author: MR. JUSTICE MURPHY

text:
    Bernard Guttman, Plaintiff-Appellant, v. Salvatore Salvaggio, Defendant-Appellee.
    Gen. No. 52,979.
    First District, First Division.
    December 8, 1969.

      Marshall Kaplan for Kaplan and Kaplan, of Chicago, for appellant.
    Carl Scub, of Chicago, for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a two-count complaint, plaintiff seeks damages allegedly caused by the defendant in giving medical treatment to the plaintiff without being licensed to practice medicine. Count I is based on negligence, and Count II is based on malice and seeks punitive damages. At the close of plaintiff’s evidence the trial court directed a verdict in favor of defendant on both counts. On appeal plaintiff contends that he presented a prima facie case sufficient to submit both counts to the jury.

In 1960 plaintiff, a certified public accountant, and his wife, a registered nurse, resided at 6739 South Clyde Avenue, Chicago. The defendant and his family lived on the third floor directly above plaintiff’s second-floor apartment. In 1944 the Department of Registration and Education of Illinois denied defendant’s application to practice medicine in Illinois.

Plaintiff testified that in May, 1959, defendant’s wife introduced plaintiff to defendant and said, “This is my husband, Doctor Salvaggio.” The name on the defendant’s doorbell was “Dr. Salvatore Salvaggio.” In August or September, 1960, plaintiff’s wife cut her finger and went up to the defendant’s apartment, and defendant bandaged her finger. Defendant was not paid for this, nor did he send a bill.

On Friday, December 9, 1960, plaintiff became ill. He had chills, he was coughing a lot, and he went to bed. He stayed home and in bed for the next three days, but his condition did not improve, and he had a temperature of 101°. On Tuesday, December 13, 1960, his condition was unchanged and, failing to reach his family doctor, he telephoned defendant and asked for an examination. Defendant had plaintiff strip to the waist and examined plaintiff with a stethoscope and made finger tappings in the same manner as by a medical doctor. Defendant also examined plaintiff’s throat, took his temperature and pulse, put a hypodermic needle in him, telling him he was giving him a shot of penicillin, and gave him some tablets to take every three hours. He diagnosed plaintiff’s condition as a cold. Plaintiff saw defendant professionally five more times in the next three days, during which he was examined by defendant, given capsules, an injection of streptomycin and a partially filled bottle of liquid described by defendant as an expectorant. On December 16, 1960, defendant examined plaintiff and informed plaintiff that he could leave his apartment to attend to such personal duties as going to the cleaners, getting a haircut, going to the dentist and to a convocation at the University of Chicago. Defendant testified that during all of this time his temperature remained at 101°. He offered to pay defendant for his services, but defendant did not submit a bill or request or receive any compensation from the plaintiff. They did not see each other after Friday, December 16,1960.

On December 18, 1960, because his condition persisted, plaintiff consulted with Dr. Noah H. Sloan. His condition was diagnosed as viral pneumonia, and he was hospitalized. He was in the hospital from December 18, 1960, until February 11,1961.

Defendant, called under section 60 of the Civil Practice Act, testified that he was not licensed to practice medicine in Illinois. He had received degrees from two unaccredited medical schools and was employed as a medical technician by the Elston Medical Center, where his duties were to take X rays, dress wounds and take the temperature of patients, and see that the mail got out properly. He substantially corroborated plaintiff’s testimony. He denied that he injected plaintiff with penicillin, and admitted giving plaintiff penicillin capsules and telling him when to take them. He did not tell plaintiff that he was not a qualified medical doctor because “he never asked me.” He saw plaintiff on only two occasions and never asked for any compensation for his services.

Dr. Sloan testified that he saw plaintiff at home on December 18, 1960. Plaintiff had pneumonia, and he sent him to a hospital. Dr. Sloan also testified as to his treatment of plaintiff and his charges for his services.

Dr. Sloan was asked three hypothetical questions by the plaintiff: one as to the kind of examination properly required to have been given plaintiff prior to his hospitalization, another as to the causal relation as to the treatment and the condition of ill-being, and a third as to whether the treatment of plaintiff might or could have aggravated or adversely affected the condition of the hypothetical man as found on December 13, 1960. Dr. Sloan answered the first question by saying that the treatment was not of the kind required of skilled doctors in Chicago in December, 1960; that he could not answer the causal connection question, and that there may or may not have been an aggravation of a preexisting condition.

On the causal connection question Dr. Sloan’s answers included: “It’s a nebulous sort of thing. . . . Well, I don’t think the alleged doctor produced the disease. . . . The natural history of pneumonia is a very difficult thing to know, because when a given point in time, you have pneumonia—but, what happened a day or six days before, or two months before, you don’t know.” In response to a question, “Might or could that previous ■treatment, prior to the treatment of December 18, adversely affect it—might or could it?”, Dr. Sloan said, “It may, or may not be. . . . I have no way of knowing.”

At the end of plaintiff’s case, and after hearing from both counsel, the court directed a verdict for defendant as to both counts. Thereafter the trial court denied a post-trial motion of plaintiff and incorporated in his ruling a four-page “ ‘Opinion of the Court’ in support of his ruling.”

At the outset, we think the basic guidelines to be used here are set forth in Gault v. Sideman, 42 Ill App2d 96, 191 NE2d 436 (1963), and Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967). In Gault, it is said (p 104):

“In 34 ILP Trial, section 133, it is stated that a motion to direct a verdict for defendant should be allowed if when the evidence is considered in its aspects most favorable to the plaintiff, together with all reasonable inferences to be drawn therefrom, there is a total failure of proof on one or more essential elements of the case. Lindroth v. Walgreen Co., 407 Ill 121, 130.”

In Pedrick, it is said (p 510):

“In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

Plaintiff contends that “there was more than enough evidence to support a verdict for the plaintiff let alone foreclose the possibility of the Court’s taking the case from the jury by the process of directing a verdict against the plaintiff.” Plaintiff asserts that the defendant, during the time he treated plaintiff, acted as a doctor, gave advice and orders like a doctor and responded repeatedly to being addressed as a doctor, and told plaintiff that his condition had improved so that he could get out of bed and attend to his usual affairs, when in fact the plaintiff was very ill and was diagnosed as having viral pneumonia less than twenty-four hours after what was tantamount to a release by the defendant. Plaintiff also notes that the Blinois Department of Registration and Education denied three applications of defendant to be licensed as a medical doctor, and that defendant did not deny certain allegations in plaintiff’s complaint concerning defendant’s treating various other persons, and allegations not specifically denied must be deemed admitted. People ex rel. Scott v. Kerner, 32 Ill2d 539, 208 NE2d 561 (1965).

Plaintiff further contends that the testimony of plaintiff, plus the admission of defendant in his pleadings and his testimony that he was not a licensed medical doctor, was enough to go to the jury, since this presented a violation of the Medical Practice Act and was prima facie evidence of negligence. (True & True Co. v. Woda, 201 Ill 315, 317, 66 NE 369 (1903); Smith v. Ohio Oil Co., 10 Ill App2d 67, 72, 134 NE2d 526 (1956).) Plaintiff notes that the purpose of the Medical Practice Act is to regulate the treatment of human ailments for the better protection of public health, and it is designed to require all persons treating people afflicted with disease to have a license, so that the public may be protected against the practice of treatment by inexperienced persons. Citations in support include Gula v. Gawel, 71 Ill App2d 174, 218 NE2d 42 (1966), and Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74 (1954). In Gula, it is said (p 182):

“The violation of an ordinance is prima facie evidence of negligence if the ordinance is designed for the protection of human life or property. If a plaintiff falls within the class of persons the ordinance is designed to protect, and if the violation is the proximate cause of the injury, the plaintiff has a cause of action.”

In Ney, it is said (pp 78-79):

“The violation of the statute is prima facie evidence of negligence under the prevailing rule of this State. . . . This in itself creates no liability. The injury must have a direct and proximate connection with the violation of the statute before liability will be held to exist. It is the existence of this cause and effect relationship which makes the negligence of the defendant actionable.”

Plaintiff asserts that the element of proximate cause was established by his testimony and by the testimony of Dr. Sloan, who testified that the treatment of plaintiff was not the kind that a skillful and careful physician in Chicago in December, 1960, would have used; that there may or may not have been a causal connection between the condition of ill-being and the treatment given, and that there could have been an affectation of the condition of ill-being by defendant’s treatment. Plaintiff states, “It was proper for Doctor Sloan to answer ‘May or may not’ in response to the ‘might or could’ hypothetical questions.” He noted that the courts of this State have indicated that “may or could” was proper. Authorities cited include People v. Rongetti, 338 Ill 56, 170 NE 14 (1929); Kimbrough v. Chicago City Ry. Co., 272 Ill 71, 111 NE 499 (1916), and Chicago Union Traction Co. v. Roberts, 229 Ill 481, 82 NE 401 (1907), where the court said (p 484):

“It is entirely immaterial whether the witness testified that the injury was the cause of the condition, or that the injury was sufficient to cause the condition or might have caused it. In any event, the testimony was merely the opinion of the witness, given, as such, upon a state of facts assumed to be true. It still remained for the jury to determine the facts, and the opinion was nevertheless an opinion only, whether it states what did cause the condition or what might cause it. The question may be asked in either form.”

Plaintiff contends that it was not necessary to prove that defendant caused plaintiff’s pneumonia, only that defendant aggravated “a preexisting condition of ill-being” of plaintiff. He notes that aggravation of a preexisting ailment is recognized as a separate element of compensable damages in Illinois, citing as authorities IPI instruction 30.03 and Behles v. Chicago Transit Authority, 346 Ill App 220, 104 NE2d 635 (1952).

Defendant argues that the directed verdict was properly granted because under the Pedrick test “no contrary verdict based on that evidence could ever stand.” He maintains that the trial court had a duty to direct a verdict for defendant in this case because plaintiff’s evidence did not establish the necessary element of causal connection between defendant’s treatment and the illness plaintiff suffered subsequently. Defendant contends that Dr. Sloan, plaintiff’s own medical expert, negated any causal connection between the alleged actions of the defendant and the injury complained of by plaintiff, and Dr. Sloan further said, “The natural history of pneumonia is a very difficult thing to know, because when a given point in time, you have pneumonia —but, what happened a day or six days before, or two months before, you don’t know.”

Cited authorities include Manion v. Brant Oil Co., 85 Ill App2d 129, 229 NE2d 171 (1967), and Scardina v. Colletti, 63 Ill App2d 481, 211 NE2d 762 (1965). In Manion, it is said (p 136):

“Our courts have held that there should be no recovery where there has been a failure to prove a causal connection between the injury and the event at issue. . . .
“Again the standards in decisions of our courts are that the causal connection between the injury sustained must not be contingent, speculative or merely possible, but that there must be such degree of probability as to amount to a reasonable certainty that such causal connection exists.”

In Scardina, it is said (p 487):

“The test by which a plaintiff’s evidence is judged when subjected to a motion for directed verdict is whether there is any evidence or reasonable inference arising from the evidence, tending to prove the cause of action alleged in the complaint. The court must decide if the evidence fails as a matter of law to support the complaint. It becomes such a question of law only where the evidence is such that all reasonable men would reach the same conclusion or where there is a total failure to prove one or more of the elements necessary to the cause of action. When the evidence is considered in its most favorable aspect to the plaintiff and there is a total failure to prove a necessary element of his ease, the motion for a directed verdict should be sustained.”

The trial judge, in his “Opinion of the Court,” included the following excerpts:

“Defendant could not be chargeable with a higher degree of responsibility than a physician. The standard for a physician is stated in GAULT v. SIDEMAN, 42 Ill App2d 96 (1963), wherein a directed verdict for defendant was sustained:
“ ‘In order for the plaintiff to prevail, he would have to show by affirmative evidence that the defendant was unskillful and negligent, and, second, that his want of skill and care caused the injury to the plaintiff. If either element is lacking in the proof, no case is presented for the consideration of the jury.’ (Also see other cases cited therein.)
“The court finds from the record, and in particular, from the testimony of Dr. Sloan, that the plaintiff did not prove any causal connection between treatment of the plaintiff by the defendant and the pneumonia subsequently contracted by the defendant. The court also finds that plaintiff failed to establish any aggravation of the condition of ill-being of the plaintiff by the defendant. . . .
“. . . Plaintiff also bases his motion for a new trial on Count II of the complaint, which alleges malice and fraud on the part of defendant. . . .
“Therefore, as to Count II, the court finds that the record fails to disclose any testimony which would establish the defendant’s treatment of plaintiff as fraudulent, malicious or injurious; hence there can be no recovery as to Count II.”

After examining this record, we conclude that plaintiff’s evidence lacked the necessary element that defendant’s want of skill or care caused injury to plaintiff or aggravated plaintiff’s existing condition. Dr. Sloan’s testimony negated any causal connection. He had no opinion as to whether defendant’s “want of skill and care” caused or aggravated the condition of plaintiff. Plaintiff’s proof as to causal connection had little probative value and lacked that degree of probability so as to amount to a reasonable certainty that such causal connection existed. This left the necessary element of causal connection “contingent, speculative or merely possible.” We find that it was proper for the trial court to direct a verdict for defendant on Count I. 85 Ill App2d 129, 229 NE2d 171 (1967).

Plaintiff further contends that the trial court erred in directing a verdict in favor of defendant on Count II, which included the following allegations:

“38. That the plaintiff is entitled to exemplary and punitive damages because of the fraudulent and malicious conduct of the defendant.
“39. That malice is the gist of the action herein, and should the plaintiff prevail herein a body attachment against defendant, SALVATORE SALVAGGIO, is sought.”

Plaintiff argues substantially that defendant committed an intentional tort, similar to a battery, and acted with malice so as to entitle plaintiff to punitive damages outside of any actual damages sustained. Plaintiff notes that if someone holds himself out as a doctor and treats people without their knowing his lack of qualifications, an intentional tort has been committed because presumably no consent to any treatment would have been given if these people were in fact so aware. Among the authorities cited are Williams v. Piontkowski, 337 Ill App 101, 84 NE2d 843 (1949); Matthei v. Wooley, 69 Ill App 654 (1897); and Church v. Adler, 350 Ill App 471, 113 NE2d 327 (1953).

As to Count II, defendant asserts that plaintiff has shifted his theory of recovery on appeal, and “he cannot be heard at this time to allege an act of a different nature from that which was alleged before the trial court and the direction in which he presented his case.” We agree.

On this point the record shows that Count II was based on malice and fraud, and plaintiff sought exemplary damages “because of the fraudulent and malicious conduct of the defendant,” and as to Count II the court found “that the record fails to disclose any testimony which would establish the defendant’s treatment of plaintiff as fraudulent, malicious or injurious.” As to Count II, we find the trial court properly directed a verdict in favor of defendant.

Under the pleadings and evidence in this case, we find the trial court properly directed a verdict for the defendant on both counts, and the judgment of the Circuit Court of Cook County in favor of defendant is affirmed.

Affirmed.

ADESKO, P. J. and BUBMAN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Phillip W. Reed (Impleaded), Defendant-Appellant.
    Gen. Nos. 53,162, 53,354. (Consolidated.) (Abstract of Decision.)
    First District, First Division.
    December 8, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by JUSTICE MURPHY. Not to be published in fulL


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ernest Benjamin, Defendant-Appellant.
    Gen. No. 53,212. (Abstract of Decision.)
    First District, First Division.
    December 8, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Nunzio Tisci, James N. Gramenos, 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 Patrick T. Driscoll, Jr., Assistant’s State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE MURPHY. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Chester Singletary, Defendant-Appellant.
    Gen. No. 53,381. (Abstract of Decision.)
    First District, First Division.
    December 8, 1969.
    Daniel Schuyler, Jr., of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by JUSTICE BURMAN. Not to be published in fulL


author: MR. PRESIDING JUSTICE ADESKO

text:
    Major Howard, Lucille Howard, and The Exchange National Bank of Chicago, as Trustee Under Trust No. 6262, Plaintiffs-Appellees, v. Reserve Insurance Company and Market Insurance Company, Defendants-Appellants, and Midland National Insurance Company, Defendant.
    Gen. No. 53,389.
    First District, First Division.
    December 8, 1969.

      Heineke, Conklin & Schrader, of Chicago (Paul H. Heineke, of counsel), for appellants.
    George C. Rabens, of Chicago, for appellees.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This is an appeal from a decree against the Reserve Insurance Company, Market Insurance Company and Midland National Insurance Company, on a claim for a fire loss in a building at 1523 S. Pulaski Road, Chicago, Illinois, owned by the plaintiffs. It was insured by three separate insurance policies issued by the defendants. The judgments were pro rata of the amounts of the applicable insurance in each defendants’ policy. The Midland National Insurance Company satisfied the judgment against it and is not a party to this appeal.

Each policy contained identical provisions which are involved in this appeal. They are designated in Exhibit A of the record under the subhead “Requirements in case loss occurs,” in lines 90 to 122 and provide:

“The insured shall give immediate written notice to this Company of any loss, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, furnish a complete inventory of the destroyed, damaged and undamaged property, showing in detail quantities, costs, actual cash value and amount of loss claimed; and within sixty days after the loss, unless such time is extended in writing by this Company, the insured shall render to this Company a proof of loss, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the following: the time and origin of the loss, the interest of the insured and of all others in the property, the actual cash value of each item thereof and the amount of loss thereto, all encumbrances thereon, all other contracts of insurance, whether valid or not, covering any of said property, any changes in the title, use, occupation, location, possession or exposures of said property since the issuing of this policy, by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of loss and whether or not it then stood on ground, and shall furnish a copy of all the descriptions and schedules in all policies and, if required, verified plans and specifications of any building, fixtures or machinery destroyed or damaged. The insured, as often as may be reasonably required, shall exhibit to any person designated by this Company all that remains of any property herein described, and submit to examinations under oath by any person named by this Company, and subscribe the same; and, as often as may be reasonably required, shall produce for examination all books of account, bills, invoices and other vouchers, or certified copies thereof if originals be lost, at such reasonable time and place as may be designated by this Company or its representative, and shall permit extracts and copies thereof to be made.”

The policies provide further under the subhead “Company’s options” in lines 141 to 147 as follows:

“It shall be optional with this Company to take all, or any part, of the property at the agreed or appraised value, and also to repair, rebuild or replace the property destroyed or damaged with other of like kind and quality within a reasonable time, on giving notice of its intention so to do within thirty days after the receipt of the proof of loss herein required.”

The appellant insurance companies maintain that the sole issue before this court is whether the plaintiffs breached the policy contracts by depriving the insurance companies of the opportunity to exercise the option reserved to them in the policies to repair or rebuild. The plaintiffs-appellees claim that this is an oversimplification of the issues here involved. Let us examine the agreed statement of facts submitted by the parties and their ideas of the issues.

The first occurred late on June 14, 1963, or early the following day. The insurance companies were notified on June 17, 1963. On June 25, 1963, John Hagensick, fire loss manager for the Reserve and Market Insurance Companies wrote the Exchange National Bank, which was the named insured, as follows:

“You have notified us of a fire at the captioned address which occurred June 14, 1963, under Market Insurance Company Policy No. 5425-1167 and Reserve Insurance Company Policy No. 1025-1509.
“Your attention is invited to the fact that we will insist upon compliance with the policy provisions which are set forth in lines 90 to 122 inclusive.
“We also wish to point out lines 141 to 147 of the insurance policy which state, ‘It shall be optional with this Company to take all, or any part of the property at the agreed or appraised value, and also to repair, rebuild or replace the property destroyed or damaged with other of like kind and quality within a reasonable time, on giving notice of its intention so to do within thirty days after the receipt of the proof of loss herein required.’
“The submission of this letter to you and the copies to the respective interested parties is not intended to be nor is it a waiver of any of the rights of the Reserve Insurance Company under their Policy No. 1025-1509 and the Market Insurance Company under their Policy No. 5425-1167.
“If we can assist you in the adjustment of this claim, please contact the writer at WE 9-7031.”

On June 28, 1963, John Hagensick as adjuster for Reserve and Market Insurance Companies and Mr. Hillman, as adjuster for the Midland National Insurance Company, having received certain information as to the amount of the loss, checked the damage caused by the fire, the claim presented by the public adjuster, and reached the opinion that the damage by fire was $6,493.

Joseph Risberg, a public adjuster representing the insured, testified that he examined the fire loss and prepared a claim. He met Wilbur Hillman, representing Midland National Insurance Company and John Hagensick, representing the appellants who checked the estimated claim. Hillman then said: “We’re going to get together and get up a set of figures for you.” Subsequently Risberg met Hillman who showed the figures he and Hagensick decided on. Risberg and Hillman met a few times again but did not agree and Hillman then told Risberg, “Go ahead and sue.”

In the meantime, on July 8, 1963, Louis Seiden, President of Central Fire Adjusting Bureau, also representing the insured, sent Reserve Insurance Company a bill for temporary electrical work, re: fire loss at 1523 S. Pulaski Road. On July 19, 1963, Louis Seiden wrote Hagensick as follows:

“Mr. John Hagensick, Adjuster for
Reserve Insurance Co.
“Dear Mr. Hagensick:
“As per your request for certification of employment between our firm and the beneficiary of Exchange National Bank, Trust #6262,
“We enclose a copy of signed agreement. Upon receipt of this we would appreciate an appointment to meet and agree upon a fair and equitable settlement for the damages sustained by fire at 1523 So. Pulaski Road.
“Thanking you for your kind cooperation, we are
“Central Fire Adjusting Bureau
“By Louis Seiden, Adjuster.”

On July 24, 1963, Reserve Insurance Company wrote Central Fire Adjusting Bureau as follows:

“We have your letter of July 19. The thermofax copy of the so-called agreement, which you enclosed with that letter is illegible. In addition, we are not willing to accept your statement that the person who signed it is the beneficiary of the Exchange National Bank as Trustee under Trust No. 6262.
“Without waiving but, in fact, insisting upon all of the rights of the Reserve Insurance Company under its policy No. 1025-1509 and the Market Insurance Company under its policy No. 5425-1167, we are unable to do anything further in this matter absent conclusive evidence of your right to speak for the assured.
“At this time we also would like to direct your attention to our letter of June 25, 1963, addressed to the Exchange National Bank, copies of which went to the Northern Illinois Title Company, Major Howard and Lucille Howard and The White Eagle Savings and Loan Association.
“Very truly yours,
“Reserve Insurance Company
“John C. Hagensick
“Fire Loss Manager.”

On July 18, 1963, Hagensick learned that the fire damage was being repaired by the insured. On August 13, 1963, proofs of loss were sent to Hagensick by Central Fire Adjusting Bureau showing loss and damage totalling $11,097.50. It was subsequently agreed by the parties that the loss and damage had been repaired for $6,500 of which $3,350 of repairs were made prior to the filing of the proofs of loss.

On October 1, 1963, Hagensick wrote the insureds as follows:

“Under date of August 13th a document apparently intended to be a proof of loss, signed by you, was received by the Reserve Insurance Company. This document is returned to you herewith.
“On June 25th we wrote you and we direct your attention to that letter. On July 24th we wrote Central Fire Adjusting Bureau.
“It is our opinion that the policy contract between you and the Reserve Insurance Company had been breached and the Reserve Insurance Company deprived of valuable rights under the policy. Therefore, it denies all liability for any loss and damage claimed to have been sustained by reason of a fire of June 15,1963.”

It appears that efforts were made by the parties to reach some agreement as to the fire loss. There is evidence that immediately after the fire some action had to be taken by the insured in order to protect the property from further damage. In this respect, the insured complied with the provisions of the policies. Thereafter negotiations were commenced while some of the repairs to the building were being made. The insurance companies were aware that these repairs were in progress and did not advise the insured that they should cease because the companies may exercise their option to repair or rebuild. We are mindful that the policies provided that the insurance companies had thirty days after receipt of proof of loss to exercise their option. Knowing however that the insured commenced some of the repairs which were necessary to avoid further loss and damage, the insurance companies did not say “stop further work.” We agree with the trial court’s statement:

“This letter (June 25, 1963) that was sent did not exercise the option, and following that letter, negotiations were going on with the adjusters for the companies with regard to amounts, and if the company had taken the position that they would exercise that option, even if that letter didn’t so indicate it, it was the duty of these adjusters to say, ‘why do we talk about money? We don’t care what you’re asking or what the price is. We’re going to do that ourselves.’ ”

It is difficult to draw a clear-cut line between the limits to which the insured can go in its duty to “protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order. . . It is equally difficult at times to determine whether it is more reasonable to complete temporary repairs or to do only so much, and stop at some point in anticipation of the insurance company’s right to exercise its option to rebuild or repair. All of the concerned parties should approach this situation fairly and honestly. If the insurance company demands its rights under the policy it should let this be known to the insured promptly and in a “plain, simple and straightforward manner.” On the other hand, the insured should not present an exaggerated and unreasonable proof of loss.

Counsel for the companies, in his oral argument before this court, stated that there is no law in Illinois on the provision found in fire insurance policies on the question of the insurance company’s option to repair, rebuild or replace. It is our opinion that Illinois law recognizes all valid provisions of standard fire insurance policies including the insurance company’s option to repair, rebuild or replace the property destroyed or damaged. We adopt the language of the Court of Appeals of Kentucky in German Ins. Co. v. Hazard Bank, 126 Ky 730, 104 SW 725 (1907):

“In insurance contracts, as in all other contracts, it is incumbent upon the parties to deal with each other in a plain, simple, and straightforward manner, and, where an election is to be exercised under a contract, notice should be made in such manner as to leave no doubt in the mind of the opposite party of an intention to exercise it,”

In the instant case, the letter of June 25, 1963, in our opinion is not a clear indication of the insurance company’s exercise of their option rights to repair, rebuild or replace. Said letter “insists” on compliance with the policy provisions in lines 90 to 122 relating to the duty of the insured to protect the property from further damage, but it “points out” lines 141 to 147, which give the insurer the options to repair, rebuild or replace. We agree with the insured that said letter did not contain a clear unambiguous and explicit exercise of the option.

Appellants ask this court to establish by its decision some guidelines to prevent future litigation. It is axiomatic that each legal controversy must be resolved within the framework of the facts and circumstances and the law therein involved. Basic guidelines may be helpful but they alone do not resolve legal controversies and possible future litigation. The above reference to the Kentucky Court of Appeals decision may be helpful.

In Home Mut. Ins. Co. v. Stewart, 105 Colo 516, 100 P2d 159 (1940), the Supreme Court of Colorado suggests five criteria to make the notice of election by insurance companies effective.

“(1) It must be made within a reasonable time after the damage or loss has occurred to the insured.
“ (2) It must be clear, positive, distinct and unambiguous.
“ (3) The repairs or replacements must be made within a reasonable time.
“ (4) It cannot be coupled with an offer of compromise or be made for the purpose of forcing a compromise, but it must be an election made with no alternative.
“(5) When the election is made, the repair or replacement must be suitable and adequate.”

We adopt these criteria, however, with this caution that most legal controversies present differences which must be decided individually within the legal and factual bounds therein contained.

Appellants direct our attention to the language contained in certain cases in support of their appeal. In Aetna Ins. Co. v. Platt, 40 Ill App 191 (1891), the insurance company notified the plaintiff of its intention to rebuild and repair and within eight days began such work. The question of the amount of damages was submitted to arbitrators. The Illinois Appellate Court reversed the judgment of the trial court holding that submission to arbitration to ascertain damage was not an election to pay the loss and a waiver of the right to rebuild or repair.

In Michigan Fire Repair Contractors Ass’n v. Pacific Nat. Fire Ins. Co., 362 Mich 552, 107 NW2d 811 (1961), the Michigan Supreme Court reversed the trial court holding that the insurance company properly exercised its option to repair.

In Beals v. Home Ins. Co., 36 Barb 614, affd 36 NY 522 (1867), the insurance company exercised its option to rebuild and notified the insured of its intention to do so. The insured refused to allow it. The action against the insurance company was nonsuited, which the New York Court of Appeals affirmed.

In Marblestone Co. v. Phoenix Assur. Co., Ltd., of London, 169 Minn 1, 210 NW 385 (1925), the insured commenced a sale of the damaged property in four days after the fire, disposing of 74 percent of the property before the insurance company was able to have the loss appraised. The Minnesota Supreme Court affirmed the trial court’s judgment for the insurance company.

None of these cases present the problem involved in the instant case. In none of them were negotiations in progress between the insured and the insurance companies prior to the insurance company’s exercise of its option to rebuild or repair.

The Gipps case (Gipps Brewing Corp. v. Central Manufacturers’ Mut. Ins. Co., 147 F2d 6 (1945)), referred to by appellant has no application. Gipps involves fraud on the part of the insured. There is no question of fraud in the instant case. In Gipps the court quotes from Oshkosh Match Works v. Manchester Fire Assur. Co., 92 Wis 510, 66 NW 525 (1896), in which the insured, after the loss, sold the property without the consent of the insurance company and before its adjuster had seen it. The Wisconsin Supreme Court reversed the trial court holding that the examination of an agent of the insurance company as to the loss, after proofs of loss have been submitted, is not a waiver of a breach of the policy by the insured, where it is expressly provided that such an examination shall not be a waiver. We do not disagree with this decision, but it has no application to the case under consideration herein.

Both parties to this appeal direct our attention to Elliot Five Cent Sav. Bank v. Commercial Union Assur. Co., 142 Mass 142, 7 NE 550 (1886) and to Davis v. Grand Rapids Fire Ins. Co., 15 Misc 263, 36 NYS 792 (1895). In the Elliot case immediate repairs were necessary to prevent further damage. The insurance company claimed, that the insured by entering and repairing the premises immediately after the fire, deprived the defendant of its right to elect, rebuild or repair. The Massachusetts Court said in affirming the judgment of the trial court for the insured:

“The fact that the plaintiff had commenced making repairs without notice, did not deprive the defendant of its right to notify the plaintiff of its intention to repair the premises. If the defendant had done so, and found that the insured was making repairs without any notice to it, both acting in good faith, it might be difficult to adjust fairly the rights of the parties. But there is nothing to show that the defendant ever entertained the intention to repair. It has never notified the insured of such intention, and it is clear that the acts of the plaintiff in making the necessary repairs, in good faith, ought not, upon any principles of law or justice, to defeat the right to recover its actual loss.”

In Davis there is no claim that the insurance company ever exercised the option, nor was there any evidence that any notice was given by the company. The New York Court of Appeals affirmed the trial court’s finding for the insured. The insurance policy gave the company the option to take any part of the articles insured at an appraised value within a reasonable time, on giving notice within 30 days after proof of loss of its intention to do so. The fire occurred on November 10, notice of the fire was served and received shortly thereafter. The goods were sold on November 29, and notice of sale was published three days before the sale, after notice to the defendant. The fact that plaintiff sold before the expiration of time did not at all affect the right of the defendant to demand compliance with the conditions. But before it could place plaintiff in default it must have itself taken steps to show that it wished to avail itself of the option. Not having done so, plaintiff was not in fault for selling.

For the reasons given above, the order of the trial court is affirmed.

Affirmed.

MURPHY and BURMAN, JJ., concur.


author: MR. JUSTICE BURMAN

text:
    In the Matter of the Estate of Raymond Piech, Incompetent. Continental Illinois National Bank and Trust Company of Chicago, Petitioner-Appellant, and Mary Piech, Appellant, v. Estate of Raymond Piech, Incompetent, Respondent-Appellee.
    Gen. No. 53,477.
    First District, First Division.
    December 8, 1969.
    Rehearing denied January 5, 1970.
    Jackson L. Boughner and Carl A. Gorski, of Chicago, Ransom & Ransom, of Oak Park, for appellants.
    Gregory A. Gelderman, of Chicago, guardian ad litem.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This action arises out of a petition by the Conservator of the Estate of Raymond Piech, an incompetent, to the Probate Division of the Circuit Court of Cook County for approval of a proposed property settlement agreement between the conservator and Mary Piech, Raymond Piech’s wife. The court denied the petition. The sole issue on appeal is whether the Circuit Court has power to approve a property settlement between the conservator of the estate of an incompetent and the incompetent’s wife.

Raymond and Mary Piech were married on February 12, 1950, and have one daughter who was born in 1951. The couple had marital difficulties which began in November, 1957. Mr. Piech suggested that they get a divorce, but Mrs. Piech objected. On several occasions he left home and stayed away for short periods of time.

In July, 1958, Raymond Piech was critically injured in an automobile accident. He has apparently lost his memory of the past and was declared incompetent on December 29, 1959. He has alternately been in and out of hospitals, rest homes, sanitariums; is unable to care for himself, both physically and emotionally, and is not aware of his rights or duties. Mr. Piech has been in the care of his parents since 1961, his father being the guardian of his person. His present actions toward his wife are such that it is extremely embarrassing for her to be in his presence, and she finds it impossible to even see him at this point. In the opinion of the psychiatrist, the incompetent “has some very uncoordinated, very low biological attachment to the physical person of Mrs. Piech as and when they are brought together without her ever being able to perform any behavior which is to his or her satisfaction.” Mrs. Piech has commenced an action in Nevada for a divorce on the grounds of three years’ separation, but has not carried this proceeding to its conclusion.

The estate of Raymond Piech has a value of $1,165,000, including $250,000 of life insurance. In July, 1957, before the automobile accident, Raymond Piech executed a Will In this Will, Mary Piech, the wife of the testator, is given the household effects, automobiles and the other goods and chattels of the testator. The Will also creates two trusts. The corpus of the first trust consists of one-half of the estate, and the corpus of the second trust consists of the residuary estate. The wife of the testator is to receive all the income from the first trust for life and any amount of the principal as may be necessary for her support and maintenance. Upon the death of the wife, the principal shall be distributed according to the appointment made by the will of the wife. The second trust makes the same provisions for use of the income and principal for the support of the wife as the first. Upon the death of the wife, the income from the second trust is to go to the children of the testator with distributions of the corpus upon each child reaching a certain age.

The property settlement agreement proposed by the conservator and agreed to by the parents of the incompetent would require that instead of what Mary Piech would take under the Will she be paid the equivalent of one-third of the value of the incompetent’s estate. Mrs. Piech would release all rights which now exist or which may arise out of the marital relationship. She would also agree to pay any liability for Federal Gift taxes arising out of the consummation of the agreement.

Section 122 of the Probate Act (Ill Rev Stats 1967, c 3, § 122) provides:

The conservator of the estate under the direction of the court shall have the care, management and investment of the ward’s estate, and under the direction of the court he shall manage the estate of his ward frugally and shall apply the income and profits thereof so far as they may be necessary for the comfort and suitable support and education of the ward, his children, including children by adoption, and persons related by blood or marriage who are dependent upon, or entitled to support from him. When authorized so to do by the court for the comfort and suitable support and education of the ward, his children, including children by adoption, and persons related by blood or marriage who are dependent upon, or entitled to support from him, the conservator may make disbursement of his ward’s funds directly to the ward or persons claiming through him or to the person to whom the ward, or persons claiming through him, or the ward’s estate may become indebted, and be entitled to credit therefor in his accounts the same as if he had himself applied the sums for those purposes. If the income and the profits from the estate are insufficient for these purposes the conservator may use such portion of the corpus of the estate as the court orders from time to time. . . .

No claim was made either in the petition or at the trial that the income from the estate is insufficient to provide for the comfort and suitable support of the wife of the ward. Since, other than for the use of the ward, that is the only purpose for which the conservator is empowered by the statute to use the income or the corpus of the estate of the incompetent, the denial of the petition by the Circuit Court must be affirmed unless the court has power outside of the statute to grant the petition.

Under the common law of England, the power of control over the persons and property of incompetents belonged to the king as parens patriae and was exercised by him through the lord chancellor. The lord chancellor had this authority as the representative of the crown and not in his character of chancellor or by virtue of the general powers of the chancery court. In the United States the states succeeded to the power of parens patriae which is exercised by the courts only through the authority of legislative enactment and is not included in their general equity powers. See the discussion in Cowdery v. Northern Trust Co., 321 Ill App 243, 256, 53 NE2d 43, 49, and cases cited therein.

This general principle was decisive in People ex rel. Pauling v. Misevic, 32 Ill2d 11, 203 NE2d 393, cert denied 380 US 963, which involved a plea even more deserving of sympathy than the one in the present case. In Misevic the brother of the relator petitioned for a writ of habeas corpus in his behalf. The relator had been confined in a state hospital for ten years since he had been found not guilty by reason of insanity of attempted murder. During his confinement he had become blind. The petition alleged that the relator was no longer insane and prayed for his release from confinement. However, relator’s counsel admitted that relator was afflicted with schizophrenia, a form of insanity from which one never fully recovers. He could, therefore, not allege that relator was “entirely and permanently” recovered as. the statute required. Although a writ had issued, it was quashed by the trial court, and the relator remanded to custody. The Supreme Court affirmed, holding that, the equitable considerations did not allow the judiciary to act outside the authority granted by the legislature, which has sole power over the persons and property of the insane. Although the effects of the statute were harsh, they could only be changed by legislative action, not by judicial construction. The same is a fortiori true of the harsh effects of the statute involved in the instant civil case.

The appellants argue, however, that similar provision to that requested in this case has been made in Illinois for the dependents of an incompetent out of the principal of his estate and that such a power is an inherent power of the courts. An examination of the cases relied upon will demonstrate that this contention is without foundation.

It was stated by the Supreme Court in Lewis v. Hill, 387 Ill 542, at 546, 56 NE2d 619, at 621, that:

The governing principle in the management of property belonging to a person of unsound mind is the furtherance of his interest .... The court considers only the situation of the ward and does nothing wantonly or unnecessarily to alter the ward’s property, but on the contrary takes care, for his sake, that if he recovers he shall find his estate as nearly as possible in the same condition as he left it. (Citing authorities.)

In Stokes v. Stokes, 240 Ill 330, 88 NE 829, cited by the appellants, the court did uphold a settlement between the conservator and the wife of the incompetent. However, this was in substitution of an antenuptial agreement which the husband and wife had entered into when the husband was competent. The antenuptial agreement in Stokes was a binding contract and the settlement was in lieu of that agreement while in the present case the wife seeks to make a settlement agreement in lieu of her taking under her husband’s will which is not binding, but is revocable until his death. It should also be noted that in Stokes the wife took $1,650 and a horse instead of the $2,000 she would have been entitled to under the antenuptial contract when her husband, about eighty-five at the time of the settlement agreement, died. This is quite different from taking in place . of a revocable bequest one-third of the estate of a forty-three-year old man who- might become competent in the many years of expected life which remain to him.

In Newman v. Newman, 42 Ill App2d 203, 191 NE2d 614, also relied on by the appellants, the appellee had been the defendant in a successful divorce action brought by her husband. Shortly after that action she was declared to be incompetent. Several months later her next friend, in lieu of her conservator, brought an action to vacate the decree of divorce. This action was settled with a modification of the original decree of divorce resulting in an increased property settlement in lieu of alimony for the incompetent. After she was again competent, the appellee petitioned to have the decree of divorce modified further to require her former husband to pay her an increased sum per week. This request was ordered by the Probate Court. On appeal this court reversed the part of the award which ordered permanent alimony. We held that a choice between alimony or a property settlement involved no element of personal discretion on the part of an incompetent and could as well be exercised by the court having jurisdiction over the incompetent’s estate. The primary consideration in Newman was that the property settlement agreed to by the court had been in the best interest of the incompetent. It should also be pointed out that the decision in Newman sustained a payment to the incompetent and did not involve a disposition of property belonging to the incompetent which is what is sought in the present case.

The cases which the appellants rely on from other jurisdictions only show that those jurisdictions recognize greater power in the courts in this field than Illinois and several other jurisdictions traditionally have. Nonnast v. Northern Trust Co., 374 Ill 248, 29 NE2d 251, dealt with the duty of a conservator to account and the necessity of claims being filed and proven before paid. It does not aid the appellants. The power of Illinois courts over guardianships has traditionally been broader and is not analogous to the power of the judiciary over the persons and property of incompetents. In re Guardianship of Smythe, 65 Ill App2d 431, 437, 213 NE2d 609, 613.

Since the legislature has sole power over the persons and property of incompetents and has not granted to the judiciary the authority to approve a property settlement such as the one proposed in this case, the judgment of the Circuit Court must be affirmed.

Judgment affirmed.

MURPHY and McNAMARA, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Jordan, Defendant-Appellant.
    Gen. No. 53,957. (Abstract of Decision.)
    First District, First Division.
    December 8, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by PRESIDING JUSTICE ADESKO. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie M. Craig, Defendant-Appellant.
    Gen. No. 52,957. (Abstract of Decision.)
    First District, Second Division.
    December 9, 1969.
    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, Assistant State’s Attorney, and Kenneth L. Gillis, Special Assistant State’s Attorney, of counsel), for appellee.
   Opinion by JUSTICE BURKE. Not to be published in full


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Everett, Defendant-Appellant.
    Gen. No. 53,800.
    First District, Second Division.
    December 9, 1969.

      Geter & Geter, of Chicago (Howard D. Geter, Sr. and Howard D. Geter, Jr., of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney and Kenneth L. Gillis, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of the crime of receiving stolen property and was sentenced to a term of six months in the House of Correction. He appeals.

Hazel Porter testified that her home on South Sangamon Street in Chicago had been burglarized and that two television sets were stolen therefrom. She further testified that she thereafter saw one of the sets in the window of the defendant’s television repair shop at 1144 West 69th Street in Chicago, which she subsequently identified as her property.

Detective Phillip Pignato testified that he had been assigned to investigate the Porter burglary and that he located the television set in question in the window of the defendant’s shop. The witness testified that he questioned defendant concerning the set and was informed by the defendant that he knew nothing of its acquisition in that his partner took the set into the shop for repairs. Defendant told the detective that his partner was not in the shop at the time and that he was not certain when his partner would return. The witness further testified that defendant told him that he did not know his partner’s name, and that he did not know where his partner lived nor where he could be contacted. Officer Pignato stated that when he asked the defendant whether he knew the television set had been stolen, the defendant replied that he did not.

Defendant testified that he was a partner in the television repair shop, that his partner’s name was “David Poindexter,” and that he gave that name to the police at the time he was questioned concerning the television set. He further testified that he did not tell the police where Poindexter lived because he did not know. Defendant related that he was not present when Poindexter took the set into the shop for repairs and stated that he first learned that the set was stolen when he was so informed by the police.

Defendant testified on cross-examination that he repaired a broken antenna on the set and placed the set in the window of the shop to be picked up by the customer. He stated that there was no customer claim check connected with the set and that if the customer had come in to claim the set, he would have had to wait for Poindexter.

Defendant was then questioned as to the identity of Poindexter and stated that he and Poindexter had been partners for two years. He first stated that they had no written partnership agreement, but later testified that he did have “some papers to show this.” He further testified that Poindexter was usually in the shop “from morning to night,” but that in order to reach him if something urgent arose, “sometimes I can reach him by calling a number that I know, that I may reach him by, but at all times I can’t be certain.” Defendant further described Poindexter as a “funny type of person. He doesn’t stay at any one particular place any length of time. He is constantly moving.”

The trial judge, on redirect examination of the defendant, also inquired as to Poindexter. Defendant stated that he had spoken to Poindexter since the instant complaint against him was filed, that he told Poindexter of the charge in this regard, and that he was not certain whether Poindexter knew he was in court on the day of the trial. Defendant stated in response to the judge’s questioning that Poindexter was “possibly at the store now,” whereupon the trial judge inquired of the defendant whether he desired a continuance in order to bring Poindexter into court. Defendant declined the court’s offer and rested his case.

Defendant first contends that the People failed to prove the corpus delicti of the crime, for the reasons that there was no evidence as to when the Porter home had been burglarized, that there was no evidence that unknown persons were responsible for the theft of the television set, that there was no evidence as to when the set was found on the defendant’s premises, and that there was no evidence that the defendant received the stolen property. He also contends that he was not proved guilty beyond a reasonable doubt.

The People’s evidence showed that the television set found in the window of the defendant’s shop was stolen from the Porter home, that the defendant denied knowledge that the set was stolen, and that the defendant said that the set was taken into the shop by his partner, whose address and whereabouts he did not know. The defendant’s testimony was that he had no knowledge that the set was stolen and that the set had been taken into the shop by his partner, Poindexter, whose activities and whereabouts remained a mystery to the defendant.

Guilty knowledge may be proven by means of circumstantial evidence. As stated in People v. Mulford, 385 Ill 48, 52 NE2d 149, at page 56:

“The guilty knowledge which is an essential element of the crime of receiving stolen property is rarely susceptible of direct and positive proof. It may be inferred from all surrounding facts and circumstances involved in the transaction, including the acts and declarations of the accused concerning the same; (People v. Boneau, 327 Ill 194;) and it is presumed that whatever would convey knowledge or induce belief in the mind of a reasonable person that property was stolen would, in the absence of countervailing evidence, be sufficient to apprise the accused of the like fact or induce in his mind the like impression and belief. (People v. Rife, 382 Ill 588; State of Connecticut v. Heno, 119 Conn 29, 174 Atl 181, 94 ALR 696.)”

See also People v. Grodkiewicz, 16 Ill2d 192, 197, 157 NE2d 16.

In the instant case, the circumstances from which it could reasonably be concluded that defendant had knowledge that the television set was stolen, stem not only from the evidence of the People but also from the testimony of the defendant himself. A defendant is not required to take the stand but when he does he runs the risk of telling an incredible story.

Defendant’s testimony concerning his alleged partner, Poindexter, and Poindexter’s unorthodox mannerisms ; the manner in which their partnership was run; the circumstances under which the' television set appeared on the defendant’s premises; the fact that no customer claim receipt was issued when the set was allegedly brought in for repairs; the fact that the set, after having allegedly been repaired by the defendant, was placed in the shop window; and the fact that Poindexter was never brought in as a witness, although he had allegedly been defendant’s partner for a period of two years and knew that the defendant was in difficulty in this regard, constitutes sufficient evidence from which the trier of fact could conclude that the defendant had knowledge that the set was stolen and that he received the set with such knowledge. People v. Nitti, 8 Ill2d 136, 133 NE2d 16; People v. Ray, 80 Ill App2d 310, 316, 225 NE2d 467. The fact that there was no evidence adduced as to when the set was stolen from the Porter home or when it was located on the defendant’s premises, worked no prejudice to the defendant. It was uncontested that the set was, in fact, stolen, and defendant admitted that it was found on his premises.

It is next contended that the defendant was denied a fair and impartial trial because the trial judge took over the prosecution of the case, called the defendant a “liar,” and found the defendant guilty because “he was a liar and failed to produce Poindexter as a witness.”

It should be noted that this was a bench trial and the presumption obtains that the trial judge will consider only competent evidence. People v. Robinson, 30 Ill2d 437, 197 NE2d 45. The asking of questions by the trial judge will be considered prejudicial in a jury case where it indicates to the jury how the judge feels about the defendant’s story. People v. Moriarity, 33 Ill2d 606, 213 NE2d 516.

The trial judge here questioned the defendant on redirect examination on two matters, first, with regard to when it came to his attention that the television set was stolen, and second, with regard to the whereabouts of Poindexter and whether Poindexter knew that the defendant was in court that day. After the judge asked several questions he offered defendant an opportunity to bring Poindexter into court on his behalf, which offer the defendant refused. Questioning by the trial judge rests in the sound discretion of the judge and may be done to reach the truth or to clarify material matters. People v. Palmer, 27 Ill2d 811, 314-315, 189 NE2d 265. We find no error in this regard.

The record reveals that after the finding of guilty was made, and during the hearing in aggravation and mitigation, the trial judge stated that the defendant was a liar and was perjuring himself. The only matter which this statement could have had an effect on at this stage of the proceeding was the sentence to be imposed; the sentence is clearly not excessive and is within the limits set by the statute. (See Ill Rev Stats 1967, c 38, par 16-1.) Further, there is no evidence in the record that the defendant was found guilty because he failed to produce Poindexter as a witness, or that the defendant’s counsel was ignored and insulted by the trial judge, as defendant here contends.

Defendant finally argues that the trial court erred in denying his oral post-trial motions and in further refusing to allow him time to file written motions. After the court denied defendant’s oral motions, defense counsel stated that he would like to have time to put his motions into writing, to which the judge replied, “You may do that. All motions denied.” Nonetheless, oral post-trial motions were made, without objection, thereby opening up the entire record to review on appeal. People v. Prohaska, 8 Ill2d 579, 582-583, 134 NE2d 799.

The judgment is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE ENGLISH

text:
    John R. Hosty, Plaintiff-Appellee, Cross-Appellant, v. Robert J. Kroupa, Defendant-Appellant, Cross-Appellee.
    Gen. No. 52,276.
    First District, Fourth Division.
    December 10, 1969.
    L. Louis Karton & Raymond Roffi, of Chicago (L. Louis Karton, of counsel), for appellant.
    John J. Casey, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This action arises under an alleged option contract between plaintiff and defendant for the purchase by plaintiff of real estate owned in joint tenancy by defendant and his wife, Catherine. The trial court found that a binding contract existed between plaintiff and defendant which defendant refused to honor, and assessed damages in the amount of $6,250. The trial court’s order further provided that “defendant be directed not to convey any interest he has in any real estate or personal property he holds as holder of beneficial interest in a land trust until further order of Court.” Defendant seeks reversal of the judgment on the ground that his wife was a necessary party to the contract and she never signed it. Plaintiff, in his cross-appeal, asks for additional damages.

Plaintiff testified that in the Summer of 1965 he observed a for-rent sign on the property located at 801-809 South Boulevard, Oak Park, and shortly thereafter contacted Baird & Warner, Inc. (hereinafter referred to as Baird), building managers of the property, concerning the rental. He was acting at that time on behalf of Sincere & Company, by whom he was employed as a stockbroker. In September, 1965, plaintiff, then acting on his own behalf, began negotiating with Baird’s sales manager, Eugene Majewski, for purchase of that same property and another located nearby.

It is undisputed that Majewski drew up the option contract (which was introduced into evidence) for a purchase price of $75,000. The body of the contract contained the names Robert Kroupa and Catherine Kroupa in two separate clauses. It also indicated payment of the option consideration to “them,” and that “Sellers” would pay a broker’s commission. Robert J. Kroupa signed the document, but Catherine never did.

Plaintiff testified that he gave Majewski a $50 check, payable to Baird, as consideration for the option, and that he exercised his privilege of purchase under the option by letter dated October 18, 1965. He first learned of defendant’s refusal to convey on October 29, 1965, at defendant’s house when Mrs. Kroupa was present.

Plaintiff testified further that he had no idea where the ownership of the property lay, although he did see the names Robert and Catherine Kroupa clearly on the face of the option contract. He also realized that the $75,000 price contained in the contract was for the entire ownership of the property. Plaintiff was never shown or advised of the existence of any contract between the Kroupas and Baird with respect to the sale of this property. There was no for-sale sign on the building, but he assumed that Baird was not only the rental agent but also the sales agent for the property. On September 17, 1965, Majewski had sent him a letter stating that “Enclosed is a true copy of the option I now hold on the property. ... I am also holding your check in the amount of fifty dollars ($50.00) as consideration for his option.” Plaintiff explained that this letter was a partial basis for his belief that he had an option to buy, “despite the fact that the two main parties had not signed the option.”

Continuing with plaintiff’s testimony, the first time that he had physical possession of the option contract with Robert Kroupa’s signature was in April, 1966. At that time, plaintiff had requested and received from Baird both the original signed copy of the option agreement and the $50 check which had been given as consideration.

Richard Cisek, supervisor of the sales-closing department of Baird, testified that he examined the company’s files and found no agency contract between defendant and Baird authorizing the latter to sell defendant’s property.

Eugene Majewski testified to the same effect as Cisek. Majewski also stated that he drew the option contract, with the names of both Robert and Catherine Kroupa in the body of the document. The unsigned option was then given to plaintiff to have his attorney look at it. He assumed that plaintiff’s attorney had looked at it because plaintiff returned it with a check for $50. Majewski then obtained defendant’s signature on the contract, but Mrs. Kroupa was in Europe and he never got her signature. He testified that after defendant’s signature was on the document, he believes he called plaintiff and told him that they were waiting until Mrs. Kroupa returned from a vacation to get her signature. Majewski was aware when he prepared the contract that ownership of the property was in joint tenancy. He was also under the impression that the option contract was intended to bear the signatures of both Kroupas. That was the reason he included both names in the contract. Both attorneys saw the contract and approved it. It was his understanding that he had to have the document executed by both Mr. and Mrs. Kroupa. Mrs. Kroupa refused to sign. The $50 consideration check was not given to defendant, but was kept at Baird’s office.

Catherine Kroupa, defendant’s wife, testified that she did not sign any option to sell the subject property which she owns with her husband in joint tenancy. She had signed a management agreement with Baird, but never authorized Baird to sell the property.

- Defendant reiterated his wife’s testimony. He signed' the option contract at Baird’s office and noticed that his wife’s name was also on the contract. His attorney saw the contract before he did. Mrs. Kroupa did not at any time sign the contract. Plaintiff came to defendant’s house several weeks after defendant had signed the contract and stated that he wanted to exercise his option. Mrs. Kroupa was there at the time and she told plaintiff that she did not care to sell. Defendant had previously asked Majewski whether the option contract was binding without both signatures, and had told him that his wife couldn’t sign the contract to make it legal until she returned from her vacation in Ireland.

James Chrastka, defendant’s attorney, testified that he had represented the Kroupas for about five years, and he had looked over the option contract. He advised. defendant that “unless [Mrs. Kroupa] signs it, it is not operable.” He told defendant to sign the contract, making certain that Baird would hold onto it “making it conditional on them.” In his judgment, the legal consequences of Majewski’s not submitting the contract to plaintiff would be to prevent the execution or completion of the option.

Several real estate appraisers testified as to the value of the subject properties.

The primary dispute concerning the option contract centers on the effect of Catherine Kroupa’s refusal to affix her signature to the option contract. It is undisputed that both plaintiff and defendant signed the contract and that plaintiff, after paying $50 as consideration, indicated by letter that he desired to exercise his option. Both parties were aware that Catherine Kroupa’s name appeared as one of the sellers of the property. Plaintiff contends the absence of her signature and the fact that she was a joint tenant of the property does not nullify defendant’s contractual obligation. Defendant, on the other hand, argues that he did not intend to convey any property without the assent by signature of his wife and the fact that he alone signed, coupled with the nondelivery of the document, indicated that no binding contractual obligation with plaintiff had been created.

Plaintiff testified that he did not know that the Kroupas owned the property in joint tenancy, although he was aware that both names were on the contract. At one point in his testimony, he stated that a letter to him from Baird acknowledging receipt of his $50 consideration payment led him to believe that he had an option to buy, despite the fact that the “two main parties had not signed the option.” He was also cognizant that the $75,000 purchase price was for complete ownership of the property. Baird’s sales manager, Majewski, testified that after getting defendant’s signature on the contract, he believes he called plaintiff to tell him that they were waiting until Catherine Kroupa returned to get her signature.

We can infer from this evidence that the plaintiff knew he was dealing with both owners for the entire property; that he was not misled as to the ownership of the property. Under these circumstances, without the signature of both owners, there can be no contract and, likewise, no breach to support an action for damages. See Madia v. Collins, 408 Ill 358, 362, 97 NE2d 313. Where only one of two or more co-owners contracts to sell, there can be no action for specific performance if the contracting parties contemplate the sale of all interest in the property. See Dineff v. Wernecke, 27 Ill2d 476, 482, 190 NE2d 308; Madia v. Collins, supra; Spadoni v. Frigo, 307 Ill 32, 138 NE 226. The rationale of these cases is analogous to the instant action for damages. We can find no evidence indicating that plaintiff treated defendant as a single contracting entity. The testimony reveals that plaintiff at all times was dealing with the Kroupas in the expectation that both would sign the option agreement as sellers. This action for damages therefore cannot lie, because the contract remained incomplete and there was never a binding contractual obligation entered into singly by defendant.

In addition to the expectation of the parties that both defendant and his wife were to sign the contract before a contractual obligation was to attach, the parties did not expect the contract to be delivered (which it was not), unless executed by Mrs. Kroupa. In support of his contention that the contract should be held binding on defendant to the extent of the interest he is able to convey, plaintiff has cited cases which are nugatory in light of the above facts in the instant case. In both Heckmann v. Detlaff, 288 Ill 505, 119 NE 639, and Ennis v. Johnson, 3 Ill2d 383, 121 NE2d 480, the court found that a contract of sale executed by less than all the parties in interest was enforceable against those executing it, but each of these cases carefully excluded the situation where the contract was conditioned upon the consent of all interested parties. In our view of the evidence, the case at bar falls clearly within this exception.

In defendant’s other citation, Cities Service Oil Co. v. Viering, 404 Ill 538, 89 NE2d 392, the subject contract described the lessors, a husband and wife, as “Lessor, jointly and severally.” The court held that while only the husband had signed the lease, it was binding upon him as his several and separate contract. The difference in the language of that contract is so distinct from that employed in the contract before this court as to be obvious.

The judgment of the Circuit Court is reversed with judgment here for defendant. Plaintiff’s cross-appeal for additional damages necessarily falls.

Reversed.

McNAMARA and STAMOS, JJ., concur.


author: MR. JUSTICE LEIGHTON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clarence Wallace, Defendant-Appellant.
    Gen. No. 53,525.
    First District, Fourth Division.
    December 10, 1969.

      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 (Robert Kelty, Special Assistant State’s Attorney, and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.

       See Callaghan’s Illinois Digest, same topic and section number*

       Defendant, acting pro se, filed a motion praying for entry of an order directing his counsel to amend his brief, or in the alternative, that we rule on the contentions he lists in his motion so that the doctrine of waiver will not apply to any post-conviction remedy he may seek. We allowed defendant’s motion to stand as an additional brief. We have considered each additional contention and find them without merit.

   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

Defendant was charged with attempt to murder, unlawful use of a weapon, and knowingly carrying concealed on his person a pistol within five years of his release from a penitentiary. After a nonjury trial, he was found guilty of attempt to murder. The court sentenced defendant to serve eight to twenty years.

Defendant appeals. His brief presented two issues for review: (a) whether the trial court correctly accepted defendant’s waiver of trial by jury; and (b) whether the sentence, if it is valid, is too severe and should be reduced. During oral argument, defendant’s counsel conceded that recent decisions of this court made the jury waiver contention untenable. Accordingly, counsel asked and we allowed withdrawal of this point. Therefore, the sole issue in this appeal is whether the sentence is too severe.

On February 16, 1968, at about 2:00 p. m., William Callaghan, a Chicago policeman, in uniform and in a squad car, was driving north on Normal Boulevard. Near West 60th Street, Callaghan saw a green 1963 Chevrolet driving east with two occupants, one a driver and the other a front seat passenger, whose youthful appearance attracted his attention. He decided to curb the vehicle. Using his blue flasher, Callaghan stopped the Chevrolet approximately four feet in front of his squad car, at or near 315 West 60th Street.

As Callaghan left his vehicle, he saw defendant, the driver of the Chevrolet, get out. He heard the occupant say to the driver, “Be cool, man. Be cool.” The driver replied, “No. We can’t take a chance.” Callaghan then saw that defendant had a gun. Callaghan ran to the other side of the street, keeping defendant in his view, and took refuge behind a tree. Defendant drew his gun and fired at Callaghan. Callaghan returned the fire. Defendant fired four or five shots; Callaghan, six. After the gunfire, defendant and the occupant ran into the building at 315 West 60th Street. A short time later, defendant came out and ran behind the building into an alley. As he did, he stopped and fired one more shot at Callaghan. The car in which defendant was riding was later taken to a police auto pound.

Four days later, on February 20, Callaghan in the company of two fellow policemen, went to a pool hall. There he saw defendant. Callaghan approached him, told him he was under arrest. When he asked why, he was told he was under arrest for attempting to shoot Callaghan. Defendant resisted the arrest, causing Callaghan to break a hand. Defendant was subdued and taken into custody. He was charged and brought to trial.

To support its allegations under counts I and II of the indictment, the State called Callaghan and a fellow officer. For the defense, defendant and his brother testified. To support its allegations under count III, the State called an assistant record clerk at Stateville branch of the penitentiary in Joliet. He testified that defendant was received at Stateville on May 16, 1961, to begin a five to ten year sentence for unlawful possession of narcotics. He was paroled on March 1, 1965. On December 24, 1965, he was returned a parole violator. On November 10, 1966, defendant again was released on parole and again returned a violator on May 9,1967. Then, on completion of his sentence, defendant was released from the penitentiary on January 15,1968.

After hearing witnesses and arguments of counsel, the trial judge reviewed the evidence and then found defendant guilty of attempt to murder Callaghan. Hearing in aggravation and mitigation followed. The prosecution showed that in December 1956, defendant was sentenced to serve three months for petty larceny. In October 1957, defendant was sentenced to serve three months for assault with a deadly weapon. In February 1961, defendant was sentenced to serve five to ten years for unlawful possession of narcotics. The trial judge heard counsel on the question of punishment. Defendant’s counsel spoke, calling attention to the views of modern penology on the relation between long sentences and rehabilitation. After listening to counsel, the court sentenced defendant to serve a term of eight to twenty years.

Defendant contends this sentence is too severe. He argues that this case is a proper one for exercise of the power we have to reduce sentences given us by Supreme Court Rule 615(b) (4), Ill Rev Stats 1967, c 110A, § 615 (b) (4). The State, on the other hand, argues that the sentence imposed was proper because of the heinousness of the crime of which defendant was convicted, and because a long criminal record indicated defendant was a hardened criminal.

People v. Ramey, 115 Ill App2d 431, 253 NE2d 688, is a recent occasion when we passed on the contention defendant makes before us. We said then that reviewing court power to reduce a sentence should be exercised with caution and circumspection. The primary purpose of our authority to reduce a sentence is to prevent arbitrary or oppressive treatment of offenders and to provide penalties which are both proportionate to the circumstances of the case, and which recognize differences in rehabilitation potential of offenders. When a sentence is imposed within the limits prescribed by statute, we. will not disturb it on review unless it is a departure from fundamental law, its spirit and purpose; or, the punishment is manifestly in excess of the provisions of section 11 of Article II of the Illinois Constitution requiring that all penalties be proportioned to the nature of the offense. The doctrines we applied in Ramey were supported by a long line of Illinois cases.

In People v. Hobbs, 56 Ill App2d 93, 205 NE2d 503, it was contended, as does the defendant here, that the sentence imposed was too severe for the nature of the crime. We said that “ [T] he court, in fixing punishment, should weigh and consider all pertinent matters, including the nature of the offense, the attending circumstances, the character and propensities of the offender, and the chances of his reform.” 56 Ill App2d 93, at 98. When defendant’s argument for modification of sentence is scrutinized with these principles in mind, the conclusion we reach is that his case is not persuasive.

Defendant precipitated an attack on a uniformed policeman as he alighted from a squad car. The episode endangered a densely populated section in the City of Chicago. To use a contemporary colloquialism, defendant started a shoot-out. The fact that no one was injured does not detract from the heinousness of the offense. When all pertinent matters are considered, defendant does not present a case that will justify exercise of our power to modify the sentence imposed by the trial court. People v. Brown, 60 Ill App2d 447, 208 NE2d 629; People v. Garrison, 108 Ill App2d 77, 246 NE2d 465.

Judgment affirmed.

Judgment affirmed.

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


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clarence Nelson, Defendant-Appellant.
    Gen. No. 53,958.
    First District, Third Division.
    December 11, 1969.

      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. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a nonjury trial defendant was found guilty of the theft of an automobile valued in excess of $150. The theft is alleged to have occurred on October 4, 1967. After a hearing in aggravation and mitigation he was sentenced to serve two to six years in the Illinois State Penitentiary. The only issue raised on appeal is whether or not the State proved the value of the car to be in excess of $150. The facts relevant to that contention follow.

The only evidence which appears in the record relating to the value of the car was provided by the testimony of the Rev. Frank Johnson, owner of the stolen vehicle. He testified on direct examination that the automobile in question was a 1961 Pontiac Catalina, that he had owned the car for about two years and that he bought it for $1,358. He further testified that the then present value of the automobile was “around $800 or $900.” There was no objection to that testimony and defendant did not raise that point in his motion for a new trial.

Theft of property valued in excess of $150 is a felony which subjects the accused to a potential prison term ranging from one to ten years in the State Penitentiary. Ill Rev Stats, c 38, § 16-1 (1967). The rule which has been generally followed and which no doubt has evolved from the similar civil law rule is that the State must prove the fair cash market value of the article at the time and place of the theft. People v. Kurtz, 37 Ill2d 103, 224 NE2d 817; People v. Rose, 19 Ill2d 292, 166 NE2d 566. The precise question which remains is whether a 1961 Pontiac automobile purchased for $1,358 and in use by the owner for two years before it was stolen has a value in excess of $150.

In People v. Harden, 42 Ill2d 301, 247 NE2d 404, the court held that testimony which has not been objected to is sufficient to establish value in the absence of contrary evidence, if the witness has sufficient knowledge of the property and its value to give a reasonable estimate. We find that the owner in the instant case possessed the requisite familiarity with his property to testify to its value. As this court stated in the recent case of People v. Newton, 117 Ill App2d 232, 254 NE2d 165, “Automobiles, like household furniture, have become items of usual and ordinary nature.” Moreover, not only are automobiles articles of a usual and ordinary nature, but the respective makes are relatively few and their prices are better known and more widely discussed by both young and old than any other important article of commerce. The evidence in question established beyond a reasonable doubt that the value of the car was in excess of $150.

The judgment of the trial court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and McNAMARA, J., concur.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Eubanks, Defendant-Appellant.
    Gen. No. 53,815.
    First District, Fourth Division.
    December 10, 1969.
    Geter & Geter, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.

       Ill Rev Stats 1967, c 38, § 28-1 (a) (5):
      (a) A person commits gambling when he:
      (5) Knowingly owns or possesses any book, instrument or apparatus by means of which bets or wagers have been, or are, recorded or registered;
      The penalty is set out in Ill Rev Stats 1967, c 38, § 28-1 (c) which provides in part:
      A person convicted of gambling under any of subsections (a) (3) through (a) (10) of this Section shall be fined not to exceed $5,000 or imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 5 years, or both fined and imprisoned.

       See Callaghan’s Illinois Digest, same topic and. section number.

   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was indicted for the offense of gambling in violation of Ill Rev Stats 1967, c 38, § 28-1 (a) (5) . The defendant waived a trial by jury. He was found guilty by the presiding magistrate and was sentenced to pay a fine of $200 and was placed on probation for two years, the first sixty days to be served in the House of Correction.

The defendant does not challenge the sufficiency of the evidence that resulted in his conviction. His sole contention on appeal is that under the provisions of Ill Rev Stats 1967, c 37, § 624, the magistrate did not have jurisdiction to try him for an offense where the possible penalty for conviction exceeded a fine of $1,000 or imprisonment for more than one year. The record does not indicate any objection by defendant to the assignment of the case to a magistrate for trial.

In support of his contention the defendant cites People v. Chatman, 38 Ill2d 265, 230 NE2d 879. However, the recent decision of People v. Wexler, 116 Ill App 2d 400, disposes of defendant’s contention. In Wexler the defendant was tried and found guilty by a magistrate for the offense of gambling in violation of Ill Rev Stats 1967, c 38, § 28-1 (a) (5), which is the same violation as in the instant case. On appeal Wexler alleged that the magistrate who heard the case did not have jurisdiction to try or sentence him and cited Chat-man. Our court distinguished Chatman and found that the question was one of assignment rather than jurisdiction; that since defendant made no objection to the assignment of the case to a magistrate, he waived his right to be heard by a judicial officer other than a magistrate and is bound by the judgment.

We find a further reason for distinguishing Chat-man. Although the Supreme Court stated at page 268 that “[t]he penalty prescribed for an offense is therefore determinative of the magistrate’s authority for disposition,” yet it further stated at page 270:

It is manifest from an examination of the transcript of the proceedings before the magistrate, that the sole purpose of those proceedings, as was understood by all parties concerned, was to determine if probable cause existed for holding defendant to to the grand jury.

The specific issue decided by the court was that a preliminary examination to determine probable cause was not a basis for defendant’s claim of double jeopardy. Since the proceeding in Chatman was only a preliminary examination, the magistrate had been properly assigned to conduct it. (Ill Rev Stats 1967, c 37, § 624.) Therefore we cannot subscribe to defendant’s contention that Chatman held that a magistrate’s authority for disposition is necessarily determined by the penalty for the offense.

Our conclusion applies as well to People v. Webb, 39 I112d 146, 233 NE2d 865, in which the court determined that a preliminary hearing before a magistrate did not place defendant in jeopardy in relation to a claim of double jeopardy as a subsequent trial.

The judgment is affirmed.

Affirmed.

ENGLISH and LEIGHTON, JJ., concur.