text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John J. Falk, Defendant-Appellant.
    Gen. No. 53,541.
    First District, First Division.
    February 2, 1970.

      Short and Cervelli, of Chicago (Richard J. Short, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer'C. Kissane and Thomas E. Holum, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, John J. Falk, was indicted on March 18, 1968, for the offenses of deviate sexual assault and indecent liberties with a child. After a bench trial, he was found not guilty of deviate sexual assault and guilty of indecent liberties with a child. He was sentenced to five years probation.

Defendant’s principal contention on appeal is that the testimony of the fourteen-year-old prosecuting witness,

Grant Wagner, was uncorroborated and unconvincing and his guilt was therefore not proven beyond a reasonable doubt.

Chapter 38, section 11-4 of the 1967 Ill Rev Stats states that:

“(a) Any person of the age of 17 years and upwards who performs or submits to any of the following acts with a child under the age of 16 commits indecent liberties with a child; it
“(3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both.”

The record discloses that Donald Wagner, the father of the boy, and the defendant moved their boats into the same boatyard where the families met in May, 1967, and became friends. Mrs. Falk, the defendant’s wife, invited the boy onto their boat, and the boy, who had a troubled home life, frequently stayed with the Falks in their home on weekends. The Falks took Grant and their nephew on vacation in their boat, and gave the boy presents of a suit of clothes and a wristwatch. On one occasion the Falks had dinner at the Wagner home.

Grant Wagner testified that on February 2, 1968, the Falks took him out to dinner. They returned to the Falks’ apartment about 10:30 p. m., and shortly thereafter he and the defendant retired to a bedroom with twin beds which was across the hall from the bedroom of the defendant’s wife. He described an indecent act with the defendant which occurred at that time, the details of which are unnecessary to relate here. He testified further that the first incident of this nature occurred in August of 1967 in the defendant’s office which was downstairs from the defendant’s apartment. He said such acts occurred on eighteen different occasions. Grant related that two or three weeks after the February 2nd occasion, he next saw the defendant in his silver Cadillac car near the school where he was a safety patrol boy. The defendant told Grant that he missed him and asked Grant to phone him. Grant said that he would. He testified that he also saw the defendant several days later on the same corner.

On cross-examination, Grant testified that usually Mrs. Falk would invite him when he went to their home for the weekend, although sometimes Mr. Falk would ask him. Occasionally Grant would call Mrs. Falk and ask if he could come see them. He spent about twelve weekends with the Falks. He addressed the Falks as “Uncle” and “Aunt.” Grant said that he never said anything about the prior incidents to his parents or anyone else before February 2nd. He said that the defendant never struck him, but told him that if Grant ever told anyone, such as his parents or the police, what they had done he would say that it was Grant’s idea. Later in the cross-examination, Grant said that Mr. Falk told him that if he ever told anyone about the incidents he would say that Grant was crazy and deny them. Grant said that he told the defendant about his troubles at home and said that the reason he went to visit the Falks was that he didn’t have any activities at home. He once told the Falks that he wished they were his parents. Although he said that the February 2nd incident happened at 10:30 p. m. in the Falks’ apartment, he admitted that he had told the grand jury that it happened that afternoon in the office downstairs. After his recollection had been refreshed, he said that it occurred after he had helped the Falks lay a carpet until about 2:00 a. m. the next morning.

The defendant, John Falk, a fifty-three year old real estate and insurance broker, testified in his own behalf. He said that he first met Grant when his wife took Grant inside their boat to show him the interior while Mr. Falk was painting the boat. He said that he didn’t see Grant again until the following spring or fall. Grant would call Mrs. Falk and ask her if he could visit them because he wanted to get away from his home on weekends. He told Mrs. Falk that his mother said that he couldn’t go to the Falks’ home unless Mrs. Falk invited him. Mr. Falk related that Grant told him that his father was running around with a girl friend. Grant told Mr. Falk that he didn’t tell his mother this because his father would probably kill him if he did. He said that Grant told him about his father being abusive to him. The defendant said that he went to see Grant on February 15th or 16th because Grant hadn’t called him as he would normally do once or twice a week. Grant told him that he had told his father that Mr. Falk “was looking at me.” Mr. Falk said that he wanted to know what this was all about. Grant then told him that he would straighten it out. The defendant denied the charges and said that it would have been impossible for the alleged acts to have occurred in his office where the doors were always open with people entering and leaving all the time. The back of these premises are sublet and about ten employees are there all the time. On cross-examination the defendant stated that he had purchased a watch and a suit for Grant and that he treated him like a son.

The defendant’s wife, Cecelia Falk, testified that the boy would call her, requesting to stay at their home on weekends. She said they gave the boy a suit and a watch for Christmas. When Grant visited them, he and Mr. Falk would sleep in the twin beds in the room across the hall from Mrs. Falk’s room. She said that the door to their room was always open and that her dresser was in that room and she would have to go into the room several times. She never saw any indecent sexual act between the defendant and the boy. She said that people were going in and out of her husband’s office all the time and that the subtenant had many employees working behind the office. Mrs. Falk said that the boy would come to her bedroom when she was dressing and she had to close the door and put a sweater over the keyhole. She told him that she would have to tell his father that he looked through the keyhole at her. She said that Grant lifted her dress once when she was going up the stairs. When she told him she would tell his father, he told her not to because his father would probably kill him. The prosecutor then asked Grant who had first denied it, if he had ever lifted Mrs. Falk’s dress. He then admitted it, but said that it was a joke.

Martha Brough, who lives near Grant’s school, testified that she saw a gray Cadillac in front of her home on February 16, 1968, and again about three days later. She saw a boy dressed in a patrol belt approach the car and talk to the man inside. She called the police the second time she saw the car and gave them its license number. It was the defendant’s car. There were also two witnesses who testified that the defendant’s reputation in the neighborhood for truth and veracity and sexual morality was good.

It is well established that a reviewing court will not disturb a conviction for indecent liberties with a child, where the defendant denies the charge, where there is either some corroboration of the testimony of the prosecuting witness or that testimony is otherwise clear and convincing. People v. Ulrich, 30 Ill2d 94, 195 NE2d 180; People v. Kolden, 25 Ill2d 327,185 NE2d 170. The reason given by the courts for this rule had been that this type of accusation is easily made and most difficult to defend. We have concluded that by either standard the defendant was not proven guilty beyond a reasonable doubt!

We have viewed the authorities submitted to us by the State. In People v. Finn, 12 Ill2d 76, 145 NE2d 30, the principal witness, a twelve-year-old girl, testified that she had sexual relations with the defendant at the latter’s house. The defendant admitted that he knew the girl and that she had been at his house at that time, but denied ever having sexual intercourse with her. A neighbor of the defendant had, however, observed the defendant “necking” with the girl and overheard him state that he had had sexual intercourse with her. This was held to be sufficient corroboration. In People v. Gambony, 402 Ill. 74, 83 NE2d 321, the forty-three-year-old defendant met the thirteen-year-old complaining witness through her girl friend. He gave them money and entertained them in the privacy of his living quarters, which the court stated gave rise to an inference that his interest in the girls was other than platonic. He also attempted to negotiate with the girl’s parents, and there was testimony that he tried to bribe the State’s witnesses. In People v. Halteman, 10 Ill2d 74, 139 NE2d 286, a girl of nine told her mother what had taken place at a party given in the defendant’s home for his daughter. When the mother called on the defendant to complain, he volunteered a statement concerning other instances of similar wrongdoing by him with the girl. At that time, the mother knew only of the incident at the party. The girl’s accusation was thus corroborated by the defendant himself. The defendant in People v. Tappin, 28 Ill2d 95, 190 NE2d 806, was living with the girl’s aunt in a common-law relationship. The girl of five testified that the defendant molested her on two occasions when she was alone at his home with him. There was substantial medical corroboration. In People v. Mueller, 2 Ill2d 311, 118 NE2d 1, the defendant agreed with the complaining witness’s testimony except for the specific indecent acts. The father of the girl testified that when he confronted the defendant with the accusation he replied “give me another chance.” When arrested, according to the police officer, the defendant said “Can’t we talk this over? Can’t we forget this ?” There can be no doubt that these cases present corroboration of the testimony of minor children.

In the instant case, the trial judge stated that he considered the fact that the defendant had gone to see the boy on two occasions at the school—several weeks after the boy spent the weekend at the defendant’s home—as corroboration of the boy’s accusation. The facts, however, show that the boy considered the Falks as he would close relatives and that they treated him as if he were their son. He was frequently with Mr. and Mrs. Falk at their home for an extended period of time with the knowledge and consent of his parents. The defendant, with his wife, openly gave the boy gifts about which his parents obviously knew. Mr. Falk did not deny his meetings at the school with Grant, and Grant did not testify that Mr. Falk asked him to change his allegation, but only that he wanted him to phone. We do not think that under these circumstances the two meetings corroborated the boy’s accusation.

We do not think that the boy’s accusation, standing alone, is sufficient to prove the defendant guilty beyond a reasonable doubt. The defendant denied the charges. He was fifty-three years old and had never been charged with a serious crime. It was his wife who generally invited the boy to spend the weekend at their home. She was usually present in the apartment or on the boat when Grant was there. She testified that the door to the room across the hall from her bedroom where the defendant and the boy slept was always open. Her dresser was in their room and she had to go in and out of the room several times in the morning and evening. The door to Mr. Falk’s office where several of the indecent acts were alleged to have occurred was usually open and people frequently entered the office. Behind his office was an area which he sublet to a tenant with at least ten employees. It is unreasonable to believe that during the eighteen incidents testified to by the boy there would be no suspicious conduct between him and the defendant which would have alerted the boy’s family, the defendant’s wife or some persons who would have corroborated his allegations.

The boy’s testimony included several contradictions. He told the grand jury that the last incident of February 2, 1968, occurred in the afternoon in the defendant’s office. At the trial he stated that it happened in the bedroom in the defendant’s apartment about 10:30 p. m. After his recollection had been refreshed, he said that it occurred after he had helped the Falks lay a carpet until about 2:00 a. m., the morning of February 3rd. The boy also denied putting his hand up Mrs. Falk’s skirt, but later admitted it after she had testified concerning the incident.

Although the credibility of witnesses and the weight to be given their testimony is primarily a question for the trial court, a reviewing court is especially charged with the duty on a charge of indecent liberties to reverse the conviction if the evidence as a whole does not create an abiding conviction that the defendant is guilty of the crime charged. People v. Nunes, 30 Ill2d 143, 146, 195 NE2d 706, 707. We do not find the prosecuting witness’ testimony to be so clear or his allegations so convincing as to prove the defendant guilty beyond a reasonable doubt without corroboration which we find to be lacking in this case. The judgment is, therefore, reversed.

Judgment reversed.

MURPHY and ADESKO, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    Lillian Conley, Plaintiff-Appellee, v. Dorothy Echoles, Defendant-Appellant.
    Gen. No. 53,612.
    First District, First Division.
    February 2, 1970.

      Eugene W. Wood, Haft, Shapiro & Haft, of Chicago (Morris A. Haft, of counsel), for appellant.
    Simon & Ingram, of Chicago (Robert B. Simon and John D. Ingram, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Plaintiff and defendant, desirous of engaging in a combination liquor and grocery store business venture on a partnership basis, executed two written agreements: (1) a preliminary agreement which stated that the plaintiff would pay the sum of $2,500 to the defendant for the privilege of becoming a partner of the defendant; and (2) articles of partnership. The instant action sought a partnership dissolution and “other and further relief.” After a non jury trial the court found that the partnership never materialized and there had been a failure of consideration and entered judgment in favor of plaintiff for $2,500, plus costs, from which defendant appeals.

On appeal defendant contends that (1) the trial court erred in basing its judgment on rescission when such wasn’t pleaded or proved; (2) certain pronouncements of the court precluded her from offering further proof on an issue; (3) plaintiff was entitled only to an accounting; (4) plaintiff was bound by testimony of defendant called by plaintiff as an adverse witness; and (5) the court erred in striking plaintiff’s counterclaim.

Defendant operated a cocktail lounge at 1715 East 71st Street in Chicago and in 1965 was desirous of going into the business of operating a combination grocery and package liquor enterprise. She rented a store at 1729 East 71st Street in Chicago for a term of five years, commencing September 1,1965, “for the display of groceries, meats, and package liquors,” at a rental of $150 per month. On September 28, 1965, plaintiff and defendant entered into a “Preliminary Agreement to the Execution of General Articles of Partnership,” the provisions of which included:

“2. Lillian Conley acknowledges that prior hereto Dorothy Echoles expended time and money of the value of $2,500.00 in preparing the premises, to the date hereof, to be used in the proposed partnership business, and agrees to pay to Dorothy Echoles the sum of $2,500.00 for the privilege of becoming her partner and as reimbursement in full for expenditures of time and money made to the date hereof.
“3. It is further understood and agreed by and between the parties hereto that the $2,500.00 being paid by Lillian Conley to Dorothy Echoles as aforesaid, is not a contribution to the capital of the partnership to be formed, is not refundable under any circumstances, and is not a credit on any future partnership assets, except insofar as the leasehold improvements now existing and now in place in the premises have value, which value shall be shared equally upon formation of the partnership.”

On the same date the parties signed “General Articles of Partnership” to establish the partnership.

Defendant, called under section 60 of the Civil Practice Act, testified that she spent $300 as rental security, $1,000 for remodeling the store front, $225.75 for floor tiling, $40 for welding work, upwards of $500 to have the store front extended, $100 for electrical work and $700 to $800 for other items. All of these payments were made prior to September 28, 1965, the date of the agreement preliminary to the partnership agreement, but plaintiff had paid $2,500 on that date for the privilege of becoming a partner. Also, subsequent to execution of the “General Articles of Partnership,” fixtures and items of equipment were purchased and rent and other expenses were incurred, all of which were paid for by plaintiff and defendant.

Defendant further testified that the store did not open for business because plaintiff “just walked away and the store remained unoccupied for a whole year and all the improvements, including the check-out counter and the shelves, were in there for a whole year.” Defendant also paid the rent for the entire year, during which time she did not get any money from plaintiff. In September or October of 1966 defendant began using the store for her own business, and has continued to pay rentals due during the term of the lease.

Plaintiff testified that she spent money from her own funds over and above the $2,500 and kept a record of these expenditures. She eventually received the key to the store in November of 1965. She terminated the partnership for the reason that “Mrs. Echóles didn’t appear to be trying to open up a business; I didn’t wish to turn in any more money on a business when I didn’t know where my money was going to; I was never able to have a business conversation with her; I couldn’t get her to show me anything concerning the bills that she was keeping.”

At the close of the testimony and proofs, and after an extended discussion with counsel, the court found in favor of plaintiff and entered a decree for $2,500, plus costs.

The complaint, in substance, alleged that (1) on September 28, 1965, Articles of Partnership were executed; (2) the partners agreed to full disclosure and for consultation with each other; (3) defendant took exclusive possession of the books and assets of the partnership and refused to have books of account prepared and to keep them for inspection, nor was a general account of the affairs of the partnership prepared as of January 1, 1966; (4) that plaintiff invested a sum in excess of $5,000 in the partnership, which included an initial sum of $2,500 paid to the defendant on account of representations made by such defendant that she arranged for a lease and had made expensive leasehold improvements; (5) that the defendant was guilty of inequitable and unconscionable conduct toward the plaintiff; (6) that the partnership was heavily in debt and on account thereof the plaintiff is personally obligated on certain partnership obligations and that no equitable division of assets and goodwill of the partnership could be made without prejudice to the plaintiff’s interest; and (7) that defendant conducted herself so as to make it appear that she desired to become the sole owner of the enterprise.

The complaint prayed for the following relief: (1) that the partnership be dissolved by decree of court; (2) that a receiver be appointed to dispose of the partnership property to pay the debts, costs, and expenses; (3) _ that the surplus proceeds of the sale to be paid to plaintiffs; (4) that judgment be entered against the defendant for an amount constituting the difference between plaintiff’s investment and an amount to be received by her resulting from the sale of the partnership assets by the receiver; and (5) “for such other and further relief in the premises as the Court may deem equitable and proper.”

Defendant’s first contention is that the trial court erred in basing its judgment on contract rescission when such wasn’t pleaded or proved and that “the complaint contained no allegation which if proven would require payment to the plaintiff by the defendant of such sum of $2,500.00.”

Defendant argues that under the preliminary agreement the $2,500 was payment for the privilege of plaintiff becoming defendant’s partner through the purchase of one-half of whatever defendant had, and was not refundable under any circumstances. She notes that the only possible mode of recovery would be a complaint for rescission, and since there was no pleading of this nature filed by plaintiff, the court was incorrect in awarding the $2,500 to her, absent an amendment of her complaint. Among the authorities cited are Broberg v. Mann, 66 Ill App2d 134, 213 NE2d 89 (1965); Leffers v. Hayes, 327 Ill App 440, 64 NE2d 768 (1945); and Field v. Field, 319 Ill 268, 149 NE 757 (1925). In Field v. Field, it is stated (p 270) :

“Before a party is entitled to a decree his allegations and proof must agree. If the allegations in a bill are not established by the proof, or if the proof establishes a state of facts not alleged in the bill, and no amendment of the bill to correspond with the proof is made, the bill must be dismissed. . . . The decree cannot give relief which facts disclosed by the evidence would warrant, where there are no averments in the bill to which the evidence can apply.”

Defendant further argues that there was a total absence of evidence which would tend to support a claim for rescission. That the court based its judgment on rescission is apparent from the following colloquy:

Mr. Haft: “You know, Your Honor, based on the statements that Your Honor made for the record, I didn’t put in more than I could have put in, but I have to take Your Honor’s word for what happened.”
The Court: “That’s your privilege, to put on your case.”
Mr. Haft: “I know it’s my privilege, but Your Honor made statements and you said that $2,500.00 she paid for the key, period, and I am not going to consider it.”
The Court: “Of course that’s what she paid for.”
Mr. Haft: “Yes.”
The Court: “Why certainly.”
Mr. Haft: “Then why are you giving it back?”
The Court: “Because she never got anything for the $2,500.00. She didn’t get the key. She didn’t get a business. Even if there was a mutual rescission, she would be entitled to that money. Under any principle of law that you can mention, she’s entitled to that $2,500.00 back again. It didn’t materialize. Wouldn’t even make any difference as to whether the rescission was by your client or by the other. It’s a rescission. No business, nothing between them.”
The Court: “I will say this to you: I am very liberal in my interpretation as being a rescission and only allowing the repayment of the $2,500.00. I could have found that the fault of not going ahead with the partnership was the defendant’s fault and I could have imposed $1,981.00 additional obligations on her, but I am not doing it.”

Defendant asserts that the preliminary agreement was fairly entered into for an adequate consideration and cannot be avoided or disregarded by the plaintiff. (Albers v. Continental Illinois Bank & Trust Co., 296 Ill App 592, 17 NE2d 66 (1938).) Also, where a contract is unequivocal in its terms it must be interpreted according to the language used, for it is presumed that the parties meant what their language clearly imputed. National Acceptance Co. v. Exchange Nat. Bank, 101 Ill App2d 396,243 NE2d 264 (1968).

Defendant finally notes that the preliminary agreement clearly stated the intention of the parties and that absent an ambiguity, this intention could be only determined from the language of the agreement itself and not from extrinsic circumstances. The authorities cited included Herlihy Mid-Continent Co. v. Sanitary Dist. of Chicago, 390 Ill 160, 60 NE2d 882 (1945), and Patent Scaffolding Co. v. Standard Oil Co. of Indiana, 68 Ill App2d 29, 215 NE2d 1 (1966). In Herlihy Mid-Continent, the court stated (p 166):

“In construing a contract, the primary object is to ascertain the intention of the parties. . . . That intention must be determined from the language in the contract. If the intention may be ascertained from the wording of the contract, rules of construction have no application. ... No words can be added to or taken from a contract and thereby change the plain meaning of the parties as expressed herein.”

In Patent Scaffolding Co., the court stated (p 37):

“Courts are not authorized to make contracts for the parties but must construe them as written. A contract must be given a fair and reasonable interpretation, and from the entire language used and considered in the light of the circumstances under which it was made, the court must ascertain the intent of the parties.”

Plaintiff argues that the complaint reasonably informed defendant of the nature of the claim she was called upon to meet. She notes that “the complaint and the proof upon trial were directed to the effort of the plaintiff to recover the money which she had invested with the defendant—money which had been wasted when the defendant embarked upon a course of conduct independent and exclusive of the relationship which the parties had contemplated.” She points out that paragraph 7 of the complaint alleged that defendant abandoned the relationship and that paragraph “D” sought the return of plaintiff’s money. On the basis of this she contends the court was thus justified, after hearing the evidence, in awarding the return of plaintiff’s $2,500. The authorities cited include Pope v. Speiser, 7 Ill2d 231, 130 NE2d 507 (1955), and Annerino v. Dell Pub. Co., 17 Ill App2d 205, 149 NE2d 761 (1958). In Pope v. Speiser, the court said (p 243):

“It is well established under the former general equity practice that the fact that the complaint may not have contained a specific prayer for establishment of an equitable lien does not deprive the court of equity of the right to enter a decree of such character under a prayer for general relief.”

In Annerino v. Dell Pub. Co., the court said (p 210):

“In deciding whether plaintiff has stated facts sufficient to allege a cause of action, the court must look to the plain and fair intendment of the language used by plaintiff and the facts which may be reasonably implied from such language. ‘No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.’ ”

In the instant case the complaint, in paragraph 4, alleged:

“That the Plaintiff invested a very large sum of money in the partnership venture, to-wit: an amount in excess of $5,000.00; that an initial sum of $2,500.-00 was so invested predicated upon Defendant’s representation that she had through her sole funds and time arranged for a lease and made expensive leasehold improvements of a value of $2,500.00, which representation Plaintiff alleges to be contrary to the facts and that the balance of said investment, in the approximate additional amount of $2,500.00 has been put into said business by Plaintiff without the benefit of an accounting.”

From the foregoing, and from plaintiff’s prayer for relief which sought “such other and further relief in the premises as the Court may deem equitable and proper,” we think it was clear that plaintiff was seeking, among other things, the return of her $2,500, based on defendant’s failure to open up the business.

Defendant next contends that “when the trial judge changed his mind as to the allowance of $2,500.00 to the plaintiff, fairness required that he so inform the defendant to afford her an opportunity to offer proof.” Defendant asserts that the defendant was taken by surprise when the court found in favor of plaintiff in the sum of $2,500 on the basis that there had been a failure of consideration and a rescission by virtue of the fact that the partnership never materialized and hence the plaintiff was entitled to the return of the $2,500. She asserts that throughout the trial the court took the position that the $2,500 was in accord with the preliminary agreement between the parties and was not a reimbursement for expenditures made, nor was it refundable. Defendant argues that “fairness required the Court to advise the defendant that it had changed its mind and thinking as it related to the $2,500.00 paid by the plaintiff to the defendant under the terms of the preliminary agreement; the Court’s abrupt finding against the defendant without notice of its change of attitude, deliberately cut off the defendant’s right to offer further or other proof. An action of the very like kind was frowned upon in People v. Riebe, [40 Ill2d 565] 241 NE2d 313, 314, and in the Broberg v. Mann case, 213 NE2d 89, at page 91.”

We have examined the record and find that there was no prejudicial surprise involved here. Defendant was apprised of plaintiff’s claim, and if the court may have seemed to favor defendant’s side at first, defendant should be ready for any change in the court’s attitude as the trial proceeded.

Next considered is defendant’s contention that on the dissolution of the partnership, the plaintiff was entitled to an accounting only. Defendant asserts that plaintiff could not maintain an action at law upon a demand growing out of the partnership until partnership accounts had been settled and a balance struck. Defendant notes that an accounting and settlement between copartners is required as a condition precedent to an action at law by one partner against a copartner for the reason that such dispute ordinarily involves the taking of an account to determine whether the plaintiff would be entitled to a refund in a partnership transaction. Authorities on this point include Olson v. Olson, 66 Ill App2d 227, 213 NE2d 95 (1965), where the court stated (p 234):

“Even if the parties were partners, the plaintiff could not maintain an action at law against the defendant upon a demand growing out of the partnership, until the partnership accounts had been settled and a balance struck. . . . Such procedure had not been attempted herein.”

We find no merit to this contention. Here the court took the position that the partnership never materialized and, therefore, it was unnecessary to dissolve it. The court found that plaintiff was entitled to the return of her preliminary agreement payment because of a failure of consideration. The $2,500 was not “a contributian to the capital of the partnership,” and plaintiff did not get what was promised to her by defendant. She was, therefore, entitled to the return of what she had paid under that agreement.

Defendant next contends that plaintiff was bound by the testimony of defendant, called by plaintiff as an adverse witness. Defendant notes that her own testimony, which was “believable and the truth of which was not improbable,” stood unimpeached and uncontradicted. Authorities include Coss v. Magdziasz, 65 Ill App2d 40, 212 NE2d 717 (1965), where it is said (p 43):

“Section 60, supra, itself provides:
“ ‘The party calling for the examination is not concluded [by the adverse party’s testimony] but may rebut the testimony thus given by countertestimony and may impeach the witness by proof of prior inconsistent statements.’ ”

As argued by plaintiff, defendant’s testimony was contradicted by plaintiff on material elements of the case, and plaintiff’s evidence supported the trial court’s finding. We conclude that the credibility of the witnesses was a matter for the trial judge who observed the witnesses, listened to their testimony and chose to believe plaintiff.

Defendant’s final contention is that the trial judge erred in striking defendant’s counterclaim that asked for “any monies found to be due to the defendant from the plaintiff; And for such other and further relief in the premises as this Court may deem fit to grant.” The record shows that defendant sought to file an amended counterclaim during the trial of the case, and in denying defendant’s motion the court remarked: “Besides you don’t have a counterclaim for rent. Have no counterclaim, no setup of a counterclaim of any kind. You came in and offered to file a counterclaim after the testimony had been taken, in the middle of the trial of the case. Under what theory can you file a counterclaim under those circumstances?,” and counsel for defendant replied: “Oh, it’s a matter of discretion with the Court. Everybody knew about everything in this case* ’

We agree that it was a matter for the discretion of the trial judge, and we find no' abuse of that discretion in striking defendant’s counterclaim or in rejecting defendant’s amended counterclaim. Simmons v. Columbus Venetian Stevens Buildings, Inc., 20 Ill App2d 1, 9,155 NE2d 372 (1959).

For the reasons given, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Andrew Gee (Impleaded), Defendant-Appellant.
    Gen. No. 53,626.
    First District, First Division.
    February 2, 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 John R. McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Andrew Gee, and Lucius C. Hawkins, were jointly charged in a two-count indictment with having committed the offense of unlawful use of weapons in that they knowingly possessed a bottle containing an explosive substance—gasoline—and in Count II, knowingly possessed a bottle containing an explosive substance—Molotov cocktails—in violation of chapter 38, section 24-1 (a-7) of the 1967 Ill Rev Stats.

At the trial on June 6, 1968, a motion to suppress physical evidence was filed by the defendant, Andrew Gee, and after a hearing it was denied. The defendant then pleaded not guilty and waived a jury trial. He was found guilty of the unlawful use of weapons and sentenced to one to three years in the Illinois State Penitentiary.

The defendant, Andrew Gee, contends on appeal that he was not found guilty beyond a reasonable doubt because his conviction was based on evidence which was the result of an unlawful search and seizure. He alleges that there was no probable cause for his arrest without a warrant and the search of the car, which accompanied his arrest, thus violated his rights as guaranteed by the Constitutions of the United States and the State of Illinois.

At the hearing on the motion to suppress, defendant, Andrew Gee, testified that he left a barbeque place and was being driven home by another person when they were arrested at 61st and Halsted on April 6, 1968, about 4:00 a. m. They were southbound on Halsted Street when stopped by the police. The defendant testified that “he was not shown any piece of paper by the police when they arrested him.” On cross-examination the defendant stated that there had been rioting in that neighborhood the preceding day.

Officer Jacob Pylman testified that he was working on a twelve-hour shift from 6:00 p. m. Friday, April 5, 1968, to 6:00 a. m. Saturday, April 6, 1968. He was in a marked squad car with three other police officers patrolling the general area when a man driving a brown Pontiac stopped them. He told the officers that while in a gas station he heard that two male negroes in a blue Plymouth with Illinois license plates LW9296 had purchased a bottle of gasoline and stated that they were about to start a fire at 63rd and Halsted. The man suggested that the car would shortly come southward down Halsted. On that particular day, following the murder of Dr. Martin Luther King, Jr., there were, according to Officer Pylman, riots, fires, damage of stores and shootings of policemen in that area. When Officer Pylman asked the informer his name, the man replied, “I am a citizen.” As the police officers proceeded across Halsted, Officer Pylman observed a blue Plymouth with Illinois license plates LW9296 and two men in the front seat going south on Halsted. When they stopped the car and turned the spotlight on it, the officer saw both persons in the car reach toward the floorboard. Officer Pylman said that because of the rioting he was in fear of his life when he ordered the men out of the car and observed the bottle of gasoline in the middle of the floor.

After the testimony of these witnesses, the motion to suppress was denied and the case proceeded to trial. The parties stipulated that the same questions put to Officer Pylman and his answers at the hearing on the motion to suppress would be substantially the same if asked during the trial. The officer testified further that the bottle was a ten- or twelve-ounce “Old Dutch” pop bottle with a paper towel stuck in its neck. It contained a brown amber liquid which smelled like gasoline. It was in open sight in the middle of the car floor next to where he saw the defendant, who was in the front passenger seat. The bottle was inventoried and taken to the police department crime lab for analysis. Officer Pylman identified the bottle and the towel.

It was also stipulated that if Robert Boese, a chemist employed by the Chicago Police Department, were called as a witness, he would testify that he received the bottle and based upon his examination he found the liquid contained therein to be gasoline. No evidence of fingerprints was found on the bottle.

Andrew Gee, the defendant, took the stand in his own defense. He denied ever seeing the bottle until Officer Pylman brought it back to the police car where he was being detained. He denied reaching toward the floorboard and said he didn’t see Hawkins do SO' when the police stopped them. The defendant testified that when he left the barbeque, Hawkins, whom he had not met before, offered to take him home and he gave Hawkins a dollar to do so. Before they left the barbeque at 59th and Halsted, Hawkins had gone outside for about fifteen minutes alone. They left the barbeque at 4:00 a. m. and were arrested a few minutes later. Officer Pylman testified in rebuttal that he arrested the defendant at 5:00 a. m.

The defendant argues that his arrest was based on mere gossip from an anonymous informer whose reliability was not established. It is urged that there was, therefore, no probable cause for the unwarranted and illegal arrest and search of the defendant. Since the only evidence of the defendant having possession of the bottle of gasoline resulted from that arrest and search, the defendant asks that his conviction be overturned.

As stated in People v. McGurn, 341 Ill 632, 635,173 NE 754, 756:

The guaranty of the constitution is not against all search and seizure but against unreasonable search and seizure and does not extend to an immunity from search and seizure on lawful arrest. Where a crime has, in fact, been committed and an arrest is made by an officer who has reasonable ground for believing the person arrested is implicated in the crime, such officer has the right to search the person arrested without a search warrant, and in such case the right of search and seizure is incidental to the right of arrest.

In the McGurn case, the defendant was arrested by a police officer who admitted he had no ground to believe or suspect that the defendant had committed a crime. He arrested the defendant only because he had a standing order from a superior to arrest the defendant on sight. Since the only evidence of the defendant’s carrying a concealed weapon came from this illegal arrest and the accompanying search, his conviction was reversed.

The Supreme Court in Beck v. Ohio, 379 US 89, 85 S Ct 223, laid down the rule that whether the arrest was constitutionally valid depends on whether, at the moment the arrest was made, the officers had probable cause to make it—whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.

The evidence in Beck showed that the officers stopped the defendant’s car without an arrest warrant or a search warrant and placed him under arrest. A search of the car revealed nothing of interest. At the police station the officers searched his person and found a number of clearing house slips under his sock. A motion to suppress this evidence was denied. The Supreme Court found that the evidence of the police officer given at the hearing on the motion to suppress was too meager to uphold the arrest and search. The court found nothing in the record of any indication of what information the officer had received other than that he knew what the defendant looked like and that he had a record in connection with clearing houses and schemes of chance. Someone had told the officer something about the defendant, but there was nothing that would indicate that any informer had said that the defendant could be found at that time and place.

[W]hen the constitutional validity of the arrest was challenged, it was incumbent upon the prosecution to show with considerably more specificity than was shown in this case what the informer actually said, and why the officer thought the information was credible. 379 US at 97, 85 S Ct at 229.

In the present case, the prosecution did show with great specificity what the informer actually said and why the officer thought the information was credible. The incident occurred during the time and in the vicinity of the rioting, pillaging and burning which followed the news of the murder of Dr. Martin Luther King, Jr. The officers, while patrolling this general area in a marked police car during the early morning hours of April 6, 1968, were stopped by a concerned person who preferred to remain anonymous. He informed the officers that while in a gas station he had heard that two male negroes had purchased a bottle of gasoline and had stated that they were about to start a fire at 63rd and Halsted. He furnished the police with the license number and a description of the car. He suggested that it would shortly come southward on Halsted. The officers had immediate corroboration of the informer’s allegation when they saw the car with the license number and description the informer had given them coming southward on Halsted as he had said it would. The informer’s story had proved accurate in its essential details. This hearsay statement to the officers was thus proper to constitute probable cause for an arrest and search without a warrant. Draper v. United States, 358 US 307, 79 S Ct 329.

The police had been told that the defendant and his companion were committing a crime—unlawful use of a weapon—and were about to commit a more serious crime—burning a building with a possible loss of life.

The information which the police had and had found to be essentially reliable required immediate action or lives might be lost and property destroyed. The police, as reasonably prudent men in the circumstances would have been, were warranted in the belief that their safety and that of others was in danger and had the authority to search for weapons. Terry v. Ohio, 392 US 1, 27, 88 S Ct 1868,1883.

In a recent case, In re Boykin, 39 H12d 617, 237 NE2d 460, our Supreme Court upheld a conviction for carrying a concealed weapon where the only evidence of the crime was obtained in a search based on an anonymous tip given to the superintendent of a school and relayed by him to the police. In that case, as in the instant one, there was no possible gain to the anonymous informant in giving false information to the police. The police were not required to delay until they ascertained that the informant was in fact anonymous. The court said:

The constitutions are concerned with the “unreasonable” search, and the reasonableness of a search may, or may not, depend upon the existence of probable cause to make an arrest.” 39 Ill2d at 620, 237 NE2d at 462.

From all the circumstances we think the search, if indeed there was a search, since the bottle was in plain view in the car, was a reasonable one and the motion to suppress was properly denied.

We find no merit to the argument that the court prejudiced the defendant by not stating whether he was convicted on one count or both. The evidence was sufficient on both counts.

The judgment of the Circuit Court is affirmed.

Affirmed.

MURPHY and ADESKO, JJ., concur.


text:
    Louis Binder, as Father and Natural Guardian of Michele Binder, a Minor, and Michele Binder, Plaintiffs-Appellants, v. Robert Dunn and Louis L. Dunn, Defendants-Appellees.
    Gen No. 53,792.
    First District, First Division.
    February 2, 1970.
    Samuel Yoelin, of Chicago, for appellant.
    Tim J. Harrington, of Chicago (A. J. Petrucelli, of counsel), for appellees.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This action was brought by plaintiffs to recover damages from the defendants for personal injuries and property damage suffered in an automobile collision. Defendants were served with personal service and failed to appear on December 9, 1968. On plaintiffs’ motion an order of default was entered on December 24,1968, for failure to file an appearance, and judgment was entered on that day in the amount of $4,807. The defendants appeared in court on January 10, 1969, pursuant to notice, and moved to vacate the default judgment and for leave to file an appearance, answer, jury demand, counterclaim or otherwise plead within ten days. On January 20, 1969, an order was entered vacating the default judgment, and defendants were given leave to file an appearance, answer, and jury demand instanter. Plaintiffs appeal from that order.

The sole issue is whether a default judgment can be vacated within thirty days of its entry upon notice of motion which was not accompanied by a sworn petition showing diligence and a meritorious defense.

The plaintiffs refer us to Gundersen v. Rainbow Cleaners & Laundry, Inc., 77 Ill App2d 268, 222 NE2d 41, and Dann v. Gumbiner, 29 Ill App2d 374, 173 NE2d 525. These cases involve motions made after thirty days of entry and are therefore distinguishable from the case at bar.

The Civil Practice Act, Ill Rev Stats 1967, c 110, § 50(5) provides:

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

The Joint Committee Comments provide an explanation of the requirements of this section:

Subsection (5) is former subsection (7) with several modifications. The requirement of a showing of good cause by affidavit has been deleted since the 1933 act on finality of judgments . . . does not contain that requirement.

The court retains the inherent power to vacate any of its judgments within thirty days upon good cause shown and upon “any terms and conditions that shall be reasonable.” Trojan v. Marquette Nat. Bank, 88 Ill App2d 428, 232 NE2d 160. No affidavit or petition required. There is nothing in the record that would indicate that in vacating the default judgment the court improperly exercised its sound judgment based upon the facts in the case. A reviewing court will only interfere if this discretion has been abused. It is our opinion that in the interest of doing substantial justice the defendants should be accorded their day in court.

Having determined this appeal on the merits, we do not decide the defendant’s motion to dismiss the appeal on the ground that the order appealed from is a final order. The decision of the Circuit Court, First Municipal District, is affirmed.

Affirmed.

MURPHY and ADESKO, JJ., concur.


author: PRESIDING JUSTICE BURMAN.

text:
    In the Matter of the Estate of Rachel Gingolph, Deceased. Benjamin Gingold, Appellant, v. Jerry Gingolph, Administrator, Appellee.
    Gen. No. 53,952.
    First District, First Division.
    February 2, 1970.

      Francis J. Mahon, of Chicago, for appellant; Arthur Rosenblum and Richard Fredo, of Chicago, for appellee.
   Opinion by

PRESIDING JUSTICE BURMAN.

Not to be published in full.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    Miriam L. Bishop, Administrator of the Estate of David H. Bishop, Deceased, Plaintiff-Appellant, v. City of Chicago, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 53,065.
    First District, Second Division.
    February 3, 1970.

      Barnabas F. Sears and Gerald M. Sheridan, Jr., of Chicago (Boodell, Sears, Sugrue & Crowley, of counsel), for appellant.
    William P. Butler, Thomas W. Dempsey, and Paul W. Engstrom, of Chicago (Raymond F. Simon, Corporation Counsel of City of Chicago), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This is an action brought for damages in the death of David H. Bishop, plaintiff’s intestate. Plaintiff’s complaint was dismissed by the trial court on August 3, 1967; plaintiff then filed a second amended complaint which was dismissed by the trial court on February 1, 1968, for failure to allege facts raising a duty to rescue the decedent from Lake Michigan. This appeal is taken from that order.

The issues presented to this court are whether defendant had a duty of exercising reasonable care for the safety of occupants of aircraft approaching Merrill C. Meigs Airfield, located on the shore of Lake Michigan, either by common-law duty, a duty imposed by the public policy of the State of Illinois, a duty voluntarily assumed by defendant, or a duty gratuitously undertaken or impliedly promised by defendant and relied on by decedent. Essentially, the case presents the question of whether the City of Chicago, as manager and controller of Meigs Field, has a duty to maintain and utilize reasonable rescue facilities to assist those aircraft which have fallen into Lake Michigan through no fault of defendant.

The second amended complaint states that Meigs Field is almost entirely surrounded by water and that the defendant knew, or should have known, that aircraft intending to land on the field are compelled to approach the runway over water, and that if forced to land in the water, those in the aircraft would be in great danger of injury or death unless the defendant provided reasonable rescue facilities. It is asserted that the defendant had assumed the duty of providing and utilizing such facilities and the personnel to operate them prior to the date in question.

It appears that on March 29, 1966, David Bishop took off from O’Hare Field, also managed by defendant; that he was apparently flying generally in an easterly direction when he became aware of operational difficulties. He reported his predicament to O’Hare’s control tower and received instructions to proceed to Meigs Field. O’Hare’s tower then contacted Meigs Field, which in turn alerted the Chicago Fire Department and its helicopter unit who sent a rowboat to attempt a rescue. Bishop was unable to reach the runway and was forced to land in the lake about 500 yards east of the field. He then got out on the wing of the plane, but by the time the rowboat manned by the Chicago Fire Department reached the scene the plane had sunk and Bishop had drowned.

The complaint alleged “careless, negligent and reckless acts or omissions which proximately caused the death of Plaintiff’s intestate”; however, we need not concern ourselves with those details. If the defendant had no duty to rescue, then there is no point in assessing elements which would not be relevant unless that duty existed.

After plaintiff’s initial brief was filed in this court Justice Murphy handed down an opinion in Traudt v. City of Chicago, 98 Ill App2d 417, 240 NE2d 188 (leave to appeal denied by Supreme Court), the facts in which were strikingly similar to those in the instant case. The plaintiff’s complaint had been stricken and the action dismissed. Plaintiff appealed, urging that her intestate had drowned after making a forced landing in the waters adjacent to Meigs Field, and that the defendants (City of Chicago and Butler Aviation Corporation, the airport’s agent) had a duty to have rescued the intestate, which duty they had breached.

In his opinion in Traudt, Justice Murphy concluded that a “special relationship” existed between the defendants and the intestate; that plaintiff’s intestate was a business invitee, and as such was entitled to reason-. ably safe ingress to and egress from the airport. The court pointed out, however, that the complaint included no allegation that ingress or egress was in any way involved in the action. At pages 423-424, the court said:

“There was no allegation that the mechanical failure of the airplane was related to the physical condition of the airport or ingress to it. We conclude the asserted special relationship status applied to the alleged facts shows no breach of any legal duty to the decedent, even though such an occurrence may have been foreseeable. . . .
“In our opinion, this case calls for the application of the rule that ‘a mere bystander incurs no liability where he fails to take any action, however negligently or even intentionally, to rescue another in distress.’ (Lacey v. United States, 98 F Supp 219, 220 (1951); 38 Am Jur, Negligence, § 18; 65 CJS, Negligence, § 63 (104).)”

In the use of the “mere bystander” theory the court has expressed the view that in situations where one is imperiled, but through no negligence of the defendant airfield, the airfield is in no different relationship to passengers on the plane than a stranger. In other words, the unfortunate situation in Traudt, as in the present case, is one for which the defendant is neither responsible nor duty bound to act upon. If it had been alleged that the airfield gave plaintiff’s intestate erroneous information which led to the disaster, or that defendant had failed to remove some obstruction from the path of ingress which was causally related to the mishap, the situation would be quite different. However, this was not true in the Traudt case nor the one before us.

The plaintiff suggests that the law should grow to adjust itself to altering conditions in society, and that the present case offers such opportunity and necessity. However, we do not agree that the hazard of flying an airplane over water to make a landing is a condition which of itself necessitates a duty being imposed upon the defendant to maintain and utilize rescue facilities. It does, however, create the duty to make the ingress to and the egress from the airstrip reasonably safe.

The plaintiff has cited a number of statutes and regulations dealing with the duties of those maintaining airfields, and argues that those impose the duty of rescue. We are not in agreement with this view. All of the statutes and regulations require the maintenance of “safe approach” and further provide that the municipality operating the particular airport have the power to regulate the approach of aircraft into the field. We feel that these rules require only that the defendant has the duty to remove obstructions and to take any and all reasonable precautions that landing and taking off be made safe. It is quite another matter to say that even though the defendant is in no way responsible for the difficulty one may have in attempting a landing, the defendant must nevertheless be considered legally obligated to effectuate a rescue operation. We do not feel that the latter duty exists as a matter of common law, nor do we feel that the statutes and regulations cited add anything to the rule.

The Traudt case also holds that the mere fact that an occurrence may have been foreseeable does not of itself show a breach of any legal duty. The plaintiff alleges and argues that prior to March 29, 1966, the defendant had assumed the duty of rescue by making available a Fire Department helicopter equipped with pontoons and inflatable rubber life rafts and training a crew for the purpose of rescuing occupants of aircraft forced by mishap to land in Lake Michigan reasonably adjacent to Meigs Field. Plaintiff also argues that on two occasions persons were so rescued. In answer to this argument it is sufficient to say that a case of assumption of duties is not made out by pointing to one or two isolated instances where defendant has performed the service which allegedly indicates defendant has assumed the duty.

It is worthy of note that at the time of the accident the decedent was not upon Meigs Field. The Illinois courts have declared that a possessor of land does not owe a duty of care to business invitees who are outside the physical premises over which he has possession and control. Stedman v. Spiros, 23 Ill App2d 69, 161 NE2d 590 (1959); Shannon v. High-Low Foods, 261 F2d 48 (7th Cir 1958); Kalil v. Wolldenroot Operating Co., 341 Ill App 58, 92 NE2d 786 (1950). In Stedman, a guest at defendant’s hotel fell over a precipice which was not on the hotel premises, but 50 feet away from the hotel building. The court refused to impose a duty upon the defendant with respect to areas beyond the premises owned by defendant, and at page 86 the court said:

“In the present case, the area upon which plaintiff ventured forth and met severe injuries was not occupied or controlled by the defendant and was not under his jurisdiction. ... To hold defendant liable upon the facts stated in the Amended Complaint would be a radical departure from existing law in this State which we regard as sound.”

Also see MacLean v. Parkwood, Inc., 354 F2d 770 (1st Cir 1966).

The cases cited by the plaintiff are not applicable, and we agree with the trial court that the second amended complaint did not state a cause of action; hence, the complaint was properly stricken. The judgment of the Circuit Court is affirmed.

Judgment affirmed.

LYONS and BURKE, JJ., concur.


author: MR. JUSTICE LYONS

text:
    Edward J. Snow, Plaintiff-Appellant, v. John R. Farwick and United Parcel Service, Inc., a Corporation, Defendants-Appellees.
    Gen. No. 53,098.
    First District, Second Division.
    February 3, 1970.
    Mitgang & Levine, of Chicago (John B. Schwartz, of counsel), for appellant.
    Schaffenegger & Watson, of Chicago (Jack L. Watson, of counsel), for appellees.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook County denying plaintiff’s motion for a new trial, entered after a jury returned a verdict for the defendants and answered a special interrogatory also in defendants’ favor. Plaintiff asserts that denial of the motion was error in that (a) the jury’s verdict and answer to special interrogatory were against the manifest weight of the evidence, and (b) submission of defendants’ special interrogatory to the jury was error.

The injuries of which plaintiff complains are alleged to have been sustained as the result of a collision between the automobile in which plaintiff was riding as a passenger and a truck operated by the defendant United Parcel Service and driven by its employee, defendant John R. Farwick.

Lewis Golik, driver of the auto in which plaintiff was riding, was called by the plaintiff and testified as follows. On May 16, 1961, at approximately 3:45 p. m. he was driving his automobile in a northerly direction on Kedzie Avenue. He was in the curb lane as he approached the intersection at 31st Street. There were three passengers in the car, including plaintiff who was sitting in left rear seat. Traffic was extremely heavy at the time and proceeded in a stop and go fashion. Before he reached the intersection his car was struck at the post between the front and rear doors on the right side by a United Parcel Service truck which had emerged from a driveway. The truck was facing in a westerly direction.

The witness did not see the truck until immediately prior to the collision when someone shouted “look out.” Upon sighting the truck the witness attempted to brace himself. Nevertheless, the force of the impact caused his body to be thrown to the left. Also as a result of the impact, the body of the car tilted to the left and the passenger in the right front seat was thrown toward the witness. The witness did not recall seeing any other truck, nor did he signal the United Parcel Service Truck to proceed prior to the collision. He did not accelerate his car at any time while in the vicinity of the driveway from which the truck emerged. The truck was driven by the defendant, Farwick.

After the collision the witness surveyed the damage to his automobile. The front of the truck struck his vehicle at the right post causing both doors and the post to be pushed inward. To the best of his recollection the cost of repairs was $225.

At the scene of the collision witness noticed'that plaintiff, a fellow employee, appeared to be injured and was slightly bent over. Plaintiff did not return to work for some time and when he did return he did not do the hard work which he had performed prior to the collision. Formerly the plaintiff had been a jovial person, but since the occurrence he acted as though he had worries and appeared to have aged.

Carl E. Jensen, the second witness called by the plaintiff, was a passenger in the right front seat of the Golik auto. He first saw the truck as it stood in the driveway four to five feet to the right (east) of the Golik auto. At this time the Golik vehicle was blocking approximately three-fourths of the mouth of the driveway. The truck then started forward and continued without stopping until it struck the Golik vehicle. The witness estimated the speed of the truck at four to five miles per hour. At impact the witness was thrown forward and to his left, his body striking the dashboard and steering wheel. His hat was thrown to the left side of the rear seat. When he saw the truck move forward he thought that its driver could see the car and would stop. There was not sufficient room between the Golik vehicle and that immediately ahead for the truck to pass between them. The witness noticed that Snow, plaintiff, looked pale following the collision.

Plaintiff’s brother, John Sosnowski, passenger in the right rear seat, testified that the collision occurred as the car began to move forward following a change of the traffic signal at 31st Street. The truck had been standing in a driveway while the car was stopped. Immediately prior to the collision, the distance between the Golik vehicle and that ahead of it was two to three feet. The impact caused the car to be moved eighteen to twenty-four inches to the left and caused the witness to be thrown to the left and into his brother. He landed on top of his brother. He estimated the truck’s speed to be five miles per hour.

Mr. Sosnowski finally testified that his brother was not the same when he returned to work. He required help in doing certain heavy work which he had previously done alone.

Officer Richard Schneider of the Chicago Police Department was the fourth witness called by the plaintiff. He testified that he was sent to investigate the collision in question and spoke with defendant Farwick at the scene. Farwick told him that he did not know how far he was from the car when he first saw it and estimated his speed prior to the collision at three to four miles per hour.

The Officer further testified that he conversed with the occupants of the Golik vehicle and they appeared to him to be “shaken-up.” Plaintiff complained of a scratch on his right hand and a back injury, but refused first aid, indicating that he would see his own doctor.

Elmo Brown, called as a witness by the plaintiff, testified that he was standing in an auto storage lot south of 31st Street on Kedzie Avenue at the time of the collision. He first observed the truck as it emerged from the driveway but was not yet across the sidewalk. The truck continued forward without stopping until it struck the Golik auto. No horns were sounded prior to the collision.

Edward Snow, plaintiff, testified as follows. He was a passenger in the left rear seat and had nothing to do with the operation of the automobile. He did not see the truck prior to the collision, nor did he have any warning prior to the collision. The force of the impact caused him to be thrown first to his left, into the corner formed by the rear seat and the side of the car and then to his right. His brother, seated to his right, was thrown toward him. A hat which the passenger in the right front seat had been wearing was thrown toward him. Following the collision he asked the driver of the truck why he had struck them and he responded that the driver of another truck had given him a signal to proceed.

Shortly thereafter the witness began to feel dizzy and faint, so he returned to the car. After getting back in the car he began to experience pain in the lower portion of his back, below the beltline. He also experienced pain and a dull throbbing sensation in his neck. The police officer at the scene asked if he was injured and wished medical assistance to which witness responded that he was injured, but would see his own doctor for treatment.

The plaintiff then testified to facts concerning doctors whom he had consulted and treatments which he had undergone to relieve the pain in his back. Aside from affording temporary relief, the treatments have been ineffective. Witness also testified that he no longer enjoys long walks, hunting or fishing trips as he did previously due to the pain in his back. He can no longer perform heavy work either at his place of employment or at home. He spends the half-hour lunch period at work lying on a hard bench to relieve the pain in his back. He can not squat or stoop since after doing so he is unable to straighten up. While at work he wears a back brace.

John Farwick, the only witness called for the defense, testified as follows. Prior to the collision he was standing in the driveway, facing in a westerly direction. It was his intention to cross the path of northbound traffic, turn left and proceed south on Kedzie Avenue. He stopped his vehicle at the sidewalk to check for pedestrian traffic and then proceeded forward, stopping again at the parkway to view vehicular traffic. Northbound traffic on Kedzie Avenue was backed up as far as he could see. The Golik car was stopped at the edge of the driveway, six to seven feet to the left of the witness. Next to the Golik car was a semitrailer truck, the driver of which motioned for him to proceed to make the left turn which his turn signal indicated he wished to make.

As the traffic light on the corner changed, the northbound traffic was afforded an opportunity to move forward. As the car ahead of Golik moved forward, witness also moved, looking to his right to view southbound traffic. No one in the Golik auto signaled him to proceed and he did not look back to his left as he started forward. He never saw the Golik car in motion, did not see it again until the collision. The last time he saw the Golik car there was a space of three to four feet between it and the vehicle immediately ahead. Finally, Farwick testified that he did not sound his horn prior to the collision and that he had approximately seven hundred pounds of cargo aboard. The Golik car tilted up, to the left, when struck.

We consider first plaintiff’s contention that submission of defendants’ special interrogatory was error. In support of this allegation, he argues that the interrogatory was confusing and ambiguous in that it required the jury to consider more than a single question and also that it allowed the jury to consider injuries rather than the collision as being caused by negligence.

The interrogatory submitted reads:

Was the defendant, JOHN R FARWICK, guilty of negligence which was the proximate cause of the plaintiff’s alleged injuries?

This interrogatory was answered “No.”

Plaintiff argues that three questions are asked by this interrogatory, one relating to negligence, one to causation, and one to existence of injuries. We do not find the interrogatory to be confusing or ambiguous. Special interrogatories, to be proper, must relate to some ultimate fact upon which the rights of the parties depend. Golden v. Big Bear Foods, Inc., 102 Ill App2d 237, 243 NE2d 730 (1968). Each of the above questions are evidentiary in nature in that none of them singly are determinative of the rights of the parties. Plaintiff cannot prevail if he was not injured, nor if defendant was not negligent, nor if his injuries were not proximately caused by a negligent act of the defendant. All three items, negligence, causation, and injury are necessary to plaintiff’s case. The absence of one of these items would render the interrogatory improper for failure to relate to the question of ultimate fact. Finally, it is true that in many, if not all, cases where personal injury results from a negligent act or omission the actual physical injury is inflicted by a physical agency other than defendants’ act. Nevertheless, the basis for recovery of damages is the causal connection between the negligent act or omission and the injury sustained. The law is concerned with negligence as the proximate cause, not of some physical force applied against the person injured, but rather the end result; i. e., the injuries themselves. Were this not the case there would be no room in the law of negligence for the defense of contributory negligence. We do not find the interrogatory to be ambiguous or confusing.

We agree with plaintiff, however, that the answer to the special interrogatory and verdict were against the manifest weight of the evidence. Plaintiff presented six witnesses whose collective testimony presented a cohesive and consistent case, and the testimony of defendant Farwick served more to substantiate than discredit it. Farwick admitted that he received no signal to proceed from any occupant of the Golik auto. In addition, he testified that after receiving a signal from another truck driver to proceed he started forward and looked to his right. Never again did he look to the left to ascertain whether the position of the Golik auto had changed. He never saw that vehicle in motion, did not see it again until the collision had occurred.

We find the verdict and answer to the special interrogatory to be against the manifest weight of the evidence. Accordingly the judgment is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

MCCORMICK, P. J. and BURKE, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harold Moody, Defendant-Appellant.
    Gen. No. 54,069.
    First District, Second Division.
    February 3, 1970.

      Gerald W. Getty, Public Defender of Cook County, 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.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Defendant was charged with the unlawful sale of a narcotic drug. At his arraignment Gerald W. Getty, Public Defender, was appointed as his counsel and he entered a plea of not guilty. Three months later, when his cause came on for trial, the defendant withdrew his plea and entered a plea of guilty to a lesser included charge, unlawful possession of narcotic drugs. After being admonished by the trial judge as to the consequences of a guilty plea, the defendant persisted in the plea. The judge then sentenced the defendant to a term of from two years to two years and one day, the minimum sentence which could be given for the crime. (The statute provides that one guilty of unlawful possession of narcotic drugs can be sentenced from two to ten years.)

The colloquy wherein defendant changed his plea was as follows:

Mr. Virgilio: “The State has no objection to accepting a plea to the lesser included offense of possession of narcotics.”
The Court: “Mr. Harold Moody, your counsel advises me you wish to change your plea of not guilty to a plea of guilty to unlawful possession of narcotic drugs. Is that correct?”
Defendant: “Yes, it is.”
The Court: “When you plead guilty you automatically waive your right to a jury trial, you understand that?”
Defendant: “Yes, I know that.”
The Court: “Before accepting a plea of guilty it is my duty to advise you on a plea of guilty to the unlawful possession of narcotics, you may be sent to the penitentiary for a term of years of any number of years not less than two nor more than ten years. Knowing that, do you still persist in your plea of guilty ?”
Defendant: “Yes, I do.”
The Court: “Let the record show the defendant, Harold Moody, has been advised of the consequences of his plea of guilty to the lesser included charge of possession of narcotic drugs, being so advised, persists in his plea. The plea, therefore, will be accepted. There will be a finding of guilty of unlawful possession of narcotic drugs, to-wit, heroin, in manner and form as charged in the indictment. There will be a judgment on the finding.”
[One of the facts stipulated to was that the narcotic involved was heroin.]

Now before this court is the Public Defender’s petition to withdraw as counsel for the defendant on the basis that it is the attorney’s conclusion there is only one issue upon which an appeal can be sought; namely, whether the court fully admonished the defendant as to the import of his change of plea from not guilty to guilty, and that that issue is a frivolous one. The Public Defender felt the trial court fully complied with its duty to admonish the defendant; therefore, an appeal would be without merit and could not possibly be successful. The petition is presented pursuant to the ruling in Anders v. California, 386 US 738.

In compliance with Anders, counsel has advised this court that he finds the case wholly frivolous and has submitted a brief referring to the only aspect of the case which he believes is arguable. Copies of the petition and brief were mailed to the defendant and this court granted defendant time within which to file new points in support of his appeal. The defendant made no response to this ruling. It then became this court’s duty to first examine all the proceedings in the trial court so that we could make our own determination as to whether the case is wholly frivolous. We have done so and have concluded that the case is wholly frivolous, that the petition to withdraw should be granted, and that the conviction should be affirmed.

We believe the trial judge fully complied with his duty when he informed the defendant of the consequences of his plea and informed him of the maximum penalty which could be imposed on him upon the acceptance of his plea, all of which took place in open court. This was in compliance with Ill Rev Stats 1967, c 38, § 115-2, and with Supreme Court Rule 401(b), both of which explain the procedure which should be employed before a court accepts a guilty plea. Defendant was given accurate and complete information as to the consequences of his plea, with the right to change his mind and maintain his plea of not guilty. The trial court acted properly in admonishing the defendant as to the consequences of entering a guilty plea, but the defendant, represented by counsel, persisted in entering a plea of guilty, and the trial judge then accepted it. The sentence imposed was the minimum allowed under the statute.

We have made an independent review of the record and have concluded there is no ground upon which to base an appeal which is not wholly frivolous. Consequently, we are allowing counsel’s petition to withdraw, and are affirming the judgment of the Circuit Court.

Judgment affirmed.

LYONS and BUEKE, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. Harley Budd, Helen Pierce Kelley, and Tap Root, Inc., et al., Defendants-Appellants.
    Gen. No. 53,663.
    First District, Fourth Division.
    February 4, 1970.

      Samuel S. Cohon and Wexler & Wexler, of Chicago, for appellants.
    Raymond F. Simon, Corporation Counsel, of Chicago, Robert E. Wiss, Special Assistant Corporation Counsel, and Earl L. Neal, Assistant Corporation Counsel (Robert E. Wiss, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendants appeal from a judgment in an eminent domain proceeding commenced by the plaintiff, City of Chicago, under the Urban Renewal Consolidation Act (Ill Rev Stats 1961, c 67½, §§ 91.101 to 91.136) for the acquisition of property located at 1762 and 1764 North Larrabee Street in Chicago, Illinois. The case was tried before a jury which viewed the premises and returned a verdict in favor of defendants for $33,500 and a judgment was entered on the verdict.

On appeal defendants contend (1) that the trial court erred in sustaining plaintiff’s objection to defense counsel’s question asking plaintiff’s expert witness to state whether or not his opinion of value constituted just compensation, and (2) that the trial court erred in sustaining plaintiff’s objection to defense counsel’s statement made during closing argument relating to the value of defendants’ business.

The subject property is a parcel of land 58 feet in width by 144 feet in depth and consists of two city lots. The lot located at 1762 North Larrabee is improved with two frame buildings approximately 85 to 100 years old. The first floor of the property is used for a tavern-beer garden business while the second floor is used for apartments. The lot at 1764 North Larrabee is a fenced-in vacant lot which is used as a beer garden.

Plaintiff’s evidence consisted of the opinion of two expert witnesses highly qualified in the field of real estate brokerage and appraisal. The first expert witness described in detail the subject property and testified that in his opinion the highest and best use of the property was for commercial use and that in his opinion the fair cash market value of the property was $25,000.

Plaintiff’s other expert witness had lived in the specific area surrounding the subject property for seven years and had been active in the operation, management and sales of property in this particular area since 1955. He described the history and geography of the area and testified that in his opinion the highest and best use of the subject property was for its present business or commercial and residential use and that the fair cash market value of the property was $26,000.

Harley Budd, a defendant, testified for the defense. He testified that he purchased the building and lot at 1762 North Larrabee under Articles for Agreement for Warranty Deed in August 1964 for $18,500 and that he purchased the property at 1764 North Larrabee in 1966 for $8,500. He made repairs to the buildings at considerable expense and had the vacant lot graded and smoothed. In his opinion the fair cash market value of the property was $140,000.

The defendants contend that the trial court erred in sustaining plaintiff’s objection to counsel asking plaintiff’s expert witness to state whether his opinion of value constituted just compensation. The question to which the objection was sustained was:

Q. “Would you say that this is just compensation for the owner of a piece of property located at 1762-64 North Larrabee, the sum of twenty-six thousand dollars?”

Defendants argue that this ruling was grossly prejudicial “as the jury could only believe from such a ruling by the court that the defendant was not entitled to ‘just compensation/ ” Plaintiff, however, asserts that while an expert witness in an eminent domain proceeding is permitted to give his opinion as to the fair cash market value of the property, the witness cannot express his opinion as to the ultimate issue of just compensation as this is the very issue the jury is to decide. In Gillette v. City of Chicago, 396 Ill 619, 72 NE2d 326, the principal contention made by the appellant was whether or not the court erred in sustaining an objection to evidence of an expert witness upon the ground that the question called for an answer which was the very issue to be determined by the jury. The court at page 623 found that:

As early as Chicago and Alton Railroad Co. v. Springfield and Northwestern Railroad Co., 67 Ill 142, the same question had been before this court for consideration. ... We reversed the case upon the ground that it was an opinion covering the very question which was to be settled by the jury, and so conclusive of it as to leave to the jury no other duty but that of recording the finding of appellee’s witnesses. We used this language: “It amounts to nothing more nor less than permitting the witnesses to usurp the province of the jury. By this we do not mean to be understood as holding that it is incompetent for experts, such as engineers, to give their opinions in this case in respect to matters which may form the proper ingredients of a verdict. But what we mean is, that, where the witness is an expert, and it is competent for him to give an opinion as to such ingredients of a verdict, still it is not competent to ask the opinion of witnesses in such way as to have it cover the very question to be found by the jury.”

In In re Appropriation by the Director of Highways, 120 Ohio App 273, 201 NE2d 889, the State brought an action to appropriate certain lands for a grade separation. Over the objection of the appellant one of the State’s expert witnesses was asked and permitted to testify that $9,703 “would be total just and fair award.” The court at page 895 concluded that:

“. . . If an expert witness were permitted to characterize his testimony in this manner it would be just as logical to permit him to characterize and criticize the amounts testified to by other experts as constituting ‘unfair and unjust’ awards.
“In the case of Fowler v. Delaplain, 79 Ohio St 279, 87 NE 260, it was held:
“ ‘A question to a witness, which calls for his opinion on the precise issue of fact which the jury is sworn to determine from the evidence, is incompetent.’ ”
“It is our opinion that for an expert witness in an appropriation action to be asked and to confirm his opinion as to value as being a ‘total just and fair award’ likewise invades the province of the jury on the precise issue of fact which the jury "is to determine, and that to admit such evidence over objection constitutes an abuse of discretion by the court and error prejudicial to the appellant.”

We find that no error occurred when the trial court refused to permit the expert witness to give his conclusion as to the ultimate issue of just compensatian. We further find that the court’s ruling did not prejudice defendants’ case.

Defendants also contend that the trial court erred in sustaining plaintiff’s objection to defense counsel’s statement made during closing argument relating to the value of defendant Budd’s business. During the closing argument defendants’ counsel stated:

“And, as property owners, you have a conception of what it cost in August of 1967 to put that type of building back into its original state, I would say that that type of business is worth a sum of $140,000 at the present market value as to what they are getting in the Old Town area, or that type of property.” (Emphasis supplied.)
MR. PLATT: “Objection, your Honor.”
THE COURT: “Sustained.”

Defendants argue that this statement was a reasonable inference drawn from the evidence and that the court’s ruling was prejudicial since the jury might infer that defendant Budd’s valuation figure of $140,000 was improper.

The statement made by defendants’ counsel referred to the value of Budd’s “type of business.” However, no evidence was introduced relating to the value of this business. Furthermore, in an eminent domain proceeding where the property sought to be taken is not applied to some special use, the evidence should be confined to the subject property’s fair cash market value, and all evidence of the volume or profits of the business conducted upon the property should be excluded. Forest Preserve Dist. of Cook County v. Hahn, 341 Ill 599,173 NE 763; Department of Public Works and Buildings v. Lambert, 411 Ill 183, 103 NE2d 356; City of Chicago v. Central Nat. Bank in Chicago, 5 Ill2d 164, 125 NE2d 94; and Chicago Land Clearance Commission v. Darrow, 12 Ill2d 365,146 NE2d 1.

During closing argument defendants’ counsel did argue without objection that the fair cash market value for the subject property was $140,000, that values had risen greatly in the Old Town area, that the subject property had been greatly improved since its purchase, and that the subject property was a landmark. Furthermore, the jury was instructed to base their verdict on the testimony, exhibits and view of the premises, that any ruling or remarks made by the court did not indicate the court’s opinion as to the facts, that the jury was the sole judge of the credibility of the witnesses, and that the amount of the verdict had to be within the range of the evidence. After carefully reviewing the entire closing argument we are of the opinion that the trial court’s ruling was proper and did not prejudice defendants’ case.

As we have found no prejudicial error in the proceedings and the jury having returned a verdict within the range of the evidence, the judgment is affirmed.

Affirmed.

STAMOS, P. J. and ENGLISH, J., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Danny Witcher, Defendant-Appellant.
    Gen. No. 53,150.
    First District, Third Division.
    February 5, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer 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 John R. McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Danny Witcher, was charged with the crimes of armed robbery and burglary. After a bench trial, he was found guilty of both crimes, and was sentenced to 2 to 15 years for each crime, both sentences to run concurrently. On appeal, defendant contends that he was not proved guilty of the crimes beyond a reasonable doubt; that the out-of-court identification was so unduly suggestive as to violate due process; that the burglary information was fatally defective in that it failed to allege the possession or ownership of the premises in question; that proof of ownership of the premises was at fatal variance with the information; and that the court erred in imposing separate sentences for crimes arising out of the same conduct.

On April 13,1967, Edmund Kwiatkowski was employed at a Clark Oil Yard and Refinery located at 131st and Kedzie in Blue Island, Illinois. Various company material, including wire, was stored at the yard. At about 10:15 p. m., Kwiatkowski was making his rounds and was in the process of checking the electrical switch building. When he opened the door, a man ran behind one of the panel boards and Kwiatkowski started after him. Another man with a gun told him to stop where he was. There were three men, and they tied Kwiatkowski up and went through his wallet. Clarence Patno, along with another employee of Clark Oil, arrived at work about 11:00 p. m. When they entered the office, their wallets were searched at gunpoint. At trial Kwiatkowski and Patno both identified defendant as the person who held the gun. After Patno arrived, the robbers forced the three employees to push a 400-pound reel of copper wire and load it into a 1957 Buick. The robbers then drove off in the Buick.

When the police arrived, Kwiatkowski gave them the license number of the Buick. He testified that on his way home, he noticed a 1957 Buick with the license number he had given to the police. He went to the police station and returned with two officers. A man whom he identified as defendant was sleeping in the automobile.

Defendant testified that at about 11:00 p. m. on the night in question he was standing in front of a tavern when his brother-in-law pulled up in a 1957 Buick. Defendant asked for a ride home, but the brother-in-law said that he was going into the tavern for a few minutes.

Since the tavern owner would not permit him to enter his establishment, defendant waited in the car and fell asleep. Some police officers woke him up and took him to their car. Defendant also testified that Kwiatkowski was sitting in the car, but was unable to identify him.

The police released him, but a few minutes later another officer apprehended him and forced Kwiatkowski to identify him as one of the robbers. He was taken to the police station, where two other men observed him but were unable to identify him.

Defendant first contends that he was not proved guilty of the crimes, arguing that the identification was weak.

The sufficiency of an identification ordinarily raises a question of credibility which is to be determined by the trier of fact. People v. Jackson, 28 Ill2d 566, 192 NE2d 873 (1963).

In the instant case, two men who had an excellent opportunity to observe the robbers positively identified defendant as one of the perpetrators. Defendant has not pointed out, nor have we been able to find anything contradictory or inconsistent in the testimony of either of these eyewitnesses. We find no merit in defendant’s argument that the State’s failure to call a rebuttal witness left defendant’s testimony that Kwiatkowski was unable to identify him uncontradicted. Kwiatkowski’s testimony as to the manner in which he identified defendant was clearly contradictory to the testimony of defendant. An issue of fact was raised, and the trier of fact believed Kwiatkowski rather than defendant. We can find no error in that determination.

Defendant next contends that the identification procedure was highly suggestive so as to render the in-court identification by Kwiatkowski inadmissible. He argues that the one-man showup was unconstitutional and that the repeated confrontation was most prejudicial.

The lack of a lineup, in light of the circumstances, was not prejudicial to defendant. See Stovall v. Denno, 388 US 293 (1967). Kwiatkowski observed the automobile in question shortly after the crimes had been committed and led the police to its location, thus himself initiating the arrest and identification. There was nothing improper in that procedure. There was a repeated confrontation between Kwiatkowski and defendant only if defendant’s testimony concerning the events were to be believed. However, as we have stated, the trial court did not abuse its discretion in rejecting defendant’s testimony and in believing Kwiatkowski.

Defendant also contends that the burglary information was fatally defective in that it did not allege possession or ownership of the premises in question.

The information in the instant case charged defendant with the crime of burglary “in that he without authority knowingly entered into the Clark Oil Refining Building with intent to commit therein a theft.”

It is well settled that an indictment for burglary must allege the ownership of the building in question; otherwise it is fatally defective. The People v. Picard, 284 Ill 588, 120 NE 546 (1918); The People v. Walker, 7 Ill2d 158, 130 NE2d 182 (1955); The People v. Furman, 26 Ill2d 334, 186 NE2d 262 (1962); People v. Jamison, 92 Ill App2d 28, 235 NE2d 849 (1968).

We find that the information in the case at bar failed to allege either a possessory or ownership interest in the premises in question, and in the light of the cases above cited, we must conclude that the information was fatally defective. The only possible reference made to possession or ownership was that it was the Clark Oil Refining Building. However, merely setting forth such a descriptive name was clearly inadequate to indicate ownership or possession of the building. Nor is the omission corrected by inserting the address of the premises in the information.

A case cited by the State, The People v. Stewart, 23 Ill2d 161, 177 NE2d 237 (1961), is distinguishable from the case at bar. In that case the information charged that the defendant unlawfully entered a building “then and there occupied and in the possession of ‘Golden Cream Dairy Inc.’ ” While reiterating the principle that it was necessary to allege that the building entered was in ownership or possession of another, the court held that the complaint obviously did so charge. However, in the instant case, the information failed to allege any possessory interest in another person or entity.

Since we find that the burglary information was fatally defective, it is unnecessary to consider defendant’s other assignments of errors concerning the burglary conviction.

Accordingly, the judgment of conviction as to armed robbery is affirmed; the judgment of conviction as to burglary is reversed.

Affirmed in part, reversed in part.

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