requires a construction of the will.

We do not reach or decide any issue based upon the provisions of c 3, § 49, Ill Rev Stats. No final report is in evidence, in this state of the record we cannot ascertain the pertinent facts, and we do not anticipate the circuit court’s rulings on such objections as may be made thereto.

For the reasons set forth herein the judgment of the Circuit Court of Shelby County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: TRAPP, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard W. Mitchell, Defendant-Appellant.
    Gen. No. 10,910.
    Fourth District.
    February 13, 1969.
    John J. Casey, Public Defender, of Springfield, for appellant.
    Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield (Charles H. Delano, Assistant State’s Attorney, of counsel), for appellee.
   TRAPP, P. J.

A jury returned a verdict of guilty upon a charge of armed robbery, and defendant appeals the judgment of conviction.

It is urged that the trial court erred in failing to require the State’s Attorney to produce statements allegedly taken by police officers from certain witnesses and in permitting a sheriff’s investigator to testify to misleading matter.

The first issue is reviewed in the light of the rule in People v. Durso, 40 Ill2d 242, 239 NE2d 842, and People v. Golson, 37 Ill2d 419, 226 NE2d 610, which holds that statements written down in the words of the witness, or substantially in verbatim language of such witness, must on motion by defendant be produced for purposes of impeachment of the witness. These authorities agree that the defendant must establish the fact that such transcript of the witness’ statement in fact exists as a preliminary foundation.

The victim of the robbery, Mrs. Bryant, testified that on the evening of the event and subsequent to the robbery she went to the sheriff’s office and reported the circumstances. Asked whether her statements and description were written down, she replied, “. . . I am not sure, but I think so.” Defendant then made demand for such report by the witness. The State’s Attorney advised that there was no such item in his file.

Upon cross-examination, Mrs. Bryant testified that she did not know the name of the sheriff’s officer to whom she made the report. She testified it was not either of two officers whose names were suggested to her. The record does not show whether a form of duty or assignment record in the sheriff’s office would establish the identity of the officer to whom the report was made.

Beard and Burton testified for the prosecution. Each identified himself as accompanying the defendant in the foray, and in sharing the spoils, and described the robbery in substantially the same detail as did Mrs. Bryant. The State’s Attorney provided the statements of each, dated January 7, 1966, typewritten and signed, to defendant’s counsel as soon as the first, Beard, had testified in chief. These statements were taken by two officers of the City of Springfield in another county where Beard and Burton were incarcerated incident to the investigation of other matters. Neither officer testified at the trial. On cross-examination Beard testified that his statement was made and signed on January 7,1966. Burton was not asked concerning the details of making his statement. Neither witness was asked by defendant concerning any other statements made by the witnesses to the police officers. We find no motion or request by defendant at the trial for any statements or notes of the police officers concerning the interview with these witnesses other than those supplied.

Incident to a motion for a new trial, defendant procured the testimony of the city police officers who obtained the statements of Beard and Burton. In substance, they testified that they interviewed the witnesses on January 5, 1966, but made only mental notes, and that written statements were taken on January 7th. They also testified that they had no notes or memorandum of any interview with Mrs. Bryant. The record suggests that the police file was produced and examined, and that no such memoranda were found.

In response to the motion for a new trial, the State’s Attorney filed an affidavit that all statements, reports and memoranda prepared by investigative officers and known to him, or to his office, had been supplied to defendant during the trial.

Upon this record, we conclude that the defendant has failed to establish as preliminary foundation the existence of any statements, investigative notes or memoranda which the State failed to produce for purposes of impeaching the witnesses.

Defendant relies upon the opinion in People v. Jolliff, 31 Ill2d 462, 202 NE2d 506. As was pointed out in the Golson opinion, in Jolliff as well as in People v. Cole, 30 Ill 375, 196 NE2d 691, the existence of the statements or memoranda was not disputed. Here, as in Golson and as in People v. Lanier, 98 Ill App2d 89, 240 NE2d 288 (1st Dist 1968), the State’s Attorney denied the existence of the document.

Defendant urges that the court erred in admitting into evidence the testimony of a sheriff’s investigator who identified a subpoena issued for one Schumate to testify as a witness for the prosecution, and testimony that the sheriff’s office had been unable to procure service of the subpoena upon such witness in Sangamon County.

At the trial, the novel objection was made, “If he wants a bench warrant, let him issue a bench warrant. He just wants to explain why his witness isn’t around.” Here, the more recognizable argument is made that immaterial and irrelevant testimony gave a false impression to the jury, i. e., that the jury would believe that the witness, if present, would corroborate the witnesses for the prosecution.

Schumate, with a Springfield address, was named in a list of witnesses who might be called by the State. Defendant’s motion for a list of witnesses was filed November 16, 1966, and the list was filed November 22, 1966. The testimony of defendant’s “accomplices” is that on the afternoon preceding the robbery they went to the home of Schumate at the address stated on the witness list and borrowed the gun that was used by the defendant in the robbery.

At the motion for a new trial, defendant’s counsel subpoenaed one Pickett, the sheriff’s chief investigator, and certain files which showed that on November 1, 1966, the Sheriff’s office of Sangamon County received a warrant for service issued in Cook County for the arrest of Schumate. Such warrant indicated a Chicago address for the man. From this circumstance, defendant argues that the prosecution did not really intend to have Schumate appear and testify, and contends that Pickett should have issued the subpoena for service in Cook County. There is no evidence which suggests that the sheriff’s deputy procures the issuance of subpoenas for the State’s Attorney, and the fact that a Cook County warrant was sent to Sangamon County for service on Schumate shortly prior to the date the list of witnesses was furnished defendant, leads to the conclusion that Chicago was not the most likely place to find the witness.

These facts do not bring this case, as is argued by the defendant, within the rule of Miller v. Pate, 386 US 1, 17 L Ed2d 690, and Napue v. Illinois, 360 US 264, 3 L Ed2d 1217, wherein the prosecution permitted false testimony before the jury to go uncorrected.

There is no issue of the credibility of a witness who testified before the jury as in Napue. The testimony at issue is not vital to the case for the prosecution, nor do we find a deliberate misrepresentation to the jury as was found in Miller v. Pate.

It appearing that there is no substantial error capable of resulting in a miscarriage of justice, the judgment is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Anita J. Heuer and William Heuer, Plaintiffs-Appellants, v. Manuel E. Goldberg, d/b/a M. Goldberg Cartage, and Stanley J. Ziober, Defendants-Appellees.
    Gen. No. 51,626.
    First District, Third Division.
    February 13, 1969.

      Brunon J. Komosa and Joseph J. Jares, Jr., of Chicago, for appellants.
    Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (John L. Kirkland and Donald J. O’Meara, of counsel), for appellees.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Plaintiffs appeal from a judgment rendered against them in a personal injury and property damage ease.

Plaintiffs contend that the verdict was against the weight of the evidence and it was the duty of the trial court to grant a motion for a new trial; that because of improper conduct of counsel, a new trial should have been granted; and that the verdict of the jury was contrary to the manifest weight of the evidence.

Anita J. Heuer was driving her husband’s automobile west on Madison Street. Madison Street is 58 feet, 3 inches wide east of Pulaski Road and 80 feet, 10 inches wide west of Pulaski Road. Pulaski Road is 52 feet wide. Madison Street has three east and three westbound lanes for traffic east of Pulaski Road. There is a center line separating the east and west lines of traffic. The accident occurred shortly after 8:00 a. m. on November 1, 1957. Mrs. Heuer was proceeding in the inner lane closest to the center line for several blocks and first observed the defendant’s vehicle when it was about one-half a block ahead of her. She was then approximately one-half of a block east of Pulaski Road. The defendant’s vehicle was a tractor-trailer combination which was 40 feet long. It carried a load of steel including two I beams, which extended approximately 10 feet beyond the rear of the trailer. The overall length of the tractor-trailer and protruding steel beams was approximately 50 feet. Three red flags were attached to the protruding steel beams. The flags were either 12 inches by 12 inches or 24 inches by 24 inches. The tractor was equipped with two side-view mirrors and turn signals. When Mrs. Heuer was approximately one-half block east of Pulaski Road she saw the truck which was near the corner of Pulaski Road. She testified the traffic light for westbound traffic was red when she first saw it and shortly after that, it turned green. The tractor-trailer was in the middle westbound lane of Madison Street. That would be the lane immediately to her right. She was traveling at a speed of approximately fifteen to twenty miles per hour and there was no vehicle immediately ahead of her in her lane. She saw no signals operating on the truck and she did not recall seeing red flags or markers attached to the steel. According to her testimony the impact occurred when she was east of Pulaski and the automobile which she was driving was somewhere near the back end of the load which was protruding, with most of the truck to her right and ahead of her. She suddenly heard a loud “bang” and felt a rush of air and had a sensation of being thrown through the air. That was all she could remember of the impact. She did not see any hand signal being given by the operator of the truck prior to the impact. She testified that just before the rush of air, the front of the truck was about halfway across Pulaski Road and that at no time did she have any indication or notice of the truck’s turning before the impact.

The defendant Stanley J. Ziober testified that he was the driver of the tractor-trailer unit and that he had inspected his tractor-trailer on the morning of the accident and that everything was satisfactory. He was traveling westbound on Madison Street in the middle lane next to parked cars at the curb. As he approached the intersection of Pulaski Road the lights were red. There was a traffic lane to his left and to his right. There were cars parked in the right lane commencing about 15 feet east of the curbline of Pulaski Road. He stopped for the red light and put on his red signal flasher. He remained stopped for approximately one minute until the light turned green. He started to make a right turn and a policeman guided him around the corner. His maximum speed while making the turn was about five miles an hour. He intended to proceed north on Pulaski. While making the turn, the collision occurred. The rear of the steel beams which he was carrying were involved in the collision. At the moment of impact the tractor was facing north on Pulaski and the trailer was facing northwest at a forty-five degree angle. He had sideview mirrors on both sides of the cab through which he could see traffic behind and to the side of his vehicle. However, he testified that he never saw plaintiffs’ vehicle before the collision. He did see the steel beams protruding before he made the turn by looking into his left sideview mirror. After the collision he checked the position of the I beams and observed that the top beam had moved two to two and a half feet to the right. He had moved approximately fifteen feet before the collision. His right turn signal was on while he was stopped waiting for the light to change. After the impact he saw plaintiffs’ vehicle in the lane next to the center line on Madison Street. The steel beams on the trailer were protruding into that lane.

A police officer of the City of Chicago was called as a witness for the plaintiffs. He testified that he had been stationed at the intersection of Pulaski and Madison Street for the past ten years and that he was at the intersection on the morning of November 1, 1957. He recalled being present at the time of the accident involving a tractor-trailer truck and a passenger automobile although he said he did not see the actual occurrence.

He stated that he did not see the passenger automobile involved in the accident until after the impact and that it was straddling the second and third lanes close to the center of the street and facing west. He further testified that he had on numerous occasions directed tractor-trailer units making a north turn from Madison Street onto Pulaski Road but that he did not recall having directed the tractor-trailer involved in this accident as it turned.

The question presented to us is whether or not the trial judge employed the proper standard or rule of law in deciding the motion for new trial. At the conclusion of that hearing the court said:

“. . . and I suppose that it’s (verdict) not against the manifest weight of the evidence. On that basis I am going to deny the motion for a new trial, although I will state again I disagree with the verdict and I don’t approve of it, and I would have decided differently, but I suppose my duty is to follow the case law and ignore what I would have done.”

In Read v. Cummings, 324 Ill App 607, 609-610, 59 NE2d 325, the court said:

“It is then the duty of the trial judge to consider the weight of the evidence and if he is of opinion that plaintiff has not proven his case by a preponderance of the evidence, taking into consideration the fact that the jury has found otherwise, it is his duty to set aside the verdict and grant a new trial. And if the court does not do so but overrules the motion and enters judgment and the case is then brought to this court, we are not authorized to disturb the verdict on this ground unless the verdict and judgment are against the manifest weight of the evidence. This court in passing on the question must take into consideration not only the verdict of the jury but the fact that the trial judge saw and heard the witnesses, overruled the motion for a new trial and entered judgment. It requires much more for this court to set aside a verdict and judgment than is required of the trial judge. It is his duty to set aside the verdict if he is of the opinion that the plaintiff has not sustained his case by a preponderance of the evidence, while the question of the preponderance of the evidence does not arise at all in this court. (Citing cases.) We are not authorized to disturb the verdict and judgment unless we are of opinion that it is against the manifest weight of the evidence.”

In Morelia v. Melrose Park Cab Co., 65 Ill App 2d 175, 212 NE2d 106, the court held that it requires much more for the reviewing court to set aside a verdict and judgment than is required of the trial judge. It is the duty of the trial judge to set aside the verdict if he is of the opinion that the plaintiff has not sustained his case by a preponderance of the evidence. The question of the preponderance of the evidence does not arise in a case such as this in the reviewing court. The trial judge therefore in passing upon the motion for a new trial is afforded greater latitude than is the reviewing court. In Payne v. Kingsley, 59 Ill App2d 245, 207 NE2d 177, the court held that the trial court in considering a motion for a new trial may weigh the evidence for the purpose of determining whether the verdict is contrary to the weight of the evidence and if the court so finds, a new trial should be granted. See also Tihay v. Aurora City Lines, 79 Ill App2d 107, 223 NE2d 171.

The standard or rule of law to be applied in the trial court is whether the verdict is against the weight of the evidence or, as has been said many times, against the preponderance of the evidence. Once the trial judge has passed upon a motion for a new trial and has properly employed that standard, a reviewing court may then reverse only when the verdict is found to be contrary to the manifest weight of the evidence. The trial court in passing on the motion for a new trial in this case, having failed to consider the weight of the evidence or the question of the preponderance of the evidence, the cause must be remanded.

We have thoroughly examined the other alleged trial errors set forth in plaintiffs’ brief and find no reversible error among them.

The plaintiffs also contend that the verdict of the jury was contrary to the manifest weight of the evidence. A reviewing court will not pass upon that point in a case unless and until the trial court determines whether or not the verdict is against the preponderance of the evidence. The trial court, in passing on the motion for new trial having failed to consider the weight of the evidence or preponderance of the evidence, the judgment cannot stand and since this court may not pass upon that question in this case, the judgment entered herein is reversed and the cause remanded to that court with directions to pass on this question.

Reversed and remanded with directions.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lewis Ray Tucker, Defendant-Appellant.
    Gen. No. 52,394.
    First District, Fourth Division.
    February 14, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward Stasukaitis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

OFFENSE CHARGED: Murder.

JUDGMENT: After waiving his right to a jury trial the defendant was convicted of the lesser included offense of involuntary manslaughter and sentenced to serve a term of not less than nine nor more than ten years in the State penitentiary.

CONTENTIONS ON APPEAL:

1) The defendant was not proved guilty beyond reasonable doubt;
2) The trial court erred in admitting into evidence Exhibit No. 1, the Post Mortem Examination Keport of the Coroner (Protocol).

EVIDENCE. Testimony of State’s Witnesses.

The State called as its first witness Bonnie Byres, the mother of the deceased. She testified that she had known the defendant for approximately two years, and that she and her two children—Carrie, age two, and Steven (the deceased), age three and one-half—had been living with the defendant since June of 1966. She testified that on November 28, 1966, the defendant had spanked her son; that she had not seen the act, but had heard the child cry out. She stated that the defendant had spanked the child on other occasions but had never hurt him and generally treated him well. She testified that the last time she saw her son alive was at about 5:30 p. m. on the 28th of November; that his face was bruised, particularly one eye, and his forehead. She contradicted this statement in her later testimony in that she subsequently testified that upon examining her son at the morgue on November 29, she found that his eye and forehead were bruised, but that she didn’t believe those marks were there when she left home. However, on cross-examination she clarified her position and stated:

“When I last saw Steven about 5:30 p. m., November 28th, he had a bruise on his forehead, and I believe his eye was a little bruised. I don’t know, it just didn’t appear to me, after I had seen him, that it was that bad. But I suppose maybe it was.”

She did not testify that she saw any of the bruises on the rest of the child’s body.

On cross-examination by the attorney for defendant, Miss Byres testified that on November 25, 1966, her son Steven had been playing under a bed which she described as “quite heavy,” and in tampering with it caused it to collapse on his stomach. However, at no time during her direct testimony did she mention the incident. She stated that after the falling of the bed she observed that the deceased “didn’t care too much for food” and ate very little. When questioned specifically by the court she stated that in the interim between the incident and her son’s death all that he would eat was half a piece of toast, some beans and some water. She also noticed that he was unable to walk properly and started limping; that in fact, that evening when they were moving into a new apartment she had to carry the child as he was unable to keep up. It is worthy of note that at no time immediately after the child’s death did either the witness or the defendant mention to the police or anyone else the incident of the falling bed, despite the fact that they were both questioned by the police as to the physical condition of the deceased. In fact, Miss Byres testified that it was not until she was actually on her way to the Grand Jury that she first mentioned the incident to Officer Kelly.

James C. Kelly, a police officer assigned to the Homicide Division of the Chicago Police Department, was instructed to conduct an investigation to ascertain the exact cause of death of the deceased, whom he observed in the Emergency Room of the American Hospital at 8:45 a. m., on November 29, 1966, approximately 15 minutes after he had been pronounced dead. He testified that he noticed numerous bruises covering approximately 80 percent of the deceased’s body; in all, he counted 78 bruises of varying sizes and coloration. During cross-examination he described the condition of the body as follows:

The right eye had slight discoloration around the front and the bruise was approximately an inch in diameter. This bruise was above the right eye on the eyelid. There was a slight laceration. The coloration of the bruises over the eye was a brownish red. There was a discoloration of what appeared to be a bruise around the left eye also. There was no laceration there. The bruise was approximately the same size—about an inch in diameter. Both of these bruises were above and on the outside of the eye towards the temple area. I believe there was a slight bruise on the bridge of the nose also. I can’t recall whether there was any laceration there. The bruise on the nose was very small, approximately, I’d say at most, a quarter inch.
I stood over the body and counted the bruises for approximately ten minutes. There were four or five bruises in the abdominal region. There were two that appeared to be right in the center of the more pronounced bruises. There were other bruises off on the side. But there were no lacerations. The major bruise would possibly be about two inches. The major bruise was the darkest in color. There were two major bruises but the more predominant one appeared to be about two inches in diameter. The other major bruise was slightly smaller, possibly an inch, an inch and a half. The other bruises, I’d say, were about the size of a quarter. The major bruises were off to the right side. There were numerous bruises on the legs and thighs. They were all approximately of the—the coin variety. You would say, dimes to quarters to pennies. They were all in that category. Some were dark, others were very dark—various shades of bruises.
Q. Pardon me. I don’t think I asked you before. What was the coloration of the bruises on the abdomen?
A. They were very light; of a reddish nature; light brownish red.
Q. Was there any blue ?
A. No blue.
Mr. Weber: Well, what color was predominant?
Mr. Garlovsky: Objection.
The Court: I’ll let him answer.
The Witness: Brownish.
Mr. Weber: Q. I’m asking you now if you recall any bruises to the legs, the lower part of the anatomy, from the kneecap down to the ankle or foot and from the kneecap up on the front side of his anatomy?
A. There was numerous bruises, and it encompassed approximately eighty percent of his body, these bruises.
Q. Eighty percent of his body ?
A. I would say, from the back to the front; and on his lower extremity, he had bruises, small bruises.
Q. Did he have any bruises on his back ?
A. Yes, there was bruises on his back, small bruises.
Q. Whereabouts on the back?
A. Spread throughout his shoulder area.

The witness further testified that at about 10:00 a. m. he had conversations with both Miss Byres and the defendant concerning the death of the deceased. He stated that Miss Byres did not mention the incident concerning the collapse of the bed at that time, nor—contrary to her testimony—when he accompanied her to the Grand Jury. When he questioned the defendant about the bruised condition of the deceased he, too, did not mention the incident, but commented simply that he could not account for the bruises; that all he had done was to “spank the boy with his hand when the boy did not eat, and that was the extent.”

Officer John Hennessey testified that at 8:00 a. m., on November 29, 1966, he received a call to assist a sick child. Arriving at the scene, he was met by the defendant carrying the deceased wrapped in a blanket. He told the defendant to get into the back of the squadrol with the child and proceeded immediately to the American Hospital; the child was pronounced dead upon their arrival.

Dr. Jerry Kearns, a licensed physician and surgeon, who had been employed as a Coroner’s pathologist for 24 years, testified that he had examined People’s Exhibit 1, the Coroner’s Protocol of the postmortem examination of the deceased, which was stipulated to by the defense and received in evidence. He stated that he had not personally examined the deceased, but that according to the protocol the deceased had “multiple contusions, a total of fourteen in the skin, on the forehead on the right side, the upper lip on the right side, the face, on the left side, the chin, in the midline and over the jaw at the left of the midline. There were contusions in the skin of the neck above the clavical or collar bone. The right shoulder and right arm, the left arm and the left hand; the abdomen in the area that the appendix is ordinarily found, in the lower quadrant on the right side, both thighs and both legs. A total of fourteen different contusions all in the front, not in the back. In the abdomen was found 1280 cc of blood; this amounts to little over a quart. In my opinion, the cause of death of Steven Bollinger was a traumatic intra-abdominal hemorrhage, the result of a tear in the blood vessel which drains all the blood from the small and large vein, the mesenteric vein. The mesenteric vein drains blood from all of the small bowel, large bowel up to about the midline at the right side of the body. This is a major blood vessel. It is my opinion that this hemorrhage was caused by external violence applied to the abdomen. A human blow could have caused the rupture of this vein. As a human blow is not different from a blow from any source.”

Dr. Kearns was of the opinion that the deceased died from an “explosive” hemorrhage in that the mesenteric vein was ruptured and all the bleeding occurred within a relatively short period rather than a few cc’s at a time. He based his opinion upon the amount of free blood which was found in the abdominal cavity as opposed to blood of varying consistency and color, and on the basis of the description of the contusions suffered by the deceased contained in the Coroner’s report. When questioned specifically as to whether in his opinion a bed falling on the deceased on November 25 could have been the cause of death, Dr. Kearns replied, “I don’t think so, I really don’t think so. The interval; the interval from the 25th to the 29th is too long. It would take only an hour or hour and a half to die from this sort of injury, bleeding in the abdominal cavity. And four days, that’s too long.”

Testimony of Defense Witnesses.

Bonnie Byres was also called as a defense witness, but aside from her statement that at the time of his death her son’s eyes were swollen and discolored due to a sinus infection, her testimony is substantially in accord with her previous testimony as a State’s witness, which has already been described and need not be repeated.

Lewis Ray Tucker, the defendant, testified that on the evening of November 25, 1966, he noticed that the deceased was acting strangely in that he walked slowly, and that he “didn’t seem to be moving around with no get up about him,” and wasn’t eating properly. He described the condition as remaining substantially unchanged for the next few days. At about 5:00 p. m., on November 28, Bonnie told him that Steven wouldn’t eat and asked him to try and see if he could do something about it. The defendant said, “Steven, if you don’t eat that, I’m going to whip you.” The defendant stated that he then proceeded to strike the boy approximately four or five times on the buttocks with only the palm of his hand. He did state, however, that in the past he had used a paddle when spanking the boy. He testified that it was not until 4:00 a. m. the next day that he was awakened by the boy’s crying; he went into the bedroom and found him bleeding from his mouth; when he checked him half an hour later he found the boy had vomited and was “making gagging like noises” and he thought the boy had passed out. When he was unable to revive him the police were called and the child was taken to the hospital.

Dr. Lawrence Mann, a licensed physician, testified from the protocol that in his opinion, considering the type of massive abdominal hemorrhage which was sustained by the deceased, he might very well have died within four days after sustaining the injury. He concluded that a massive hemorrhage does not necessarily indicate a recent death, but rather depends upon whether all the blood was present in the abdominal cavity at one time or over a longer period of time. He noted that the Coroner’s report showed the existence of some partially clotted blood in that area which would indicate that the bleeding had occurred over a period of time.

OPINION.

We will first consider the contention of the defendant in this appeal that he was not proved guilty beyond a reasonable doubt.

The defendant testified that he was “an able bodied seaman”; that on November 28 he struck the child four or five times on the buttocks with the palm of his hands; that after Miss Byres left he put the children to bed; that about 4:00 a. m., on November 29, he heard the deceased making crying sounds; that he went into the bedroom and found the child lying on the floor, bleeding from his mouth, and that he put him back into bed. Half an hour later he found that the boy had vomited and he sent him to the bathroom. He sent him there a second time when he again appeared ill, and he testified as follows:

“So I said, ‘Steven, if you are still sick go in the bathroom.’ So he went back in. Then I went in behind him and he was standing there trying to vomit. He was standing over the commode and holding both sides of the commode with his hand. Then all at once his legs just seemed to start going out from under him.”

The defendant tried to give him some water, but he refused it, and “choking” noises continued to come from his throat. The defendant said, “So he still didn’t seem to be coming out of it, so then I thought there’s something wrong with him.” After that the defendant asked the landlady to call the police and the child was taken to the hospital. It is worthy of note that the defendant made no effort to hold up this three-year old child who was clutching the commode and vomiting.

The entire conduct of the defendant during this time was fully presented to the trier of the fact for his consideration. The credibility of the defendant was a matter to be determined by the trier of the fact who had a right to consider his evidence with regard to the care the defendant took of the deceased when he was ill, as well as his statement that after all this had been going on for a considerable period of time he came to the conclusion that something was wrong with the child.

A case bearing considerable similarity to the one before us is People v. Winstead, 90 Ill App2d 167, 234 NE2d 175, in which the defendant was convicted by a jury of the involuntary manslaughter of his 3-year-old stepdaughter. There the defendant argued in part, that the crime was not proved beyond a reasonable doubt. There was evidence that the child died of severe brain damage; that she had four distinct injuries in the scalp area alone, and numerous injuries to all parts of her body. A neighbor testified that she heard a banging in the apartment and heard the protest made by defendant’s wife telling him “not to throw her about”; that she heard crying and banging against the floor and the wall. At the hospital the police questioned the defendant and his wife as to how the child had received the bruises. They said the child fell out of bed, and at the trial they testified that the lump on the child’s forehead was sustained when she ran into a radiator. The interrogating officer testified that defendant never mentioned the radiator to him. Defendant then admitted beating the child with a belt.

In Winstead the defendant contended that his guilt was not proved beyond a reasonable doubt because the conviction was based upon circumstantial evidence which could be explained upon a reasonable hypothesis consistent with innocence. The court cited and quoted from People v. Huff, 29 Ill2d 315, 194 NE2d 230, where the court said at page 320:

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

The court in Winstead affirmed the judgment and sentence of the trial court, saying at page 176:

“The circumstantial evidence in this record justified the jury in believing that Linda was mortally injured by defendant and its verdict so grounded must be sustained. See People v. Sapp, 282 Ill 51, 118 NE 416.”

In the instant case the evidence would entitle the trier of the fact to believe that there was a constant and long series of abuse and ill treatment of the child which resulted in his death. Under those circumstances the defendant was properly convicted of involuntary manslaughter.

The defendant also contends that the court erred in permitting the protocol made out by Dr. Henry to be admitted in evidence and in permitting Dr. Kearns to testify from that record. He argues that medical records containing the conclusions of doctors and nurses cannot be admitted into evidence as a record made in the ordinary course of business, citing Wright v. Upson, 303 Ill 120, 144, 135 NE 209; Howard v. Illinois Trust & Savings Bank, 189 Ill 568, 574, 59 NE 1106. The State admitted that Dr. Kearns had not made an examination of the deceased, but that his testimony was based upon Dr. Henry’s report. Defendant cites Supreme Court Rule 236 (Ill Rev Stats 1967, c 110A, § 236), which provides:

(a) Any writing or record, . . . shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, . . .
(b) This rule does not apply to the introduction into evidence of medical records. . . .

However, in the case at bar, the State and the defendant stipulated to the pathologist’s report. In the record it appears that the State’s Attorney stated: “At this time, before I call Doctor Kearns, I would ask Counsel if he would stipulate to the protocol of Doctor Henry.” After further discussion counsel for defendant said, “All right. I’ll so stipulate.” The stipulation as to the pathologist’s report admitted its truthfulness, and there was no need for further evidence as to the correctness of the entries made. (See Wigmore on Evidence, 3rd Edition, § 2588, page 586.) Also, the defendant called as his witness Dr. Mann, and presented to him the protocol. The doctor’s testimony was based, as he stated, upon his examination of the Coroner’s report. The court committed no error in permitting the protocol to be introduced, nor in permitting Dr. Kearns to testify in reliance upon it.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, P. J. and ENGLISH, J., concur.

       Ill Rev Stats 1965, c 38, § 9-3. Involuntary Manslaughter and Reckless Homicide.] (a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.