author: MR. JUSTICE BURKE

text:
    Mary Lapetina, Plaintiff-Appellant, v. Standard Rug and Furniture Cleaners, a Corporation, and Carmen J. Tortorello, Defendants-Appellees.
    Gen. No. 52,842.
    First District, Second Division.
    December 30, 1969.
    Rehearing denied and opinion modified February 2, 1970.
    Hugo R. Scala, of Chicago (Dom J. Rizzi and Frank M. Greenfield, of counsel), for appellant.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Leonel I. Hatch, Jr. and D. Kendall Griffith, of counsel), for appellees.
   MR. JUSTICE BURKE

This was an action to recover damages for injuries allegedly suffered by plaintiff, Mary Lapetina, when the automobile which she was operating was struck from the rear by an automobile operated by defendant, Carmen J. Tortorello, and owned by defendant, Standard Rug and Furniture Cleaners. Judgment was entered on the jury’s verdict in favor of both defendants and against the plaintiff, from which this appeal is taken. Subsequent to the filing of this appeal, this court allowed a motion by plaintiff dismissing defendant, Standard Rug and Furniture Cleaners, out of the case; Carmen J. Tortorello shall hereinafter be referred to as “defendant.”

The mishap occurred at the intersection of Division Street and Ridgeland Avenue in Oak Park, Illinois. Division Street runs in an east and west direction and consists of two lanes of moving traffic and two lanes for parking. Ridgeland Avenue intersects Division Street and runs in a direct north and south direction to the north of Division and in a northeast and southwest direction to the south of Division. An automobile traveling south along Ridgeland, to the north of Division, must make a slight jog to the west at Division in order to proceed southwesterly along Ridgeland after crossing Division.

Plaintiff testified that just prior to the mishap, she was driving her automobile in the southwestbound lane on Division Street approaching the Ridgeland Avenue intersection. Snow embankments lined both curblines of Division and the pavement was wet. On the northeast corner of the intersection is a traffic control light, which is situated ten to twelve feet east of the east curbline of Ridgeland and which is one of the signals controlling westbound Division traffic. When approximately 75 feet from the intersection, plaintiff testified that she observed the traffic light in question turning from yellow to red. She brought her vehicle to a complete stop at a point on a direct line with the traffic light and switched on her left hand directional signal in anticipation of executing a left turn onto southwestbound Ridgeland. Her automobile remained in this position approximately thirty seconds, after which plaintiff felt an impact from the rear and her automobile jolted forward one or two feet.

Defendant testified that he was also proceeding westerly along Division Street in the Standard Rug automobile when he observed the brake lights on plaintiff’s automobile flash red as it moved past the traffic light on the northeast corner of the intersection. Defendant stated that the traffic light was then green. He further testified that at the time he noticed the brake lights on plaintiff’s automobile flash red, his automobile was fifteen to twenty feet behind the plaintiff’s vehicle and “may have been” traveling at a speed of twenty miles per hour, defendant adding that he was not certain of the speed at the time. Defendant testified that he braked his automobile in an attempt to avoid a collision with plaintiff’s vehicle, but was unsuccessful. He further testified that plaintiff’s automobile was approximately one car length beyond the traffic light in question and was stopped for an undetermined length of time prior to the impact. Defendant also testified that there was snow along both curblines of Division Street and that portions of the moving lanes of traffic were wet and slippery.

Police Officer Alvin Witte testified that he was assigned to investigate the accident in question. He stated that he had no independent recollection of his investigation thereof and that it was necessary to refer to his report made at that time. The report showed that the front of the plaintiff’s automobile was on a line even with the east curb of Ridgeland Avenue.

Plaintiff contends, inter alla, that the verdict of the jury is against the manifest weight of the evidence. We agree.

Under either version of the occurrence, it is clear that defendant was operating his vehicle too closely behind the plaintiff’s automobile, under the existing conditions. Plaintiff testified that her automobile was brought to a complete stop on a line with the traffic light; that the vehicle remained in that position for some thirty seconds with its left turn directional signal flashing; and that the vehicle was struck from the rear by defendant’s automobile, jolting the former vehicle forward one or two feet. Plaintiff further testified that the pavement was wet on the day in question.

Defendant, on the dther hand, testified that plaintiff’s automobile was moving slowly into the intersection, with a green traffic light; that his vehicle was fifteen to twenty feet to the rear of plaintiff’s automobile and “may have been” traveling twenty miles per hour; that he noticed the brake lights of plaintiff’s vehicle flash red as it entered the intersection; and that the collision occurred when plaintiff’s automobile was one full car length past the traffic light on the northeast corner of the intersection. Defendant also admitted that portions of the pavement along Division Street were wet and that his automobile skidded into plaintiff’s vehicle after he applied the brakes.

Under these circumstances, the verdict of the jury is clearly against the manifest weight of the evidence. Hickey v. Chicago Transit Authority, 52 Ill App2d 132, 136, 201 NE2d 742; Lowe v. Gray, 39 Ill App2d 345, 351, 188 NE2d 890. The judgment is reversed and the cause is remanded for further proceedings.

Judgment reversed and cause remanded.

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


source: Caselaw Access Project

author: STOUDER, P. J.

license: Public Domain

text:
    Velma Rogers, Plaintiff-Appellee, v. Jean Hollandsworth, Defendant-Appellant, v. Mary Wages, Defendant-Cross-Appellant.
    Gen. No. 69-44.
    Third District.
    January 27, 1970.

      R. Jack Ott, Knoblock & Ott, of Peoria, for Jean HoIIandsworth.
    Walter J. Sebo, of Canton, for Velma Rogers.
    Robert Jackson, Westervelt, Johnson, Nicoll & Keller, of Peoria, for Mary Wages.
   STOUDER, P. J.

Velma Rogers, Plaintiff-Appellee and Cross-Appellant, commenced this action in the Circuit Court of Fulton County seeking damages for personal injury. In the first count of a two-count complaint, plaintiff Rogers charged Jean HoIIandsworth, Defendant-Appellant, with wilful and wanton misconduct, the defendant being the driver of an automobile in which plaintiff was a passenger. In the second count, plaintiff Rogers charged Mary Wages, Defendant cross-appellee, with negligence, the defendant being the operator of the other automobile involved in the incident. Both counts were tried at the same time before a jury. On the wilful and wanton count against defendant HoIIandsworth, the jury returned a verdict in favor of plaintiff in the amount of $10,000. On the negligence count against defendant Wages, the jury returned a verdict of not guilty. Judgments were entered on the verdicts and post-trial motions were denied. Defendant Hollandsworth has appealed from the adverse judgment on the wilful and wanton count and plaintiff Rogers has cross-appealed from the adverse judgment on the negligence count.

Plaintiff Rogers, a resident of Fulton County, lived on the east side of a gravel road which goes in a generally north-south direction and which is known as the Old Duck Island Road. On November 7, 1965, plaintiff, together with her daughters, defendant Hollandsworth and Susan Ford, got into defendant Hollandsworth’s automobile intending to go to a neighboring town to get Sunday papers. All three ladies sat in the front seat, defendant Hollandsworth being the driver, plaintiff Rogers sitting in the middle and Susan Ford sitting on the right side of the front seat. Hollandsworth backed her automobile out of the driveway which went generally in an east-west direction toward the gravel road. She backed the automobile onto the gravel road in such a way that it was headed in a generally southerly direction, the direction she intended to go. After she had proceeded in a southerly direction about five feet from the intersection of the driveway and gravel road, a collision took place between the Hollandsworth automobile and one operated by Mary Wages, a second defendant, the Wages’ automobile being operated in a generally northerly direction on the gravel road. The force of the collision which was more or less head-on, welded the cars together, forced the Hollandsworth car backwards, and both cars came to rest together in a ditch on the west side of the gravel road some fifty-one feet north of the intersection of the driveway and road.

From the point where the driveway intersects the gravel road, the road rises quite sharply to the south, the crest of the hill being one hundred fifty-two feet south of the driveway. The hill is such that the driver of an automobile proceeding in a southerly direction at the intersection of the driveway could not see beyond the crest of the hill to the south, or a distance of a hundred fifty-two feet. Likewise, the driver of an automobile proceeding in a northerly direction would first be able to see the driveway intersection only after reaching the crest of the hill.

Since the incident involved the collision of automobiles proceeding in opposite directions, the central issues, as might be anticipated, involve the location and the manner of operation of the automobiles at and immediately prior to the collision.

Plaintiff Rogers, Defendant Hollandsworth, and the other passenger Ford gave similar accounts of the occurrence. Each testified that defendant Hollandsworth backed her car into the proper lane to proceed south (west half of gravel road) and that defendant Hollands-worth did not cross over the center line. Further, each testified that as the Hollandsworth automobile started to proceed south they saw the Wages’ automobile headed down the hill straight at them, traveling at a high rate of speed estimated by them to be between 70 and 75 miles per hour.

Wages, the other defendant, testified that after passing the crest of the hill headed in the northerly direction, she saw the automobile of Hollandsworth in the middle of the road headed south. She applied her brakes continuously until the collision took place, not being able to stop prior thereto.

A State Police officer and the County Sheriff reached the scene of the collision before the automobiles were moved. They testified at the request of plaintiff and their testimony included a description of skid marks, debris and location and condition of the automobiles. They testified that the gravel road was twenty-two feet wide, and that skid marks on the gravel road left by the right wheels of the Wages automobile commenced at a point thirty-seven feet south of the point of impact and six feet from the east edge of the gravel road. The left-wheel skid marks measured forty-two feet and the skid marks continued in a straight line to the point of impact. The State Police officer testified that most of the debris was in the northbound or east half of the gravel road, while the sheriff testified that the debris was in the middle of the road. Photographs of the damaged automobiles were admitted as exhibits. They showed extensive damage to the front of each automobile and there is conflict in the conclusions which each party seeks to support by such photographs.

The gist of the wilful and wanton count against defendant Hollandsworth is that she failed to operate her automobile on the proper side of the road. The gist of the negligence count against defendant Wages is that she operated her automobile at an excessive rate of speed, thus preventing her from exercising due care with respect to other automobiles on the roadway.

No questions are raised on the pleadings, admission of evidence, instructions or on the issue of damages.

Defendant Hollandsworth argues that the trial court erred in refusing to direct a verdict in her favor at the close of all the evidence and in refusing to grant her motion for judgment notwithstanding the verdict. Defendant argues that plaintiff failed to sustain her burden of proof as a matter of law.

As indicated in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, the rules with respect to when a verdict ought to be directed at the close of all of the evidence and when a judgment ought to be entered notwithstanding the verdict of a jury are the same. Further, Pedrick indicates judgment notwithstanding the verdict ought to be entered in those cases in which all of the evidence, when viewed in the aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand.

Since plaintiff Rogers was a guest passenger in defendant Hollandsworth’s automobile, section 9-201, c 95 1/2, Ill Rev Stats 1965, is applicable and defendant Hollandsworth is liable only for wilful and wanton misconduct. El the recent case of Bernier v. Skripek, 86 Ill App2d 118, 229 NE2d 890, cited by defendant Hollandsworth, a divided court reviews at some length the Illinois precedents defining and applying the wilful and wanton misconduct rule. The court in Bernier refers to and discusses most of the cases cited by the parties in the instant case, and we believe it unnecessary to again review such cases. From such cases it may be concluded that there is a distinction between wilful and wanton misconduct and ordinary negligence. Wilful and wanton misconduct as defined in IPI 14.01 includes . . the conscious disregard for the safety of others. . . .”

Defendant argues the evidence as a matter of law fails to show any improper mental state as contemplated by the definition of wilful and wanton misconduct. To support this argument defendant Hollands-worth directs our attention to her testimony, the testimony of the plaintiff Rogers, and that of the other passenger Ford. As outlined above, the testimony of these three persons (all passengers in the Hollandsworth car) was that at the time of the collision and prior thereto the Hollandsworth vehicle was in the proper lane of the road. Such evidence does support defendant’s argument but ignores the proper application of the Pedrick rule which requires that all evidence favorable to plaintiff be considered. From the evidence considered in its aspect most favorable to plaintiff, which consists of the testimony of the two police officers, the Defendant Wages and the documentary exhibits, it may be inferred that the Hollandsworth vehicle was not on its proper side of the road but was either in the center of the road or completely. in the northbound lane of the road. Furthermore, defendant Hollandsworth was familiar with the general area, including the limited visibility between the hill and the intersection. She must be deemed to have known that on account of such limited visibility, the partial or complete obstruction of the northbound lane by her vehicle would constitute a dangerous situation. If, as we believe may be inferred from the evidence, defendant Hollandsworth backed her car either into the northbound lane or into the center of the road preparatory to heading south, the jury could have concluded that such conduct constituted a conscious disregard for the safety of others.

What we have already said in large measure is equally applicable to the cross-appeal of plaintiff Rogers from the verdict and judgment in favor of defendant Wages. The alleged negligence of defendant Wages was based on disputed facts and accordingly, we believe the issue was properly submitted to the jury and its resolution of the issue was supported by ample evidence. As we have heretofore indicated, there is a substantial conflict in the evidence concerning whether the Hollands-worth vehicle was in the east lane, the center, or the west lane of the road. Furthermore, the speed at which defendant was driving is also disputed. Under these circumstances we believe there is sufficient evidence from which the jury could properly have inferred that the conduct of the defendant Wages was either nonnegligent or not the proximate cause of plaintiff’s injuries.

For the foregoing reasons the judgments of the Circuit Court of Fulton County are affirmed.

Judgments affirmed.

ALLOY and TRAPP, JJ., concur.


author: MR. PRESIDING JUSTICE STAMOS

text:
    James Patrick O’Leary, Plaintiff-Petitioner (Cause No. 51,908) , v. Arthur J. Siegel, d/b/a Seco Construction Company, Defendant-Respondent (Cause No. 51,908), and Arthur J. Siegel, d/b/a Seco Construction Company, Third-Party Plaintiff (Respondent in Cause No. 51,907, Appellee and Cross-Appellant in Cause No. 51,943), v. Henry Sylverne and Howard L. Simons, Individually and as Copartners, Doing Business as Avondale Engineering Co., Third-Party Defendants (Petitioners in Cause No. 51,907 and Appellant in Cause No. 51,943).
    Gen. Nos. 51,907, 51,908, 51,943. (Consolidated.)
    First District, Fourth Division.
    January 28, 1970.
    Rehearing denied March 4,1970.

      Kralovec, Sweeney, Marquard & Scoby, of Chicago (George E. Sweeney and Edward V. Scoby, of counsel), for plaintiff, James Patrick O’Leary, petitioner in Cause No. 51,908.
    Patrick J. Muldowney, of Chicago (Sidney Z. Karasik, of counsel), for third-party defendants, Henry Sylverne and Howard L. Simons, individually and as copartners, doing business as Avondale Engineering Company, petitioners in Cause No. 51,907, and appellants in Cause No. 51,943.
    Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (Leonel I. Hatch, Jr. and D. Kendall Griffith, of counsel), for Arthur J. Siegel, doing business as Seco Construction Company, defendant-appellee.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff, James Patrick O’Leary, filed a one-count action against defendant, Seco Construction Company, alleging a violation of the Structural Work Act. The complaint was later amended to include a second count in common-law negligence. Seco then filed a third-party action for indemnity against plaintiff’s employer, Avon-dale Engineering Company. The jury returned a verdict of $75,000 in favor of plaintiff and a not guilty verdict in favor of third-party defendant. The trial court denied Seco’s motions of judgment notwithstanding the verdict in the original action and in the third-party action, but granted new trials in both causes.

Third-party defendant Avondale then filed a notice of appeal. Subsequently, Avondale and O’Leary filed petitions for leave to appeal from the order of the trial court granting new trials and leave was granted on both petitions, 51,907 and 51,908. The original notice of appeal claimed by Avondale was then docketed as cause 51,943 and consolidated with the two petitions.

Seco, as respondent to plaintiff’s petition and respondent-cross appellant as to third-party defendant’s petition and appeal, seeks review of the trial court’s denial of its motions for judgment notwithstanding the verdict.

The facts of the case reveal that in June 1958 Seco entered into a contract with the Federal government to perform certain reconstruction work at the United States Post Office building located at Canal and Harrison Streets in Chicago. Seco subcontracted electrical work to third-party defendant Avondale. Since Avondale was to remove certain electrical fixtures from the ceilings to afford space for new conveyors, scaffolding was brought to the jobsite. The sections of scaffolding consisted of tubular steel about 5 or 6 feet in height. They were to be stacked one on top of the other to the desired height. The lower part of the upper section is wider than the upper part of the lower section, so that one section can be inserted into another. There are holes through which pins are inserted. These pins consist of 4-inch lengths of metal 1/2 inch in diameter hinged in the center with a head at one end. The plaintiff’s foreman had ordered extra safety pins which never arrived.

Plaintiff and a fellow worker, Kenneth Quick, brought two sections of scaffolding from the first floor to the fifth floor on the evening of Sept. 11 or the morning of Sept. 12, 1959. The ownership of this scaffold was never determined. On Sept. 12 plaintiff and Quick started to erect the scaffold to the desired height. Plaintiff testified that there was a lack of safety pins, and that, consequently, the upper and lower sections were fitted into each other but were not fastened together with the pins. Plaintiff’s foreman testified that plaintiff never complained of the lack of pins, and Arthur J. Siegel, d/b/a Seco Construction Company, testified that he never inspected the scaffolding on the jobsite. During the process of erection of the scaffold, the plaintiff scaled the scaffold, having one foot on the top bar of the lower section and holding onto the top bar of the upper section. When plaintiff reached out with his other hand to grab a plank which Quick was pushing over to him, the scaffold moved erratically and plaintiff fell to the floor, sustaining the injuries complained of.

Plaintiff then filed this action against - Seco who instituted the third-party action against Avondale.

Plaintiff contends that the trial court erred in granting Seco a new trial in the primary cause. In support of this position plaintiff takes exception with the reasons given by the trial judge in granting the new trial and contends :

(1) The clauses of the Seco-General Services Administration contract were properly admitted into evidence and limited to the issue of “control” under the Structural Work Act.

(2) Even if the above were not so, the contract had wider applicability and could have been used to show Seco’s duty under the common-law negligence count.

(3) There was no reason to assume, as did the trial judge, that Ashurst, Seco’s superintendent, would have testified differently if present in court.

(4) There was sufficient medical evidence to give the jury a reasonable basis for calculation of damages.

In reference to plaintiff’s first point, Seco maintains that the Seco-Avondale subcontract and not the GSA contract was germane in showing “control.” We find no merit in Seco’s contention in view of Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247 (1965) and Dinschel v. United States Gypsum Co., 83 Ill App2d 466, 228 NE2d 106 (1967).

Seco next contends that many of the provisions of the GSA contract admitted into evidence did not bear on the issue of “control,” but imposed certain contractual obligations on Seco, the benefit of which inured to GSA and not third parties. Seco further contends that these provisions prejudiced their defense of the case.

In Larson v. Commonwealth Edison Co., supra, the court was asked to rule on jury instructions in an action based on the Structural Work Act. The court stated at page 321:

“While it may be conceded that some of the decisions in the jurisdiction involving the Scaffold Act appear to have equated ‘having charge’ with ‘supervision and control’ in varying degrees, it is our opinion the language of the statute, and the legislative intent it reflects, do not permit the conclusion that the terms are the inflexible and unbending legal equivalent of the other. The term ‘having charge of’ is a generic term of broad import, and although it may include supervision and control, it is not confined to it.”

Therefore, the issue of whether the proffered clauses show supervision and control, is not central. The primary issue is whether, given the legislative intent evinced by the statute, the clauses relate to the question of Seco’s relationship with the job, and whether Seco could be deemed to have been “in charge of” the jobsite. The standard for measuring the admissibility of evidence is, therefore, broader than that suggested by Seco. It encompasses all rights and duties of the defendant on the job, which do not unduly prejudice his case or cloud the issues, to the end that a proper determination of the relationship may be achieved.

We find that all clauses admitted into evidence in the instant case met the standard as enunciated in Larson, supra.. The fact that some of the clauses outline defendant’s duties to the government in no way detracts from their usefulness in determination of the issues at hand, since the duties of a general contractor to the owner can be determinative of the issue of who was in charge of the jobsite.

Seco, however, contends that even if the clauses were properly admitted into evidence, there was a failure to limit them to the issues of the Structural Work Act.

Ill Rev Stats, c 110, § 67(3) (1967), provides in part:

“No party may raise on appeal the failure to give an instruction unless he shall have tendered it.”

Defendant tendered only one instruction on limitation of the evidence. The instruction was accepted and given to the jury. Seco contends that it often asked the judge to give further limiting instructions which is evident from the record. The trial judge, however, decided to postpone ruling on further instructions until after final argument. After final argument, however, defendant failed to tender any further instructions. Defendant cannot now assert as error failure to limit where the trial court was not tendered instructions.

Plaintiff’s second point need not be discussed having so held on his first contention.

Plaintiff’s third point of disagreement with the trial court is over the testimony of Ashurst, Seco’s superintendent. In granting a new trial to Seco the trial court expressed the feeling that Ashurst’s testimony, “was so loose . . . because this was a deposition, not a courtroom. . . .” Seco contends that it was only upon a strong suggestion from the trial judge that the deposition was taken instead of requiring Ashurst to testify in court. Seco, however, did not object to his procedure at any time. Ashurst was Seco’s witness and if they wanted his testimony in court, it was their prerogative.

We further agree with plaintiff in that there was no reason to assume Ashurst’s testimony would have been different if given in the presence of the jury.

Plaintiff’s fourth point is that there was sufficient medical testimony to support the verdict. Defendant, however, states that the trial court was correct in questioning an alleged gap of medical evidence in granting Seco a new trial.

The alleged gap of medical evidence covers the period of October, 1959, to April, 1963, when plaintiff returned to work. Prior medical evidence shows that after O’Leary sustained the leg injuries on Sept. 12,1958, he received treatment until July, 1959. He then suffered an ulcer condition causing him to lose weight. There was medical testimony as to the relationship of the ulcer condition and the accident. The treatment of the ulcer continued until late 1959 or early 1960, when plaintiff’s weight had deteriorated to 92 pounds.

Seco, however, maintains that since there was no medical testimony as to his ability to work from late 1959 or early 1960 to April, 1963, the plaintiff failed to prove his case for lost wages and pain and suffering for this period of time.

We disagree. The evidence showed that the plaintiff was in a run-down condition after succumbing to the ulcer condition and that when he did return to work in 1963 his tasks were limited. The defendant offered no evidence to contradict the statements by the plaintiff as to his inability to work during this period. From these facts we cannot consider there to be a lack of evidence as to plaintiff’s condition. The jury could well have concluded that the facts showed a physical inability to work during the period in question.

Therefore, we believe the trial court erred in granting the defendant a new trial in the primary case.

The next issue is whether Count II of plaintiff’s amended complaint alleging common-law negligence is barred by the Statute of Limitations, HI Rev Stats, c 83, § 15 (1967), wherein all actions seeking damages for personal injuries must be filed within two years of the accrual of the cause.

The injury was sustained on Sept. 12, 1958. The original one-count complaint alleging violation of the Structural Work Act was filed on June 9, 1960. The amended two-count complaint which added a second count in common negligence was filed May 16,1966.

Seco maintains that Count II is barred by the Statute of Limitations, supra, more than two years having run since accrual of the action and filing of the complaint.

O’Leary asserts that Count II of the amended complaint dates back to the filing of the original complaint under section 46(2) of the Civil Practice Act (Ill Rev Stats, c 110, § 46 (2)).

Section 46(2) provides:

“The cause of action, cross demand or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defense or cross demand interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed, and for the purpose of preserving as aforesaid the cause of action, cross demand, or defense set up in the amended pleading, and for that purpose only, an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended.”

Subsection (2) of section 46 must be read in conjunction with subsection (1), since the former merely conditions the latter.

Section46(1) provides:

“At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand.”

Subsection (1) expressly authorizes an amendment setting up new causes of action. Subsection- (2) provides that causes of action arising from the same occurrence in the amended complaint shall not be barred by lapse of time, where the original pleading was filed in apt time.

Since the cornerstone of section 46 is the “same occurrence,” construed by judicial opinion to mean “specified conduct,” we are of the opinion that section 46(2) is operative in the present case, and the amended complaint relates back under the statute. The question of conduct required under the separate counts in no way prejudices Seco’s defense of the case, since the “specified conduct” arises from the facts originally alleged, such facts presenting sufficient notice as to the nature of liability asserted. We conclude, therefore, that the trial court properly denied Seco’s motion to strike Count II of the amended complaint.

Seco next maintains that the trial court erred in denying its motion for a judgment notwithstanding the verdict in the primary cause. Seco contends that the plaintiff failed to prove a wilful violation and proximate cause under Count I, and further, that O’Leary failed to show duty, negligent conduct, proximate cause and freedom from contributory negligence under Count II.

Under the doctrine of Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967), a movant is entitled to a directed verdict or a judgment notwithstanding the verdict, when “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict could stand.”

There is evidence tending to show that the scaffolding in question had been on the jobsite for at least two months prior to the accident and that during that period Siegel, d/b/a Seco, and his foreman Ashurst had failed to inspect the equipment on the job. In answer to a question of whether he inspected the scaffold or not, Ashurst testified, “No. Actually, a scaffold, all it is is two pieces of iron. There is nothing to go wrong with it.” If they had inspected, the evidence showed that they would have discovered a general shortage of safety pins. The pins were allegedly not only used to prevent the upper section from rising, but also to stabilize the scaffold. Testimony showed that the scaffold moved erratically as plaintiff scaled it, just prior to his fall.

Viewing these and other facts in their aspect most favorable to O’Leary leads us to the conclusion that a guilty verdict on Count I could properly stand. The jury could have reasonably concluded that Seco committed a wilful violation of the statute by having constructive notice of the lack of pins on the jobsite. There is also sufficient evidence to reasonably conclude that the lack of pins contributed to the instability of the scaffolding proximately causing O’Leary’s injuries.

Under Count II, however, the plaintiff failed to show freedom from contributory negligence. Since plaintiff was one of the workers who erected the scaffold, he knew of the lack of safety pins and the resulting hazards. Having a duty of due care to his person, plaintiff breached that duty as a matter of law by scaling a scaffold he knew to be unsafe.

Under section 68 of the Civil Practice Act a general verdict is not to be set aside where one of the grounds is sufficient, unless a motion to withdraw the issue was made. (Ill Rev Stats, c 110, § 68(4) (1965).)

Therefore, the trial court properly denied Seco’s motion for a judgment notwithstanding the verdict in the primary cause, Count I constituting a sufficient ground to sustain the general verdict.

Seco next contends that the trial court erred in refusing to grant a judgment notwithstanding the verdict in the third-party action. In support of this contention Seco asserts that it was exposed to liability under the Structural Work Act by the acts of the third-party defendant Avondale and that in similar situations the courts have allowed indemnification; citing Sack v. Arcole Midwest Corp., 33 Ill App2d 344, 179 NE2d 441 (1961). Seco further asserts that under the doctrine of Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967) it is entitled to a judgment notwithstanding the verdict in its indemnification action against Avondale.

Third-party defendant, however, disagrees with the application of Sack, supra, asserting that since it was decided before Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247 (1965) and Kobus v. Formfit Co., 35 Ill2d 533, 221 NE2d 633 (1966), it is not dispositive of the issue of indemnification under the Structural Work Act.

In Sack, supra, the court granted a directed verdict to the plaintiff’s general contractor in an action for indemnification against the subcontractor for damages arising out of a Structural Work Act case under the theory of active-passive negligence. Avondale, however, contends that since both Larson, supra, and Kobus, supra, stand for the proposition that liability under the Structural Work Act extends beyond those having immediate control of the instrumentality to those who are in charge of the jobsite, that the courts have, thereby, evinced an intent to disallow a general contractor’s indemnification from the subcontractor where the general contractor was in charge of the job.

We believe Avondale’s reasoning leads to a false application of both Larson, supra, and Kobus, supra, cases. The thrust of both cases is to give force and effect to the duty placed upon one in charge of the job to refrain from wilful conduct under the Act by making him liable to the injured party. The doctrine of active-passive negligence is however, unaffected by these decisions.

In Rovekamp v. Central Const. Co., 45 Ill App2d 441, 195 NE2d 756 (1964), noted approvingly in Miller v. De Witt, 37 Ill2d 273, 226 NE2d 630 (1967) the court stated at page 449:

“Although liability imposed by the (Structural Work) Act does not rest upon negligence, there can be degrees of fault among those who, under the Act, are accountable to an injured plaintiff. Who is more culpable, a party who supervises and coordinates the overall project, or a party who is responsible for the scaffolding and the particular work which produced the injury? Both are in charge of the work, to be sure, but of different phases of the work. Neither can escape liability to the plaintiff— thus the purpose of the Act is accomplished — but the lesser delinquent, if held accountable by the plaintiff, can transfer its statutory liability to the active delinquent whose dereliction from duty brought about plaintiff’s injury.”

Therefore, for the above reasons we deem Sack, supra, dispositive of the question of indemnification under the Structural Work Act and hold that the trial court erred in not granting Seco a judgment notwithstanding the verdict in view of Pedrick, supra.

For the foregoing reasons, the order of the trial court granting Seco a new trial in the primary cause is reversed and remanded with directions to enter judgment in the amount of $75,000 in favor of O’Leary and against Seco. The order granting a new trial in the third-party action is reversed and remanded with directions to enter judgment in the same amount in favor of Seco and against Avondale.

Reversed and remanded with directions.

DRUCKER and ENGLISH, JJ., concur.

       Geneva Const. Co. v. Martin Transfer & Storage Co., 4 Ill2d 273, 122 NE2d 540 (1954).


author: PER CURIAM:

text:
    Elaine E. Block, Plaintiff-Appellee, v. Walter M. Block, Defendant-Appellant.
    Gen. Nos. 53,191, 53,767. (Not Consolidated.)
    First District, Fourth Division.
    January 28, 1970.
    Walter M. Block, pro se, of Los Angeles, California.
    Torme & Horwich, of Chicago (Joseph H. Horwich, of counsel), for appellee.
   OPINION

PER CURIAM:

On January 3,1970, defendant sent a lengthy telegram to this court which contained the following language:

“Marrying another woman soon. Hereby withdraw appeal covering judgment divorce.” (Case No. 53767)

We studied the record and the voluminous correspondence and other documents in the appeal, and concluded that defendant’s telegram should properly be considered as a motion to dismiss his appeal. We therefore granted plaintiff an opportunity to respond to defendant’s motion and she did so through her counsel by document dated January 9, 1970, which was mailed to defendant, who for quite some time has lived in California and has not been represented by counsel. Defendant replied by seven-page letter, a copy of which was received by this court. Amidst charges of various crimes or con-tempts on the part of his wife, her former attorneys, trial court judges, the clerk of this court, and others, and recommendations for jail sentences, disbarment, impeachment, etc., defendant restated his wish that his appeal from the divorce decree be withdrawn so he could marry another woman.

Appeal Number 53,767 is therefore dismissed on motion of the appellant. Considering defendant’s charges recited above as petitions for action by this court, they are hereby denied.

In another case pending in this court (Number 53,191), defendant had appealed from an order of June 13, 1968, directing him to pay temporary alimony to plaintiff. Since dismissal of appeal Number 53,767 leaves the divorce decree (which was entered on October 25, 1968) in full force and effect, we are required to examine that decree to ascertain its effect on the prior order for temporary alimony.

The decree recites that certain of its provisions were based upon an oral agreement “freely and voluntarily entered into by and between the parties.” Pertinent are the following paragraphs of the decree:

(B) That all rights, claims and demands of the plaintiff to alimony, past, present and future from the defendant shall be and the same are hereby forever barred, terminated, ended and released, the plaintiff having heretofore in open Court waived and relinquished such rights and claims against the defendant.
e • •
(H) That all Appeals heretofore taken in conjunction with this cause, namely Elaine E. Block vs. Walter M. Block, shall be dismissed instanter.

It appears from defendant’s telegram that, after recognizing the validity of the divorce decree through dismissal of his appeal therefrom, he nevertheless wished to proceed with the appeal from the order for temporary alimony. This we consider to be legally inconsistent, and defendant’s request therefor must be denied. Giving effect to paragraph (B) of the decree, the order for temporary alimony has become unenforceable. By that provision, in conjunction with paragraph (H) of the decree, it was obviously the intent of the parties and the court to dispose of the issue concerning the temporary alimony order. Accordingly, defendant’s appeal Number 58,191 is also dismissed.

Viewing the divorce decree in its entirety, the intention becomes apparent to dispose finally of all matters then pending between the parties. This included still another appeal by defendant (Number 52,717) from a contempt order entered December 5, 1967, against defendant for violating an injunction which had restrained him from any oral communication with plaintiff. Defendant’s telegram also expressed his desire that this appeal be permitted to proceed. It is our understanding, from statements made by plaintiff’s counsel in open court (at the time of oral argument in cases numbered 53,191 and 53,767), and from documents filed in this court, that counsel had been formally advised by the trial judge who had entered the contempt order that no action would be taken in regard to its enforcement. No order by this court on this subject appears to be appropriate, however, since we had dismissed that appeal for want of prosecution on September 25, 1968, defendant having failed to file abstracts and briefs as required by Supreme Court Rule 307(c), Ill Rev Stats 1967, c 110A, § 307(c).

Appeals dismissed.


text:
    Vincent R. Ewald, Plaintiff-Appellant, v. Edward E. Roelofs, Leland H. Rayson, Palos-Worth Press, Inc., an Illinois Corporation, Ilene Merrifield, et al., Defendants, Leland H. Rayson, Edward E. Roelofs, Palos-Worth Press, Inc., an Illinois Corporation, Bernie McCarty and Roger Culp, Defendants-Appellees.
    Gen. No. 53,223.
    First District, Fourth Division.
    January 28, 1970.
    Vincent R. Ewald, of Oak Lawn (Galgano & Barton, of Chicago, of counsel), appellant.

      Brunswick, Beemsterboer & Jemilo, of Blue Island (Joseph E. Brunswick, of counsel), for appellees.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff, Vincent R. Ewald, a licensed attorney, filed a libel action against defendants. After defendants’ motion to strike the complaint was sustained, plaintiff was given leave to file an amended complaint. Upon plaintiff’s motion all named defendants were dismissed except appellees Rayson, Roelofs, Palos-Worth Press, Inc., Bernie McCarty and Roger Culp. The 18-count amended complaint consisted of nine odd-numbered counts alleging libel of plaintiff in his profession as a licensed attorney-at-law and nine even-numbered counts alleging libel of plaintiff in his capacity as Village Attorney for the Village of Hickory Hills and attorney for the Village of Worth. Defendants moved to strike the amended complaint for failure to state a cause of action. The trial court sustained the motion and dismissed the suit. Plaintiff appeals.

Plaintiff in this court abandoned the nine odd-numbered counts alleging libel in his profession as a licensed attorney-at-law in view of Tunnell v. Edwardsville Intelligencer, Inc., 99 Ill App2d 1, 241 NE2d 28, revd on other grounds, 43 Ill2d 239, 252 NE2d 538 (1969). Plaintiff now relies on the nine even-numbered counts alleging libel in his capacity as municipal attorney and concedes that their legal sufficiency must be measured in light of New York Times Co. v. Sullivan, 376 US 254, 11 L Ed2d 686 (1964) and Coursey v. Greater Niles Tp. Pub. Corp., 40 Ill2d 257, 239 NE2d 837 (1968), affg 82 Ill App2d 76, 277 NE2d 164 (1967).

Paragraphs 1-5 of Count I of the amended complaint are incorporated by reference into all nine of the even-numbered counts. The plaintiff therein alleges that defendant Palos-Worth Press, Inc. publishes the WorthPalos Reporter, a newspaper of general circulation in Worth having a circulation of approximately 14,200; that at all times mentioned defendants Roelofs and Rayson were copublishers of the Worth-Palos Reporter and defendants Culp and McCarty were employees.

Plaintiff further alleges that he is a licensed attorney of the State of Illinois maintaining , an office in Chicago and Oak Lawn, and that he has always conducted and demeaned himself with honesty and fidelity and has never been guilty nor suspected of being guilty of any misconduct or malpractice in his said capacity and profession, thereby enjoying a good name and reputation as an attorney. The complaint further alleges that plaintiff served as Village Attorney of the Village of Hickory Hills from May 25,1961, to April 30, 1967, and is now serving as attorney for the Village of Worth, said duties having commenced on May 4,1965.

Count II further alleges that on July 14, 1966 defendants published the article referred to as Exhibit 10 which stated:

“It is my opinion, the self-interested attorney and the power-hungry president are so bedazzled by their position, they automatically throw their weight around by turning a deaf ear to the ‘masses.’ Somewhere it is written, ‘Power Corrupts.’
“We shudder when the names Castro, Mao Te Sung, and Viet Cong are mentioned. These names represents [sic] forms of government that are abhorrent to decent freedom loving people.
“The present governing body of Hickory Hills is every bit as abhorrent as those in far away lands.”

Plaintiff alleges that he was the attorney for the Village of Hickory Hills at the time the article was published and that being equated to Castro, Mao Te Sung and the Viet Cong was false and defamatory and **. . . was made maliciously by the said defendants in a deliberate attempt to injure the plaintiff and prejudice him in his character, reputation and good standing as a municipal attorney. . . .” Damages of $100,000 are alleged.

Count IV further alleges that on October 6, 1966 defendants published the article referred to as Exhibit 13 which stated:

“President John Boyce was also called in and he took village attorney Vincent Ewald along for legal counsel. Ewald advised Boyce not to sign an affidavit or complaint and he didn’t sign.
“Vincent Ewald, as village attorney, after an unanimous vote by the village board requested a thorough investigation, was duty bound to help the State’s Attorney to clear up the alleged charges of shakedown. Instead, he told Boyce not to do a thing to help clear up the scandal, and Boyce took his advice. This was a definite move to block the investigation.
“Was Vincent Ewald there as the private attorney for John Boyce? We doubt it, but if he was the village shouldn’t pay him, and he violated his trust to the village.
“Was Vincent Ewald there as the official attorney for the village of Worth? If so, he very definitely abused the order to help clear up the scandal.
“Was Vincent Ewald there as a politician, himself involved in the scandal?
“Can you imagine Ewald saying to John Boyce— ‘John, why did you ever tell the State’s Attorney’s office that the contractor told you about the 2% shakedown attempt?’ Boyce says, ‘because it was the truth.’ Ewald: ‘What’s truth? In the future keep your mouth shut and I’ll tell you what the truth is.’ ”

Plaintiff alleges that he was the attorney for the Village of Worth at the time the article was published and that being so depicted was false and defamatory and “. . . was made maliciously, with knowledge that said statements were false in a deliberate attempt to injure the plaintiff and prejudice him in his character, reputation and good standing as a municipal attorney. . . .” Damages of $100,000 are alleged.

Count VI further alleges that on October 20, 1966, defendants published the cartoon referred to as Exhibit 15. The cartoon entitled, “Playing Around with the Law,” depicted plaintiff standing over a large table and altering by pen the provisions of Ill Rev Stats, c 46, § 28-1, the referendum statute, while the State’s Attorney and Better Government Association looked on with disdain. Plaintiff alleges that the publication of the cartoon was false and defamatory and “. . . was made maliciously by the said defendants in a deliberate attempt to injure the plaintiff and prejudice him in his character, reputation and good standing as a municipal attorney. . . .” Damages of $500,000 are alleged.

Count VIII further alleges that on October 27, 1966, defendants published the article and cartoon referred to as Exhibit 16 and that defendant McCarty was the person who drew the cartoon. The cartoon depicted plaintiff avariciously clutching a large bag of money labeled, “5 Figure Legal Fees on Big Bond Issues.” Plaintiff alleges that the publication of the cartoon was false and defamatory and “. . . was made maliciously, with knowledge that said statements were false in a deliberate attempt to injure the plaintiff and prejudice him in his character, reputation and good standing as a municipal attorney. Damages of $500,000 are alleged.

Count X further alleges that on October 27, 1966, the defendants published the article and cartoon referred to as Exhibit 16 which stated:

“Estimate of legal fees in Hickory Hills since Vince Ewald came to town range from $51,000 to over $90,000. Involved in the water supply line now proposed by Petkiewicz-Ewald is a legal fee of $40,000 to $60,000. Temporarily, at least, the public has blocked the million dollar special assessments for roads plan — this plan has a gold lined legal fee of from $60,000 to $100,000 — and this one could come alive anytime. Let’s forget about the fantasy these boys once had, a golf course bonanza. None of this includes the political donations developers have complained about.”

Plaintiff alleges that the fees were grossly exaggerated by a factor of from three and one-half to five times the amount normally paid and that the exaggeration was made “. . . deliberately and maliciously in an attempt to injure the plaintiff and to prejudice him in his character, reputation and good standing as a municipal attorney. . . .” Damages of $500,000 are alleged.

Count XII further alleges that on December 22, 1966, the defendants published an article referred to as Exhibit 24 which stated:

“So far Attorney Ewald’s advice has cost the Village of Worth an estimated $615,000 (for nothing —for sheer waste — for hanky-panky — for politics — ■ for incompetence).
“Is it true that the Worth water system is costing (or losing) $615,000 ? Well, let’s look at a few facts. Last April 19 the Worth Board awarded the water bonds to McDougall and Condon at 4.62% interest and 2y%% discount, and at that time there was a market for bonds. But ‘hanky-panky’ Ewald called a special meeting the next night and had all bids thrown out. The bonds haven’t been sold to this day, while the bond market has been going up, and the combined rate of interest plus discount on revenue bonds is now about 6%. The present bond cost over a 40-year period will add a cost to the water users of $587,000. — Ask your banker or accountant. Add to this the simple fact that the village has agreed to overpay Ewald for his (bad) advice $25,000 — the loss is over $615,000.”

Plaintiff alleges that he was attorney for the Village of Worth at the time the article was published and that the article was false and defamatory, and “. . . was made maliciously, with knowledge that said statements were false in a deliberate attempt to injure the plaintiff and prejudice him in his character, reputation and good standing as a municipal attorney . . , Damages of $100,000 are alleged.

Count XIV further alleges that on January 12, 1967, the defendants published an article referred to as Exhibit 27 which stated:

“4 Parties Enter H. H. City Election”
“The REPORTER has on occasion observed that Vincent Ewald is a master at creating political confusion, particularly in Hickory Hills. But the present confusion, with four political parties entering candidates in the city election this spring, cannot be credited to Mr. Ewald, although it is a situation which must delight his little scheming mind.”

Plaintiff alleges that he was the attorney for the Village of Hickory Hills at the time the article was published and that it was false and defamatory and “. . . was made maliciously, with knowledge that said statements were false in a deliberate attempt to injure the plaintiff and prejudice him in his character, reputation and good standing as a municipal attorney. . . P Damages of $100,000 are alleged.

Counts XVI and XVIII further allege that between February 24, 1966, and March 30, 1967, articles referred to as Exhibits 1 to 39a were published by the defendants and that all of the articles were part of an organized plan and program to destroy the plaintiff’s professional standing in the community and his personal standing as a citizen in the community. He further alleges that the articles were false and defamatory and “. . . were made maliciously, with knowledge that said statements were false in a deliberate attempt to injure the plaintiff and prejudice him in his character, reputation and good standing as a municipal attorney . . . .” Damages of $1,000,000 are alleged in each of these two counts.

OPINION

Plaintiff contends that the amended complaint alleged a sufficient cause of action in libel conforming to the precepts of New York Times Co. v. Sullivan, 376 US 254, 11 L Ed2d 686 (1964) and Coursey v. Greater Niles Tp. Pub. Corp., 40 Ill2d 257, 239 NE2d 837 (1968), affg 82 Ill App2d 76, 277 NE2d 164 (1967). Defendant, however, contends that the complaint was insufficient in that it failed to properly allege malice.

In New York Times, supra, it was held that a public official in. a libel action for a defamatory falsehood relating to his official conduct could not recover damages unless he proved that the statement was made “with malice,” that is, with knowledge that it was false or with a reckless disregard of whether it was false or not. A subsequent Illinois case has held that a municipal attorney is within the category of a “public official,” and therefore required to overcome the New York Times Co. v. Sullivan, supra, constitutional protection afforded defendant. Tunnell v. Edwardsville Intelligencer, Inc., 99 Ill App2d 1, 241 NE2d 28, revd on other grounds, 43 Ill2d 239, 252 NE2d 538 (1969). In light of that case plaintiff abandoned the odd-numbered counts in this court and now relies solely on the adequacy of his pleadings in the even-numbered counts alleging libel in his capacity as municipal attorney.

In Coursey v. Greater Niles Tp. Pub. Corp., supra, the court discussed the proper allegations in a cause of action of this nature and said at page 266:

“The amended complaint did considerably more than repeat the epithet of ‘actual malice.’ As previously noted, it charged that the defendants, and each of them, intending to injure the plaintiff’s good name and to injure him in his livelihood, with knowledge that it was false and with reckless disregard to whether it was false or not, maliciously composed, published and caused to be published in their said newspaper, an article containing false, scandalous and malicious libels concerning the Plaintiff! . . . Therefore, we hold the amended complaint was legally sufficient and created triable issues of fact.” (Emphasis supplied.)

In weighing the sufficiency of the allegations of malice in libel cases where plaintiff is a “public officer” the necessity for pleading knowledge of falsity or reckless disregard of falsity is also pointed out in Suchomel v. Suburban Life Newspapers, Inc., 40 Ill2d 32, 240 NE 2d 1 (1968), and Doctors Convalescent Center, Inc. v. East Shore Newspapers, Inc., 104 Ill App2d 271, 244 NE 2d 373 (1968).

Of the nine even-numbered counts upon which plaintiff relies in the instant case only six sufficiently allege the requisite malice. In Counts II, VI and X plaintiff fails to allege that the defendants either knew of the falsity of the contents or exhibited a reckless disregard as to its falsity. The publications themselves do not raise any inference as to defendants’ knowledge or conduct in determining the truth or falsity of the contents. Since malice has been defined in terms of “knowledge” or “reckless disregard” of the falsity of the contents of the alleged libel (New York Times Co. v. Sullivan, supra), we believe this omission to be fatal.

Counts IV, VIII, XII, XIV, XVI and XVIII allege knowledge of falsity on the part of the defendants and, therefore, sufficiently meet pleading standards in a libel action by a public official. We hold that the trial court erred in dismissing these six even-numbered counts and its order in that respect is reversed. We affirm that part of the ruling which dismissed Counts II, VI and X and the odd-numbered counts which were abandoned by plaintiff before this court. The cause is remanded for proceedings not inconsistent with the views herein expressed.

Affirmed in part, reversed in part and remanded.

DRUCKER and ENGLISH, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Jeffries, Defendant-Appellant.
    Gen. No. 53,518.
    First District, Fourth Division.
    January 28, 1970.

      Stephan R. Yates and Kenneth L. Gillis, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion fef the court.

Defendant, Charles Jeffries, appeals from his conviction for battery. Defendant and two other men, Jerry Lewis and Edward Ross, were charged with battery and after a bench trial the defendant and Lewis were found guilty and sentenced to serve four months in the House of Correction. Ross was discharged. On Appeal defendant contends that he was not proven guilty beyond a reasonable doubt and that his sentence was arbitrary and excessive.

The complainant, Robert Lunde, testified that on the morning of October 18, 1968, he was being held in the Boys Court lockup with thirty-five or forty other men. As he sat on a bench in the lockup cell a person accosted him, who was not one of the instant defendants. This person demanded that he move so that he might lie down. At the same time a second man approached him and began leaning on him calling him a “smart punk.” Someone yelled out and then he was hit in the nose by Jerry Lewis. He identified Lewis by his orange slacks and facial appearance. Several other men then joined in the attack, striking him about the body. He identified one of these men as Charles Jeffries, the defendant. He also identified Edward Ross as one of his assailants but stated that he was not certain concerning this identification.

In his own behalf defendant testified that he had approached the complainant and asked him to move over but that he was just joking; that he was not involved in striking complainant, as he was in the washroom during the fight. However, Lewis testified that defendant asked the complainant to move over and that defendant was still seated next to the complainant when the fight began. A court bailiff testified that he saw Ross sleeping when he entered the lockup to give the men some food at about the time when the trouble began.

Lewis and Jeffries were found guilty. Ross was discharged. The trial judge found that:

[I]n his (the complainant, Robert Lunde) testimony, right from the beginning, he identified Jerry Lewis by the color of his trousers and then upon further interrogation he identified him — he says he recognized him not only by the trousers but by his face.
According to Mr. Lewis’s testimony he admitted the fact that he was close to him with Mr. Jeffries. With Mr. Ross there was a hesitation on his part; however, he did state that he wasn’t sure, not sure. That’s why I discharged the young man and, also, based on the testimony of the bailiff in this Court.
However, Mr. Jeffries, he did state that Mr. Jeffries did strike him. And in the testimony — Mr. Jeffries, also, in his own testimony, admitted the fact that he was close to Mr. Lewis and to the complaining witness.

Defendant contends that he was not proven guilty beyond a reasonable doubt. Although the evidence is conflicting, there is evidence showing that the defendant asked the complainant to move over in a joking manner; that he was close to the complainant; that he was still sitting next to. the complainant when the fight began and was not in the washroom; and that he struck the complainant about the body. Where the evidence is merely conflicting it is the function of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony. We will not substitute our judgment for that of the trier of the facts. People v. Scott, 34 Ill2d 41, 213 NE2d 521; People v. Larry, 111 Ill App2d 18, 249 NE2d 673; and People v. Johnson, 87 Ill App2d 390, 231 NE2d 647.

Furthermore, defendant claims that since both his identification and that of Ross, who was discharged, related to the same incident, a reasonable doubt would exist as to his guilt. However, Edward Ross’ alibi evidence, that he was sleeping throughout the fight, was supported by a disinterested witness, the bailiff in charge of the lockup, Jeffries’ alibi evidence that he was in the washroom during the fight conflicted with other testimony and was not corroborated by any other testimony. Jerry Lewis testified that Jeffries was still sitting next to the complainant when the fight began and Jeffries himself stated that he was close to both Lewis and the complainant. The judge believed the alibi of Ross but not that of Jeffries, and we will not substitute our judgment for his on the matter of credibility of the witnesses. We find that, if believed, as it was, the record contains more than enough evidence to establish the guilt of defendant beyond a reasonable doubt. See People v. Williams and Steele, 117 Ill App2d 34, 254 NE2d 81.

The defendant also contends that his sentence of four months in the House of Correction was arbitrary and excessive. He argues that it should be reduced pursuant to Supreme Court Rule 615 (Ill Rev Stats 1967, c 110A, § 615(b) (4)). A person convicted of battery may be imprisoned in a penal institution other than the penitentiary not to exceed six months or fined up to $500 or both (Ill Rev Stats 1967, c 38, § 12-3 (b)).

During the hearing in aggravation and mitigation the evidence showed that defendant was nineteen years old and that he resided with his mother whom he helped to support by working forty hours a week as a press operator. He was also attending classes at the Central Y.M.C.A. He had never been convicted of any offense prior to this judgment. He had one prior arrest for disorderly conduct but was discharged. The trial judge found that Jerry Lewis (who had not been employed for four weeks) was “the aggressor, the one that created all the provocation.”

Yet both Lewis and Jeffries received the same sentence. The case was tried immediately after the incident occurred and defendant’s counsel did not request probation.

While this court is fully aware that the attack upon the complaining witness took place in the lockup of a courtroom and that this conduct cannot be condoned, nevertheless we believe that a youth with defendant’s background can best be rehabilitated and society better served if he were given the opportunity to show that he is eligible for probation. As stated in People v. Smice, 79 Ill App2d 348, 353, 223 NE2d 548:

. . . [Probationary surveillance is itself an authorized mode of mild and ambulatory punishment intended as a reforming discipline. It is intended to be a means to restore offenders who are good probationary risks to society and to afford the unfortunate another opportunity by clemency. (People v. Nordstrom, 73 Ill App2d 168, 175, 219 NE2d 151 (1966).) The following expression in People v. Evrard, supra, at page 276, is appropriate relative to the circumstances of this case:

“If this defendant is of prior good record it may well be that probation would be adequate punishment and would best effect his rehabilitation. Sections 117-1 and 117-2 (Ill Rev Stats 1963, ch 38 Sections 117-1, 117-2), provide for probation in proper cases and the basic rules of conduct to which a probationer must conform.”

We affirm the judgment finding the defendant guilty but reverse the order sentencing him to four months in the House of Correction and remand with directions to the court to procure an investigation and report from the probation officer and thereupon consider placing defendant on probation. If, in the opinion of the court, the facts thus presented do not warrant probation, the court may then resentence defendant.

Judgment affirmed and cause remanded with directions.

ENGLISH and LEIGHTON, JJ., concur.

       Ill Rev Stats 1967, c 38, § 12-3 (a):
      A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or
      (2) makes physical contact of an insulting or-provoking nature with an individual.

       He was also discharged on the disorderly conduct charge for which he was awaiting trial on the day of the incident.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jean L. DeSavieu, Defendant-Appellant.
    Gen. No. 53,128.
    First District, Third Division.
    January 29, 1970.
    Rehearing denied February 17, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard Zulkey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Jean L. DeSavieu, was charged with robbery. After a bench trial he was found guilty of that crime and sentenced to a term of 2 to 7 years. On this appeal, defendant contends that he was not proved guilty beyond a reasonable doubt, and that the identification procedure was so inherently suggestive that he was denied a fair trial.

Marnella Rederer, manager of a food store located at 4136 South Wentworth in Chicago, was robbed in the store on April 15, 1966 by two men, one of whom was masked. Two delivery men and a helper who were in the store during the robbery were forced into the basement, and were unable to identify either robber. The complaining witness identified defendant as one of the robbers. She testified that it was he who jumped over the counter next to her. He asked for the money, and she pointed to a file cabinet where the money was kept. Defendant took the money out of the drawer, and at the same time held a sawed-off shotgun on her. He then jumped over the counter again, and he and his companion fled. The incident took nearly five minutes. The store was well lighted, and defendant came next to her to take the money. He was approximately six to eight inches from her. She kept looking at defendant’s face so that she would not forget it. She also testified that after the robbery she had a conversation with Officer McLeod of the Chicago Police Department. He brought many photographs to her. She did not remember how many, but she could not identify any of them. He then showed her a photograph of defendant, and she recognized him as one of the robbers. The officer did not suggest to her who the robber was. Officer McLeod testified that he showed the complaining witness about twenty photographs, and that she identified defendant as one of the robbers from those photographs.

On April 25, 1966, the complaining witness viewed three men in a lineup, and identified defendant as one of the robbers. The other two men in the lineup were about the same height and weight as defendant.

The complaining witness recalled having a conversation with defendant’s attorney some time prior to trial, but denied telling him that all Negroes look alike. She did tell the attorney that she had been unable to identify a man from a previous robbery.

One of the delivery men and the store clerk testified for the defense that they were present when two armed men robbed the store. They were forced into the basement by one of the robbers. They never had an opportunity to see either robber, and were unable to identify anyone. The delivery man testified that the robber in question was carrying a rifle.

Defense counsel testified that he had a conversation with the complaining witness a couple of months prior to trial. She told him that a detective had brought some photographs, but that she could not identify them because all Negroes look alike. The detective then brought one photograph and told her that this was the man, and she then identified him at a lineup. The attorney also testified that she discussed another robbery with him.

After both sides rested and had made final argument, the trial judge allowed a defense motion to reopen the case for additional cross-examination concerning the identification. The complaining witness testified that, at the time of the robbery defendant was wearing a brown speckled coat, and had a hat or cap on his head. He was shorter and stockier than the other robber, who was thin, and was masked. Because she was unable to identify the man who had robbed her previously, she concentrated on defendant’s face so that she would not forget it. She could not recall what other description she had given the police concerning the robber.

Officer McLeod was also called for additional cross-examination as to the identification of defendant. The officer testified that he had received a detailed description from a witness who was outside the store at the time of the robbery. The officer also testified that the complaining witness described the robber in question as being 5 feet, 8 inches tall, with a mustache and black hair. She described him as having a dark complexion, but did not give his weight.

Defendant first contends that the identification made by the State’s sole eyewitness was so vague, doubtful and unworthy of belief that it failed to establish defendant’s guilt beyond a reasonable doubt.

It is well settled that a positive identification by one witness with sufficient opportunity to observe the defendant may be sufficient to sustain a conviction. People v. Mack, 25 Ill2d 416, 185 NE2d 154 (1962); People v. Upshaw, 58 Ill App2d 256, 207 NE2d 728 (1965). And the adequacy of the identification raises a question of the credibility of the witnesses which is a matter for the determination of the trier of fact with the superior opportunity not only to hear the testimony of the witnesses but to observe their demeanor while on the witness stand. People v. Jackson, 28 Ill2d 566, 192 NE2d 873 (1963). In weighing the evidence of identification, the surrounding circumstances, together with the probability or improbability of an adequate opportunity for definite observation must be considered. People v. Marshall, 74 Ill App2d 472, 221 NE2d 128 (1966).

In the instant case, we see no reason to disturb the trial court’s finding that the identification was accurate. The complaining witness had an excellent opportunity to observe defendant for nearly five minutes in a well-lighted store. Moreover this observation was made at close range, since she testified that, while defendant was taking the money, she was just a few inches away from him. She also testified that she kept on looking at his face so that she would not forget it. She explained this concentration on the fact that she was unable to identify the perpetrator of a previous robbery. She also identified defendant at a properly conducted lineup. While she was unable to recall the extent of her description to the police, the police officer testified that she did give a general description of the robber in question.

Defendant has not called our attention to any internal discrepancies in complaining witness’s testimony. There were only minor discrepancies in the State’s case. The delivery man testified that the robber was carrying a rifle, while the complaining witness testified that he was carrying a sawed-off shotgun. The police officer testified that the complaining witness selected defendant’s photograph from a group of about twenty pictures shown to her, while she testified that she was unable to identify any of the pictures from the group shown to her, and that then the police officer showed her a photograph which she recognized as the robber. We do not believe that such minor discrepancies discredit the testimony of the complaining witness.

The complaining witness denied unequivocally that she told defense counsel that she was unable to identify the robber because all Negroes look alike. This testimony merely presented a conflict in the evidence which was resolved by the trier of fact.

Defendant next contends that the identification procedure was so unduly suggestive as to have denied him a fair trial.

The complaining witness testified that the police officer first produced a large number of photographs, from which she was unable to identify either of the robbers. The officer showed her a photograph of defendant, and she identified him as one of the robbers. She also testified that the officer never made any suggestion to her as to who the robber was. While the police officer testified that she selected defendant’s picture from the initial group of photographs shown to her, for the purpose of the argument that the photographic identification was unduly suggestive, we will accept the testimony of the complaining witness that she viewed defendant’s picture separately.

An out-of-court identification may be so suggestive as to deny defendant’s right to due process; whether it is so suggestive depends upon the circumstances of each case. Stovall v. Denno, 388 US 293 (1967). This principle has been extended to photographic identifications. Simmons v. United States, 390 US 377 (1968). However in the Simmons case, in affirming the conviction, the court stated that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification was so suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Under the standard enunciated in the Simmons case, we find that the photographic identification in the instant case did not violate due process. The complaining witness had an excellent opportunity to view defendant during a daytime robbery in a well-lighted store. During the robbery, defendant stood only a few inches from her for several minutes while he obtained the money, and she testified that she concentrated on his face so that she would not forget him. She testified that she was shown a large group of pictures, but was unable to identify any of them. She was then shown a picture of defendant, and immediately identified it. Several days later, she identified defendant in a properly conducted lineup. It seems evident that the complaining witness’s identificatian of the defendant at trial was independent of the photograph, and was based on her observation of defendant at the scene of the crime.

Defense counsel testified that the complaining witness informed him that she was unable to identify anyone and that the police officer, when showing her defendant’s picture, told her that this was the man. However the complaining witness denied making those statements and testified that the officer made no suggestion as to who the robber was. As we have noted, this testimony presented a conflict of evidence properly resolved by the trial judge. We therefore conclude that the fact that defendant’s photograph was viewed separately was not so suggestive, without more, as to violate due process or to render inadmissible the in-court identification of defendant.

• The judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George L. Strong, Defendant-Appellant.
    Gen. No. 53,335.
    First District, Third Division.
    January 29, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Paul P, Biebel, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant George Strong was found guilty of rape in a non jury trial and sentenced to the penitentiary for a term of one to five years. In this court he contends that he did not expressly and understanding^ waive a jury trial and that the State failed to prove him guilty beyond a reasonable doubt.

The prosecutrix, a married woman and the mother of five children, was employed as a desk clerk and maid at a small hotel on Chicago’s south side. She testified that she was changing bed linen on August 10, 1966, at approximately 3:00 a. m., when Strong, whom she had never seen before, entered the room and asked if she knew a man by the name of “Johnny.” She told him she did not, but that she would check the list at the desk for his name. As she stepped into the hall Strong, who was swaying back and forth, blocked her way. With a knife in his hand he forced her back in the room, saying as he did so, “I have already killed one woman. I hate to have to kill you.” She told him there was money in the office; he replied that he did not want money and said, “You know what I want. I want you,” and started feeling under her dress. He ordered her to get into bed, pulled her underclothes off with her assistance and had sexual intercourse with her.

The bell at the front desk rang and she said the manager probably had come in to check on her and if she did not appear the manager might call the police. Strong asked if she would come back and she assured him she would. A man and a woman were at the desk waiting to register. She was trembling and the woman asked her what was wrong; she told the woman what had happened and asked her and the man to stay there while she telephoned the police. They said they would and she entered the office and made the call.

When the police responded to her call, she told them that she had been raped and that the man who raped her was in a room down the hall. She pointed out the room; police officers pushed the door open, flashed a light into the dark room and ordered the man to come out. He was searched and a knife was found in his pocket. When asked what he was doing there he replied that he was waiting for “Janet,” his girl friend. As he was being taken from the building he pointed out the prosecutrix as “Janet.” She stated that her name was Victoria, not Janet, and that she did not know the man.

Strong testified that he knew the prosecutrix for a few weeks prior to the night he was arrested and had been with her on three occasions. The first time he met her was in late June or early July 1966, when he approached her as she was standing on the sidewalk near the hotel. She was attractive and he said he would like to see more of her. She was friendly and told him that she would soon be working at the hotel. He said he was familiar with the hotel because he was a friend of the owner’s nephew and that he would be dropping in to see her. He did so toward the end of July. She was alone at the desk and he suggested that if she would tell him what room she would be in he would buy some beer and meet her there. She smiled and agreed. She gave him a room number and he met her. He told her he had a job, would be making nice money and would give her some. He fondled her, turned the lights out and had sexual relations with her. This was repeated a week or two later. This time she asked about money and he promised he would give her some when he got paid. The next time he saw her was the night he was arrested. After they had intercourse she asked if he had anything for her. He said no and she swore at him. Just then the bell rang and she got up and left. He waited, unsuspectingly, for 25 or 30 minutes, for her to return. He admitted possessing the knife but denied pulling it from his pocket, threatening the prosecutrix or forcing her to have relations with him.

At the police station, after his arrest, Strong also said that he had known the prosecutrix since the last of June or the first of July and he denied raping her. He said nothing, however, about having intercourse with her on prior occasions.

A witness for Strong went beyond his testimony. She testified that he and the prosecutrix were together on an occasion that he did not mention. She said that at 8:00 a. m., on a day in late June or early July, as she was on her way to attend a meeting in her church, she saw him sitting in his auto. She stopped and asked him to drive her someplace after the meeting was over; he said he could not because he had to take the girl who was with him to the north side. She testified that this girl was the prosecutrix.

Although the prosecutrix was not called in rebuttal, her direct testimony contradicted Strong’s testimony and that of his witness. She had testified on direct examination that she started to work at the hotel the last week in July and that the first time she saw Strong was the night of the rape.

Because the prosecutrix helped the defendant remove her undergarments, made no outcry and did not resist him, he claims that the evidence did not establish beyond a reasonable doubt that the intercourse was against her will. A conviction for rape can be upheld only if the victim’s will to resist has been overcome. HI Rev Stats 1963, c 38, § 11-1. While the evidence must prove that the act was against her will, there is no definite standard for determining the amount of resistance

required. Such a determination must be made from the facts and circumstances of each case. People v. Smith, 32 Ill2d 88, 203 NE2d 879 (1965); People v. Faulisi, 25 Ill2d 457, 185 NE2d 211 (1962). When the victim retains the power to resist, voluntary submission, no matter how reluctantly yielded, constitutes consent. People v. Rossililli, 24 Ill2d 341, 181 NE2d 114 (1962). Resistance is unnecessary, however, under circumstances where it would be futile or dangerous, such as when the defendant is armed with a dangerous weapon. People v. Scott, 82 Ill App2d 109, 227 NE2d 72 (1967).

The prosecutrix submitted to the act only after Strong brandished a knife and threatened to kill her. She did not have to endanger her life by resisting forcibly, or run the risk of being slashed by the knife by crying out. As far as she knew he held the knife in his hand throughout the act. She frankly stated on direct examination that she helped take off her underclothing, but under the circumstances this behavior does not indicate the voluntary submission necessary to constitute consent.

The defendant points to the lack of medical testimony as tending to create a reasonable doubt of his guilt. After the events at the hotel, the prosecutrix was taken to two hospitals for medical examinations. No doctors testified at the trial and no medical records were introduced. The prosecutrix did not testify that she was lacerated or bruised and, since the intercourse was freely admitted by Strong, medical evidence that sexual intercourse had taken place would have been immaterial.

The uncorroborated testimony of a prosecutrix is sufficient to sustain a conviction for rape if her testimony is clear and convincing. People v. White, 26 Ill2d 199, 186 NE2d 351 (1962). If her testimony is not of such character it must be corroborated by other evidence. People v. Faulisi, 25 Ill2d 457, 185 NE2d 211 (1962). In the case at hand, not only was the prosecutrix’ testimony clear, unshaken and convincing, but it was supported by other evidence. She made an immediate complaint to the couple who rang the bell and she telephoned the police at once. Upon their prompt arrival, she repeated her complaint and led them to the room where the rape occurred and to the man she accused. A complaint promptly made is itself corroborative of a rape victim’s testimony. People v. DeFrates, 395 Ill 439, 70 NE2d 591 (1946); People v. Hayes, 93 Ill App2d 198, 236 NE2d 273 (1968). Furthermore, the fact that the prosecutrix was shaking after the occurrence tended to support her complaint, and her charge that her attacker was armed with a knife was immediately substantiated.

The sufficiency of evidence and the weight to be given the testimony of witnesses are questions to be determined by the trier of facts. In view of the opportunities for observation of the witnesses available to the trial judge in a non jury trial, a court of review will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt of the defendant’s guilt. People v. De Groot, 108 Ill App 2d 1, 247 NE2d 177 (1969); People v. Pendleton, 75 Ill App2d 314, 221 NE2d 112 (1966). In judging the credibility of the witnesses in this case the court observed :

“I have to say that the complaining witness seemed like a forthright person, not revengeful, a married woman with five children; and I can’t say that the defendant appeared straight forward, either in his answers or his demeanor.”

A careful examination of the record reveals no reason to disagree with the court’s appraisal of the witnesses nor with its finding that the evidence was sufficient to establish the defendant’s guilt.

The defendant questions the propriety of the court’s acceptance of his waiver of a jury trial. He contends that the waiver was not understandingly made since there was no explanation in open court of the meaning of a jury and a non jury trial.

At the outset of the trial, the following colloquy occurred :

The Court: “We will have the defendant step forward.

This is a bench or a jury trial?”

Defendant’s Attorney: “It will be a bench trial, Your Honor.”

The Court: “Your attorney has indicated that you wish to have this matter tried by the Court without a jury. Is that your wish?”.

The Defendant: “Yes.”

The Court: “You understand that you have a right to a jury trial, but if it is as your attorney says, you can waive that right and have the matter tried by the Court without a jury. Do you understand that?”

The Defendant: “Yes.”

The Court: “Would you indicate your wish by signing a jury waiver?”

Defendant’s Attorney: “The jury waiver has been signed.”

Every person accused of an offense has the right to a trial by jury unless he understandingly waives this right in open court. Ill Rev Stats 1967, c 38, § 103-6. The trial court has the duty to see that an accused’s election to waive a jury is expressly and understandingly made. People v. Clark, 30 Ill2d 216, 195 NE2d 631 (1964); People v. Denson, 110 Ill App2d 451, 249 NE2d 728 (1969). In the present case the defendant’s attorney informed the court that there would be a bench trial and the defendant’s affirmative responses to the court’s questions showed that he knew he had the right to be tried by a jury and that he understandingly waived that right.

The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.