author: MORAN, J.

text:
    Joel J. Sprayregen, Plaintiff-Appellee and Cross-Appellant, v. American Indemnity Company, Defendant-Appellant and Cross-Appellee.
    Gen. No. 52,185.
    First District.
    February 3, 1969.

      Berchem, Schwantes & Thuma, of Chicago (Richard Owen Young and Michael A. Dunn, of counsel), for appellant.
    Aaron, Aaron, Schimberg & Hess, of Chicago (Joel J. Sprayregen, of counsel), for appellee.
   MORAN, J.

The plaintiff, an attorney, was a beneficiary under a land trust which held title to property located at 4221-31 West Cermak Road in Chicago. This property was covered by a policy of liability insurance issued by the defendant, American Indemnity Company and the plaintiff was an insured under this policy.

One Elector Ralph filed suit against the City of Chicago for injuries allegedly received in a fall at 4233 West Cermak. An amended complaint was filed against Cosmopolitan National Bank, the trustee of the land trust. This amendment alleged that the bank possessed and had control over the building located at 4233 West Cermak, “including the appurtenances thereto, specifically a certain wooden projection in the front of said building which did then and there block off a portion of the public sidewalk at that address.” This amendment went on to allege:

“6. That on to-wit the 18th day of November, 1962, plaintiff who was then and there a pedestrian passing upon and along and over the sidewalk in front of 4233 West Cermak Road, Chicago, Illinois, was then and there caused to move from her direct course on the said sidewalk to a narrow lane or passage upon which there was an existing defect in the said sidewalk as more particularly described in Count I of this amended complaint, . . .

After being advised of the suit and being made a party thereto, the plaintiff notified the insurance company of the pending suit and requested that it undertake the defense. The insurance company refused to assume the defense because the premises, as described in the complaint, were not covered by the policy.

The plaintiff then wrote another letter to the law firm representing the insurance company stating:

“. . . I submit that the enclosed complaint, amended complaint, and letter and notice from the Cosmopolitan National Bank make clear that the premises involved are those that were covered under the policy. Neither the Bank nor the beneficiaries had any interest in 4233 Cermak Road, and thus the property involved is the property which your client insured. You have therefore declined to defend because of a clerical error made by the plaintiff’s attorney. Or, if this is not a clerical error, and the accident occurred at 4233, then there is a complete defense which you are in effect saying should be asserted by the assured at its own expense. I must respectfully ask if you consider this a fair manner in which to treat a policyholder who fulfilled its obligations to pay premiums because it felt the insurer would meet its obligations to provide a defense to a lawsuit arising out of the operation of the insured premises.
“If I were to call the attorney for the plaintiff and advise him of his error, then he would certainly amend his complaint to correct the address. I shall not do this at the present time because I have advised my clients that until it is absolutely certain that the Insurer is failing to fulfill its obligations we should not do anything which might conceivably be said to prejudice the defense of this case. I can not believe it is in the best interest of a reputable insurance company like your client to give its assured the Hobson’s choice of either cooperating with the plaintiff or taking upon itself the burden of defense.”

The plaintiff again wrote to American Indemnity Company and made a similar plea. The insurance company in refusing to defend, stated:

“Dear Mr. Sprayregan:
“Since receiving your letter of May 13, 1966, enclosing a Summons in the above case together with the Second Amended Complaint at Law, we have given careful consideration to your request that we defend the suit. We have also conducted additional investigation and are convinced that the accident actually did occur at the place alleged in the Second Amended Complaint which, as you know, involves an area not covered by our policy of insurance.
“We are quite certain that there has been no mistake in describing the area where the accident occurred and are equally sure that the plaintiff would be ill-advised to make any change at this late date with respect to the place of accident. As you know, the location pleaded was first given in the statutory notice to the City of Chicago and has been repeated three times in the successive Complaints filed in this case. In addition to that, we have the firm commitment of the plaintiff herself to our investigator that the accident did occur at the place alleged in the various pleadings.
“Under the above circumstances, we question whether you will consider it desirable to suggest to the plaintiff’s attorney that there is any ‘error’ with respect to the place of the accident. If the plaintiff’s attorney is persuaded to make such a change at this late date, he would, of course, run the risk of destroying such claim as he has against the City of Chicago, which is the principal target of his suit.
“In any event, since we are convinced that the accident actually occurred at the location alleged in the various Complaints, we return the Summons and Seconded (sic) Amended Complaint to you so that you may file your pleadings before their due date— June 10,1966.
Very truly yours,”

The plaintiff then represented himself and was able to obtain an order dismissing the complaint. He then demanded that the insurance company reimburse him for the fees and costs incurred in defending the action, and when the demand was refused, the plaintiff instituted the present action. At the trial the insurance company did not object to the amount claimed but denied that it had any obligation to reimburse the plaintiff. The trial court entered judgment for plaintiff for $2,273, plus costs.

The insurance company appeals contending that since the pleadings alleged an accident at a location which was not covered by the policy, the plaintiff was not entitled to a defense under the terms of the policy. The plaintiff cross-appealed from the trial court’s refusal to allow an attorney’s fee of $500 under the provisions of chapter 73, section 767, Ill Rev Stats (1967), wherein such remedy is authorized if it is found that the insurance company acted vexatiously and without reasonable cause.

The American Indemnity Company’s policy covering the premises at 4221-81 West Cermak states that the company agrees:

“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined.”

The definition of “hazards” related to the premises is “(t)he ownership, maintenance or use of the premises and all operations necessary or incidental thereto.”

The policy defines premises as:

“e. Definitions.
“(a) Premises. The unqualified word ‘premises’ means the premises designated in the declarations and includes the ways immediately adjoining on land.”

The policy provisions relating to defense state:

“II DEFENSE, SETTLEMENT, SUPPLEMENTARY PAYMENTS.
“With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the company shall:
“(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient; . . .

The amended complaint stated that the bank had control over the building located at 4233 West Cermak “in-eluding the appurtenances thereto, specifically a certain wooden projection in the front of the building which blocked off a portion of the sidewalk.” The amended complaint went on to say that because of this the plaintiff was forced to move from her direct course on the sidewak to a defective portion of the sidewalk.

In Sims v. Illinois Nat. Cas. Co., 43 Ill App2d 184, 193 NE2d 123, the insurance company refused to defend on the grounds that the plaintiff was an employee of the owner of the car and thus not covered by the policy. The complaint alleged that the plaintiff was a passenger in the car. The Appellate Court held that even though the allegations did not negate the possibility that the plaintiff might also be an employee the insurer is obligated to defend if there is, potentially, a case under the complaint within the coverage of the policy. That court quoted with approval from Brooklyn & Queens Allied Oil Burner Service Co. v. Security Mut. Ins. Co., 27 Misc2d 401, 208 NYS2d 259:

“It is well settled that it is the obligation of the insurer to defend an action brought against its insured where the complaint in that action alleges a state of facts within the coverage of the policy, irrespective of the ultimate liability of the insured. (Citing cases.) Moreover, even where it appears, as here, that the complaint in such an action does not state facts with sufficient definiteness to clearly bring the case within or without the coverage of the liability policy, the insurer is nonetheless obliged to defend the action if there is, potentially, a case under the complaint within the coverage of the policy; or, stated in other words, where there is doubt as to whether or not the allegations of the complaint in the action against the insured state a cause of action within the coverage of the policy sufficient to compel the insurer to defend the action, such doubt will be resolved in favor of the insured. (Citing cases.) (Emphasis ours.)”

A reading of the complaint in the instant action indicates that there is at least a potential cause of action stated. The insurance company states that because the complaint alleges the scene of the injury to be 4233 West Cermak, a location not covered by the policy, it has no duty to defend. However, the amended complaint also alleges that a wooden projection in front of that address blocked off a portion of the sidewalk. At the trial the plaintiff testified that there had been a wooden projection in front of the premises at 4221-31 West Cermak. Moreover, the policy definition of insured premises includes the ways immediately adjoining. There is no doubt but that, potentially at least, it could be found that the premises at 4221-31 caused or contributed to the alleged injury. The fact that the complaint alleges the scene of the injury to be 4233 West Cermak does not preclude potential liability on the part of the possessor or occupant of 4231 West Cermak.

The duty to defend is considered broader than the duty to pay. Allstate Ins. Co. v. Gleason, 50 Ill App2d 207, 214, 200 NE2d 383; McFadyen v. North River Ins. Co., 62 Ill App2d 164, 209 NE2d 833. Mc-Fadyen also states the rule that the insurer’s duty to defend is “predicated upon the allegation in the complaint . . . and when such allegations state facts which bring the case within, or potentially within, the coverage of the policy, the insurer is from this time on unjustified in not defending the insured.” Id. at 836.

Our decision in holding that the complaint states a cause of action which potentially could impose liability on the plaintiff is not in conflict with the Farmers Elevator Mut. Ins. Co. v. Burch case, 38 Ill App2d 294, 187 NE2d 12, relied upon by appellant. In that case a nuisance was alleged and the policy insured against accidents only. In the present case, however, the allegation of an injury at 4238 does not preclude liability on the part of the premises located at 4231 West Cermak. There is no doubt that if the claim against the plaintiff were to prevail, that the defendant insurance company would be bound to indemnify, since such liability could arise solely from his role as owner of beneficiary of the premises.

We next consider the cross-appeal wherein the plaintiff contends that he should be allowed $500 in attorney fees for the insurance company’s refusal to pay the cost of the defense. The statute (c 73, § 767, Ill Rev Stats) provides that the court may allow attorney fees as a part of the costs in the action if the company’s refusal was vexatious and without reasonable cause. A determination of what constitutes vexatious and unreasonable refusal is a matter for determination by the trial judge. Howard Foundry Co. v. Hartford Ins. Co., 222 F2d 767. There is sufficient evidence in the record to support the trial court’s finding that the refusal to defend was not vexatious and unreasonable.

Accordingly, the judgment of the lower court is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: ALLOY, P. J.

license: Public Domain

text:
    Harry Keller, Plaintiff-Appellant, v. Continental Distributing Co., Inc., a Corporation, Defendant-Appellee.
    Gen. No. 52,870.
    First District.
    February 3, 1969.

      Morris A. Gzesh, of Chicago, for appellant.
    Eudnick & Wolfe, of Chicago (Lester D. Foreman, of counsel), for appellee.
   ALLOY, P. J.

On March 4, 1964, defendant Continental Distributing Co., Inc., a corporation, filed an action in the Circuit Court of Cook County to recover judgment by confession on a judgment note of plaintiff, Harry Keller, which was executed on August 14, 1961. The standard form of confession of judgment complaint, answer, etc. was used by Continental, and was fully completed with the exception of an omission to have an attorney sign the form waiving service and confessing the amount due Continental in the customary manner. This omission was not noticed by either the clerk of the court or the judge. Judgment was entered in the cause on March 5, 1964. On March 23, 1964, an execution was issued on the judgment which was returned “no property found.” On June 19, 1964, plaintiff Keller contends a levy was directed against his property, and on July 3, 1964, personal property of plaintiff Keller was levied against, although the property was left with Keller. Defendant Continental asserts that there was no actual levy as against the property of Keller, but rather that the procedure was one of a “household appraisal” where the bailiff does not assume custody of the property or post any sign or proceed to sell such property. On July 9, 1964, Continental learned for the first time of its failure to have an attorney sign the confession of judgment form. Upon discovering this omission, Continental immediately withdrew the levy or “household appraisal.” On July 13, 1964, the court vacated the judgment of Continental and gave Continental leave to file an amended statement of claim. Such amended statement of claim was filed and the cause is apparently still pending in the Circuit Court of Cook County.

Thereafter, plaintiff Keller in the instant case filed an action for actual and exemplary damages against defendant Continental, alleging that he incurred attorney’s fees in defending the action, and suffered embarrassment and mental anguish due to the levy on his property; and also that he suffered damages through interference with his right to dispose of his property. The trial court dismissed such complaint on motion by defendant. The trial court found that the second amended complaint of plaintiff failed to plead a cause of action as against defendant. Defendant elected to stand by his pleading, following which the action was dismissed. Plaintiff Keller appealed to this Court.

The complaint of plaintiff does not definitively classify or disclose in its allegations the type of action which is being pursued (e. g. whether malicious prosecution, or abuse of process). It seems to be based on a theory that plaintiff has a cause of action because defendant attempted to enforce a void judgment, and in so doing, wrongfully levied upon plaintiff’s personal property. Plaintiff contends that White v. Jones, 38 Ill 159, is a precedent for such action. Such case simply concludes that if there is no proper entry of appearance or service on a defendant, there is no jurisdiction over defendant, and any judgment is thus void and all subsequent proceedings are void. Defendant does not contend that the judgment obtained in the present case was a valid one. The mere fact that Continental unknowingly proceeded upon the void judgment, does not automatically mean that the conduct of Continental was wrong in such manner as to make the consequences thereof actionable by plaintiff. In McDaniel v. Fox, 77 Ill 343, cited by plaintiff, the court was dealing with a levy on a fraudulent judgment. The conclusions in that case are not, in any manner, applicable in view of the conduct of the defendant in the case before us.

Plaintiff also cites Smith v. Hughes, 24 Ill 270, which concludes that a levy is valid even if defendant still retains possession of the property levied against. While there is a question in the instant case whether there was even a levy, the Smith v. Hughes case does not lead to the inevitable conclusion that the mere recital of the making of such levy, without knowledge of the invalidity of the judgment, vests plaintiff with a cause of action.

While the motion to strike admits all facts which are properly pleaded, it does not admit the description of defendant’s conduct which plaintiff characterized as “reckless,” “wrongful,” and “unjustified.” The only fact alleged in the instant case was the failure to obtain the signature of an attorney on a confession of judgment. No facts are alleged which show any reckless conduct in this connection (Schroeder v. Busenhart, 80 Ill App2d 431, 225 NE2d 702). As stated in Stedman v. Spiros, 23 Ill App2d 69, 161 NE2d 590 (at page 81):

“The motion to strike or dismiss admits the truth only of facts properly pleaded, as distinguished from conclusions, and every allegation is to be taken most strongly against the pleader.”

The Cook County trial court could have taken judicial notice of the procedure of having a disinterested attorney sign a confession of judgment document and the court could have concluded, reasonably, that such failure to obtain the signature was not in itself reckless, malicious, or wrongful, but was merely an oversight. Defendant had nothing to gain by failing to obtain the signature (which could be readily obtained) and it is clear that defendant did not obtain the judgment knowing that the signature was missing. The complaint, therefore, is reduced to the simple allegation that defendant commenced simply to enforce a judgment, which it later discovered was void. It is noted that immediately upon discovery of the omission to have the signature of counsel, defendant abandoned all efforts to enforce the judgment.

If the theory of plaintiff was that the complaint stated a basis of an action for malicious prosecution, then such complaint could not be sustained. In an action for malicious prosecution, plaintiff must show that the previous suit terminated in plaintiff’s favor; that there was no probable cause for the proceeding; and also that there was malice or knowledge on part of the parties instituting the first suit that it was not properly founded (Schwartz v. Schwartz, 366 Ill 247, 8 NE2d 668; Smith v. Michigan Buggy Co., 175 Ill 619, 51 NE 569). The record fails to show any of the necessary elements as a foundation for a cause of action for malicious prosecution. It is apparent that a proceeding was not terminated in favor of Keller, plaintiff, in the cause before us since it is still pending in Cook County. Even if there was an allegation of termination in favor of plaintiff, the trial judge could have taken judicial notice that the matter was still pending in the Circuit Court. There was no allegation that the suit was brought without probable cause. Obviously, but for the omission of the signature of a disinterested attorney, which could have been obtained easily, the judgment would have been valid. An allegation of a failure to obtain such signature does not amount to an allegation of lack of probable cause for bringing the action.

The only other apparent theory upon which plaintiff might have predicated his action is that of abuse of process. In such situation defendant commits that tort only when he uses regular legal process in such way as to obtain some collateral benefit outside the scope of the action in which the process was used. Abuse of process has been defined by the courts in this State as “the misuse of proper process to effect an object not within its proper scope” (Ammons v. Jet Credit Sales, Inc., 34 Ill App2d 456, 462, 181 NE2d 601). The courts in Illinois have held that there are two necessary elements in such action (1) the existence of an ulterior purpose, and (2) an act in the use of legal process not proper in the regular prosecution of the proceedings (Dixon v. Smith-Wallace Shoe Co., 283 Ill 234, 119 NE 265). These same two essentials were outlined in the case of Coplea v. Bybee, 290 Ill App 117, 8 NE2d 55, which plaintiff cites in his brief. Neither of the elements were shown by the record in the instant case. The basis of an action for abuse of process is that defendant intentionally or wilfully used the legal process for an improper purpose. This element is not present in the instant case and is not shown by the record.

It is, therefore, apparent in this case that the judgment was void due only to an oversight by defendant Continental. The courts recognize that obtaining a signature of an attorney in a confession of judgment procedure, is normally a routine ministerial procedure. This step, obviously, would not have been omitted knowingly. It is clear in the case before us that as soon as defendant learned the signature had been omitted, it withdrew all further proceedings, and indicated clearly by its actions that it had no knowledge of the failure to obtain the signature. On the basis of the record before us, therefore, we must conclude that the order of the Circuit Court of Cook County was proper and should be affirmed.

Affirmed.

STOUDER and SCHEINEMAN, JJ., concur.


text:
    Daniel Bishop, a Minor, by His Father and Next Friend, Austin Bishop, Plaintiff-Appelant, v. Sears, Roebuck and Co., a Corporation, Defendant-Appellee.
    Gen. No. 53,136.
    First District.
    February 3, 1969.

      Harold H. Margules, of Chicago (Charles T. Booher, Jr., of counsel), for appellant.
    Arnstein, Gluck, Weitzenfeld & Minow, of Chicago (John F. McClure and Paul L. Leeds, of counsel), for appellee.
   ALLOY, P. J.

A summary judgment in favor of Sears, Roebuck and Co. was entered in an action instituted by Daniel Bishop, a minor, by his father and next friend, Austin Bishop. The complaint against defendant alleged that the minor, aged 4years, sustained injuries when he fell from a “retaining wall” between defendant’s parking lot and a sidewalk. The amended complaint alleged substantially as follows:

(1) that plaintiff was exercising due care;

(2) that defendant was under a duty to keep the retaining wall between the parking lot and the sidewalk of the store in a reasonably safe condition;

(3) “that said retaining wall between the sidewalk and the parking lot was so attractive, alluring and tempting to children of tender years as to amount to a strong inducement to children or an implied invitation to them to play with, and upon, and be around said retaining wall.”

(4) “that said retaining wall was long prior to and then and there situated at a place where it would be readily seen and observed by a person or persons on the sidewalk or street.”

(5) that the wall was constructed to support a fence although there was no fence on it;

(6) that the wall was situated where children were in the habit of playing and walking on said wall and the defendant knew or should have known this;

(7) that ordinary care on part of the defendant would require that the defendant maintain a watchman around the wall to prevent children from playing on the wall;

(8) that the plaintiff walked on said wall as a consequence of being attracted to such wall and that he fell off the wall and injured himself.

Defendant filed a motion for summary judgment together with an affidavit which contained excerpts from a discovery deposition of Mary Bishop, the mother of plaintiff, who was with him at the time of the accident. The mother’s deposition showed that she was walking down the sidewalk with the plaintiff and another son, and that plaintiff hopped up on the ledge and she first observed him as he fell off the ledge or curb. She described the “wall” where plaintiff hopped on it and fell off as being “less than a foot high” and “11 or 12 inches wide.” It was made of concrete.

On appeal in this ease, the plaintiff-appellant contends that there were two issues of fact which required determination by a jury. The first, being the allegation of negligence of defendant in maintaining the wall and, secondly, whether the retaining wall constituted an attractive nuisance. In determining whether the action of the trial court in entering a summary judgment was proper we consider that all of the well-pleaded allegations of the complaint together with all other inferences to be drawn therefrom are taken as true (Landman v. M. Susan & Associates, Inc., 63 Ill App2d 292, 293, 211 NE2d 407).

In analyzing the complaint filed in this cause it is clear that there are no factual allegations which would support a cause of action based upon negligence in merely maintaining the wall or the curb. There was no allegation that the wall was in any manner defective. Plaintiff’s allegation that the wall was so constructed that a fence could be put on top of it and that no such fence was yet upon the wall, was not in itself enough to establish a factual allegation that defendant was negligent in failing to install a fence. There is nothing in the pleadings which indicates that the failure to install a fence, if a fence were to be installed, had anything to do with the incident and injury which occurred. So far as the complaint is concerned it simply asserts that there was a wall or curb and that a fence could be put on top of it. The same allegation could be made about any curb or wall. It appears from the complaint that the curb or wall was designed to separate the parking lot of defendant from the public sidewalk. It was apparently designed to keep automobiles from rolling onto the paved sidewalk. We find nothing in the allegations relating to the curb itself upon the basis of which it could be asserted that defendant was negligent.

This leaves as the only possible theory under which the complaint could be sustained, the attractive nuisance theory. Plaintiff cites the case of Kahn v. James Burton Co., 5 Ill2d 614, at 625, 126 NE2d 836, where the court states:

“It is recognized, however, that an exception exists where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. (Wagner v. Kepler, 411 Ill 368.) The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child. Whether the lumber pile was sufficiently attractive to entice children into climbing upon it, whether its condition would involve danger from such activity, and whether the contractor should have anticipated the probability of the accident, were matters for determination by the jury. City of Pekin v. McMahon, 154 Ill 141.”

In this case the court clearly pointed out that there must not only be an attraction to a child, but there must also be a hazardous condition on the property dangerous to children, which was reasonably foreseeable by the property owner. In the cause before us, while the small curb might have been an attraction to children, there was not a sufficient factual allegation in the complaint to establish that it was a hazardous condition foreseeable by defendant. A wall of less than a foot in height would not presumptively constitute a hazardous condition dangerous to children.

In Landman v. M. Susan & Associates, Inc., 68 Ill App2d 292, 211 NE2d 407, the child had suffered an eye injury when he was engaged in throwing sand with another child in a sandpile at a construction site. In dismissing the complaint in that case, the court stated (at page 296):

“An essential element of liability is missing in the present case, since the injury was not the result of any hazard or danger inherent in the pile of sand, in its substance, or in its location. In the Kahn case, the injury was caused by lumber being insecurely piled.”

The court then continues (at page 297):

“A pile of sand, whether located on public beaches, in sand dunes, or at construction sites, is unquestionably attractive to children, and many parents encourage them to play on sand piles. But being an attractive agency alone is not sufficient to subject the owner to liability for injuries to children who play on a sand pile. There must be some other factor, either in its piling or its location, such as is likely to, or will probably result in injury to those attracted to it.”

Since the curb in the instant case served a very practical and, presumably, necessary purpose in keeping cars from rolling onto the sidewalk, and defendant could possibly have been held to be negligent in failing to install the curb, it is difficult to see how this curb alone could be classified as an attractive nuisance under the definition in the Kahn and Landman cases referred to. To require that someone be present to patrol the curb to see that children do not step or walk on the curb, it appears to us, would impose an onerous burden upon the landowner far beyond any reasonable requirement consistent with the facts.

In Krakowiak v. Sampson, 85 Ill App2d 71, 229 NE2d 578, a more dangerous condition than the sand pile was involved. The defendant in the Krakowiak case had piled up upon a lot large mounds of earth and children ran up and down on these mounds. Plaintiff was hurt when she ran over one of the piles and struck an overhanging tree branch. The complaint was dismissed by the trial court, and the Appellate Court, in affirming such dismissal, stated (at page 74):

“Moreover, we do not see how either the overhanging tree branches alone or with the mounds of earth could have been reasonably foreseen to be source of danger or harm to someone like the plaintiff, Melissa Krakowiak.”

By the same token, in the case before us, we do not believe that defendant could reasonably have foreseen that the installation of the curb or retaining wall in the instant case would be a source of danger or harm to someone like the plaintiff in this cause. A curb less than a foot high and twelve inches wide could hardly be classified as something hazardous or inherently dangerous to children. Whether we label this as the “attractive nuisance” doctrine or simply determine whether a structure or condition attractive to children is such that harm from its installation or existence was reasonably foreseeable (as stated in the Krakowiak v. Sampson case, supra) the basis of liability must be some negligent act or omission to protect children against what must be considered as a reasonable or probable danger to immature children. If we were to invoke that doctrine on the basis of the simple existence of the curb in the case before us, then it is difficult to conceive of any condition which might not be, theoretically, within the scope of this doctrine. The doctrine was never determined to be this broad, as noted in the case of Kahn v. James Burton Co., supra, but was always predicated on the consideration of reasonable foreseeability of harm to children. Tested in the light of such rationale, the trial court was justified in dismissing the complaint in the instant case.

On the basis of the record before us, we must conclude that the trial court properly entered summary judgment in favor of defendant since there was no genuine issue of material fact to show that defendant was at fault. The judgment of the Circuit Court of Cook County will, therefore, be affirmed.

Affirmed.

STOUDER and CULBERTSON, JJ., concur.


author: MR. JUSTICE SMITH

text:
    Ruth C. Donnelly, Plaintiff-Appellant, v. Arta Naum, et al., Administrator With the Will Annexed of the Estate of Adam Naum, Deceased, Defendants-Appellees.
    Gen. No. 53,201.
    First District.
    February 3, 1969.
    Arthur Abraham, Harry J. Myerson, and Phillip L. Howard, of Chicago, for appellant.
    Daniel D. Glasser, of Chicago, for appellees.
   MR. JUSTICE SMITH

delivered the opinion of the court.

Plaintiff’s suit to specifically enforce a contract to make a will in her favor was dismissed for want of equity. In the Chancellor’s view as specifically stated in his decree, the services rendered by the plaintiff were petty and the alleged contract was unfair, unjust, and unconscionable. The Master in Chancery had recommended specific performance and overruled objections to Ms report. These objections were permitted to stand as exceptions before the Master and were argued extensively and sustained. In this court, plaintiff-appellant insists that the Master saw, heard, and observed the witnesses and neither the trial court nor this court should lightly substitute its judgment for that of the Master on issues of fact or credibility of witnesses. We don’t. What the Master saw, heard, and observed, taken as true, is woefully lacking in those elements which prompt a court of equity to enforce a contract to make a will to avoid manifest injustice and to avoid making the Statute of Frauds an instrument of fraud itself. Wessel v. Eilenberger, 2 Ill2d 522, 119 NE2d 207; Burke v. Burke, 12 Ill2d 483, 147 NE2d 378.

Adam Naum was an Albanian, had a wife and children behind the Iron Curtain in Albania, had worked as a busboy for the Chicago Athletic Club since 1980, had annually sent some $500 or $600 per year to his family, lived with a cousin in Chicago, became a naturalized citizen in 1944, and executed a will in 1953, leaving all of his property to his wife and children. He died suddenly in 1965 and his 1958 will was admitted to probate.

In 1956, the plaintiff came to work as a waitress at the Chicago Athletic Club. The evidence suggests a strong friendship developed between the plaintiff and the decedent. Adam assisted in setting up her tables, kept the water glasses and coffee cups of her customers filled, provided them with matches and “hustled” for plaintiff’s patrons first and for the others if he had time. She, in turn, would lighten his trays, sew on a button now and then, give him cigarettes, provide an aspirin when he had a headache, and they would walk in the park or go for coffee or a beer or to the public library during their two-hour break between shifts. She went with him to assist in obtaining his social security when his compulsory age retirement at the Chicago Athletic Club was imminent. Plaintiff lived with her two children and there is no evidence that Adam was ever in her house, ever visited with her at any time during weekends, or ever saw her except during his employment hours at the Chicago Athletic Club and the two-hour interval described. She met his cousin with whom he lived for the first time at the funeral home after Adam’s death. Thus far therefore we have nothing but two good friends each helping to make life a little more pleasant and enjoyable for the other.

In 1962, the plaintiff appeared in the employees’ lounge and announced that she was leaving Chicago and returning to Texas. Adam protested this rather bitterly according to the witnesses, suggested that she couldn’t do that to him and stated that if you will stay and take care of me the rest of my life, I’ll make a will and leave everything to you. A few days later, plaintiff said she had thought it over and that she had decided to accept Adam’s proposition and stay in Chicago. The same friendly routine continued until his unexpected death during his vacation in 1965. There was no change in the relationship briefly described above and the services rendered by the plaintiff were substantially the same if we ignore evidence that is conflicting as to whether she did his weekly wash for him both before and after 1962.

The difficulty with the plaintiff’s position is that she alleged one contract in her complaint, a different contract in her claim filed in the probate court and her statements after Adam’s death contradicted both of them. Plaintiff’s complaint alleges that the promise of Adam was in consideration of the promise by her that if she would stay with him and “look after him for the rest of his life” and provide for his wife and son in Albania, that he would leave to her ... all of his property and estate and would make a will to that effect. The testimony in support of this contract has not one single word of testimony concerning the care of the wife and the son in Albania. She likewise alleged that she would fully carry out her promise and agreement and provide for the widow and son if she could get funds into Albania where they reside. There is no testimony whether this was to be all or only a part of the estate. In her claim filed in the estate no mention is made of the wife and son, but she does allege in that claim that contrary to his contract with her he left a will leaving all of his property to the wife in Albania. In the Burke case cited above, it was pointed out specifically that a party to a suit, whether it be in law or in equity, cannot have relief under proofs without allegations or allegations without proof in support thereof. Just what the contract was, we cannot tell from this record. Further doubt is east upon what the contract was or was to be by plaintiff’s conversations with others and with a letter to the widow after Adam’s death.

The lawyer who prepared the will was present at a conversation with the executor named in the will, the plaintiff, and one other party shortly after Adam’s death. The discussion was about the property of Adam. They all went over to a restaurant in Mrs. Donnelly’s automobile and conferred about the estate. She asked to see the will. The attorney asked her what her interest in it was and she said “none at all. I merely am a friend of Adam Naum’s and I want to help his widow. I want to get all of this money together and send it to her. I don’t want any part of it.” Also in a letter to the widow, the plaintiff stated that she was “doing everything possible to keep my promise to Adam and get this money so that I can send it to you.” This letter contains a certification by four people as to plaintiff’s honesty, integrity and veracity and the certification concludes that “we want to make sure that Adam’s family is taken care of.” These are the same people who testified in court to the alleged contract. The statements made to the lawyer by her and in the letter to the widow by both plaintiff and her witnesses are statements wholly inconsistent with a claim that a contract existed between her and Adam to make a will giving all of the $40,000 estate to the plaintiff. These contradictions we may consider. 69 ALR 214. We have had no case cited nor have we been able to find one where the circumstances here shown have warranted the enforcement of an oral contract to make a will or supported a claim for compensation.

So we have carefully scrutinized the evidence in this record as we must, Moreen v. Carlson’s Estate, 365 Ill 482, 6 NE2d 871, to find a contract clear, convincing, definite, and unequivocal as it should be, Wessel v. Eilenberger, 2 Ill2d 522, 119 NE2d 207, In re Knight’s Estate, 51 Ill App2d 198, 200 NE2d 916, supported by some showing that the plaintiff made some unusual sacrifice or substantial change to her detriment, physical or financial as she alleged, induced by the contract, Linder v. Potier, 409 Ill 407, 100 NE2d 602; Yager v. Lyon, 337 Ill 271, 169 NE 222; Pocius v. Fleck, 13 Ill2d 420, 150 NE2d 106; Jatcko v. Hoppe, 7 Ill2d 479, 131 NE2d 84, that compels specific performance of a contract to make a will so that a fraud or injustice can be avoided. Such a contract is nowhere in this record.

The will of Adam Naum now in probate takes care of the widow of Adam. Plaintiff, in her statement to the lawyer and in the letter to the widow, and four of her principal witnesses said this is what they wanted done. So be it. Decree dismissing the suit for want of equity is affirmed.

Affirmed.

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


author: PRESIDING JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Isaac Green, Defendant-Appellant.
    Gen. No. 52,045.
    First District, Second Division.
    February 4, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eddie B. Boyd (Impleaded), Defendant-Appellant.
    Gen. No. 52,371.
    First District, Second Division.
    February 4, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, Shelvin Singer, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

Count I of the indictment against Eddie Boyd, defendant, charged him with the offense of attempt to commit robbery, and Count II with the offense of aggravated battery. The case was tried before a jury; defendant was found guilty on both counts of the indictment, and sentenced to one to five years in the penitentiary on each count, the sentences to run concurrently. In this court the defendant contends he was not proved guilty beyond a reasonable doubt, and that it is error to convict a defendant of two crimes arising out of the same transaction.

On December 31, 1966, John O’Dea, complaining witness, and Eddie Boyd, the defendant (accompanied by Leon Davis) were passengers on an elevated train. There is no question that a fight took place in the car in which the three were seated. The question to be determined by the trier of fact was the series of events leading up to the fight.

O’Dea testified that he had left his home at about 2:00 a. m., and had gone to a tavern at 75th and Exchange, where he had two beers; that after about 20 minutes he took a bus to 63rd and Stony Island and boarded the elevated train at about 4:00 a. m., on his way to visit a friend. The defendant and Davis were sitting across the aisle from O’Dea and began making remarks to him, which he ignored. The defendant crossed the aisle and asked O’Dea to give him a dime. When he replied that he didn’t have a dime the defendant told him he had better give it to him or he would take all his money from him. When O’Dea continued to ignore him, the defendant returned to Davis, and after a conversation, both men crossed the aisle to O’Dea, demanding all of his money and threatening to take it. When he refused, the two young men started beating the 57-year-old O’Dea, calling him an indecent name and saying, “Kill the - ■-.” They continued beating him, banging his head against the window until the window was shattered and he was knocked insensible. He suffered multiple lacerations about the face, several cuts on the head, dentures broken beyond repair, lacerations inside his mouth, and two black eyes.

C. T. A. Police Officer Frank Kretz testified that he and his partner, James Crossin, were at the Cermak Road “L” Station waiting for a train. As it pulled in he noticed that one of the windows was broken and that there was a fight going on in the train. He saw one man holding the complaining witness by the back of the neck and punching him while another man stood in front of the complaining witness and punched him with both hands. Officer Kretz entered one door and his partner the other; Officer Kretz saw the defendant and Davis flee into the next car. The two officers went to O’Dea who was bleeding profusely about the face; the three then went to the car ahead where O’Dea pointed out the defendant and Davis as the men who had attacked him. Officer Kretz also pointed out the defendant in court. He further testified that the defendant had damp blood on both hands and that he wore three rings on each hand.

Officer James Crossin testified that as the train was pulling into the station he and his partner, Officer Kretz, saw the defendant and Davis beating a man whom he now knows as John O’Dea, the complaining witness. They entered the car and saw the defendant running into the next car. After checking the condition of the victim, the two officers and O’Dea went to the other car where O’Dea pointed out the defendant and Davis. Officer Crossin further testified that when he was waiting on the platform he saw the defendant standing in front of O’Dea, striking him about the face and head, and that O’Dea seemed almost unconscious at the time. He stated that he noticed fresh blood on the defendant’s hands and added that the lighting conditions in the car were very good. He and his partner then arrested the defendant.

The defendant testified in his own behalf as follows. He was a short-order cook in a restaurant, and on the night in question had worked from 8:00 p. m. to 4:00 a. m., after which he went to Cottage Grove “L” Station with Leon Davis; they were going to a party on the west side. They sat across the aisle from O’Dea who “was very intoxicated and he was down between the seat.” The defendant picked Mm up and put him on the seat, after which O’Dea started talking to him, asking if he knew where there were any colored girls. The defendant said he would rather not listen to Ms conversation, and O’Dea started to “cuss” Mm and called Mm “nigger.” He still refused to talk to O’Dea and O’Dea slapped him. Davis restrained the defendant from slapping O’Dea, but when O’Dea hit him again the defendant hit him back and they started fighting. He testified that he had only one ring on his right hand. The defendant further stated that he and Davis then went into the other car, after which the police officers came in and arrested them both, handcuffed them and started beating and kicking them. He stated that later, when they were taken to the police station, one of the officers put a gun to Davis’ head and said he ought to be killed. The defendant denied he had asked O’Dea for any money.

In rebuttal Officer Kretz testified that he had not kicked or beaten the defendant on the occasion of his arrest, and that he had not seen anyone put a gun to defendant’s head and threaten to kill him. He stated that in Ms opinion O’Dea was not intoxicated on the morning in question. Officer Crisson also testified in rebuttal that no one struck or beat the defendant at any time or threatened to kill him. He also stated that it was his opinion that O’Dea was not intoxicated.

The question for the trier of fact was which witnesses were telling the truth. The jury believed the testimony of O’Dea, the complaining witness, and the officers, which they had a right to do. It has been repeatedly held—so often that it requires no citation of authority—that where the evidence is conflicting and cannot be reconciled, it is the duty of the trier of fact—whether judge or jury—to determine the credibility of the witnesses and the weight given their testimony; and a reviewing court cannot substitute its judgment for that of the jury or the trial court, nor can it disturb a verdict of guilty on the ground that the evidence is not sufficient to convict, unless it is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify the court in entertaining a reasonable doubt of defendant’s guilt. People v. Tensley, 3 Ill2d 615, 122 NE2d 155. The testimony of the State’s witnesses in the instant case does not fall within that classification. The evidence was sufficient to convict the defendant beyond a reasonable doubt.

The defendant makes the further argument that since the robbery attempt and aggravated battery were a result of the same transaction it was error to convict him of both crimes.

This question has been before the Illinois courts several times. In People v. Quidd, 403 Ill 15, 85 NE2d 179, the defendant was indicted for the crime of larceny by embezzlement; he was tried on two counts of the indictment, the offense charged in each relating to the same transaction. The first count charged embezzlement by a public officer, and the second charged embezzlement as agent. On trial the defendant was found guilty upon both counts, and the court sentenced him to the penitentiary for the same term on each count. The court held that there was no error in the trial court’s sentencing defendant on each of two counts relating to the same transaction, and said at page 20:

“Where there are two counts in an indictment growing out of the same transaction, the effect of two verdicts is the same as a finding that the defendant is guilty as charged in the indictment. . . . The sentences were not imposed to run consecutively. They necessarily run concurrently, as both offenses are but one transaction, and defendant was not prejudiced thereby.”

In People v. Stingley, 414 Ill 398, 111 NE2d 548, an indictment in two counts was returned against the defendant. The first count charged an assault with intent to rape, and the second count charged an assault with intent to murder. Both arose out of the single series of acts committed upon the same victim at the same time and place. The court found the defendant guilty on both counts and sentenced him to a term of 10 to 14 years on each count, the sentences to be served “cumulatively.” The defendant contended that the trial court was without authority to impose two consecutive sentences under a single two-count indictment naming offenses in the same transaction. The Supreme Court took the view that the case raised a question of first impression in Illinois, and cited People v. Quidd, supra, holding that when sentences are imposed to run consecutively the defendant is necessarily prejudiced. The court said at page 404:

“We think the People, when they elect to prosecute two separate felonies under two counts in the same indictment, are entitled to only one satisfaction.
“It is our holding, therefore, that the sentences of plaintiff in error on the two counts of the indictment are being served concurrently and that the satisfaction of one will satisfy both. [Citing case.] The judgment of the Criminal Court of Cook County is affirmed.”

In People v. Schlenger, 13 Ill2d 63, 147 NE2d 316, the defendant pleaded guilty to an indictment in two counts, the first charging armed robbery, and the second grand larceny. He was sentenced to the penitentiary for a term of 5 to 15 years on the armed robbery count, and sentenced 5 to 10 years on the grand larceny charge, to run concurrently with the first sentence. The court cited People v. McMullen, 400 Ill 253, 79 NE2d 470, which held that where two verdicts were returned and two sentences imposed in a case charging burglary and larceny, since the two sentences must run concurrently, the defendant is not prejudiced. However, in Sehlenger, the court held that where the trial court imposed sentences for different periods on each count of the indictment involving the same transaction, the fact that the sentences were to run concurrently is not controlling because under those circumstances the defendant’s application for parole may be adversely affected by the second sentence. The court reversed the judgment on the charge of grand larceny contained in the second count of the indictment and affirmed the burglary judgment.

In People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299, cited by the defendant, an indictment in two counts was returned against the defendant; one charging forcible rape, and the other incest. The two offenses involved a single act—the defendant’s forcible rape of his 10-year old daughter. The court held that it was proper to join the two charges in a single indictment and try them together since they were both based upon the same occurrence. On the count of forcible rape the defendant was sentenced to the penitentiary for a term of five years; on the incest count the sentence was imprisonment for not less than 19, nor more than 20 years, and the judgment provided that the two sentences should run concurrently. The court pointed out that force and lack of consent are essential elements of rape, but not of incest, and that the relationship between the parties was an essential element of incest, but not of rape. The court said, “The common denominator is the element of unlawful carnal knowledge.” The court discussed People v. Stingley, supra, which had held that although consecutive sentences had been imposed they were being served concurrently, and that the satisfaction of one would satisfy both. The court cited People v. Sehlenger, supra, stating that in Stingley it was sufficient to hold that the satisfaction of one sentence would satisfy both, while in Sehlenger, where different sentences were imposed to run concurrently, the court affirmed judgment for the greater offense, but set aside the other. In Duszkewycz, the court held that only one sentence should have been imposed, and that it should have been for the greater offense. The court affirmed the judgment of the criminal court upon the count of the indictment charging rape, and reversed its judgment upon the count charging incest.

In People v. Ritchie, 66 Ill App2d 302, 213 NE2d 651, the defendant was charged in a two-count indictment with rape and burglary with intent to commit rape. The trial court imposed a sentence of 15 years to life as to each count of the indictment, the sentences to run concurrently. In the opinion the court cited and discussed People v. McMullen, 400 Ill 253, 79 NE2d 470; People v. Stingley, 414 Ill 398, 111 NE2d 548; People v. Schlenger, 13 Ill2d 63, 147 NE2d 316; and People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299. Also cited was People v. Squires, 27 Ill2d 518, 190 NE2d 361, in which case it was held that where the defendant was charged with both burglary and larceny in a two-count indictment and the larceny charge was the taking of the same merchandise as that taken from the burglarized store, and the defendant was found guilty on each count and sentences were imposed to run consecutively in each count, the larceny sentence was erroneous and was reversed.

In Ritchie the court also cited the Criminal Code of 1961 (Ill Rev Stats 1963, c 38, § 1-7(m)), as follows:

“When a person shall have been convicted of 2 or more offenses which did not result from the same conduct, either before or after sentence has been pronounced upon him for either, the court in its discretion may order that the term of imprisonment upon any one of the convictions may commence at the expiration of the term of imprisonment upon any other of the offenses.”

The Committee which prepared the draft of the Criminal Code adopted by the legislature has said in its comments :

“Subsection (m) is intended to codify the holding in People v. Schlenger, 13 Ill2d 63, 147 NE2d 316 (1958), by the implicit converse of the provision stated, i. e., if the offenses resulted from the same conduct the defendant may not be sentenced on both, either concurrently or consecutively. ‘Conduct’ is defined in section 2-4 and is used in the sense of ‘the same transaction’ discussed in Schlenger, supra.”

The court further stated at page 314:

“The indictment in this case includes a count charging rape and a count charging burglary with intent to commit rape. We must conclude that upon the record of this case such counts were presented to and considered by the court as a part of the same conduct or transaction, and that, under the cited decisions and the subsequent statutory enactment, the concurrent sentences imposed are not authorized by law.”

The court affirmed the judgment for rape and reversed the judgment for burglary.

In a supplemental opinion on denial of petition for rehearing, the Ritchie court cited and quoted from People v. Golson, 32 Ill2d 398, 207 NE2d 68, in which case the court said at page 412:

“To determine, as a matter of legal semantics, that two indictable offenses were committed does not make these multiple trials fair, or vary the fact that defendants were guilty of only one punishable course of conduct.”

The court adhered to its former decision.

In People v. Ritchie, 36 Ill2d 392, 222 NE2d 479, the Supreme Court affirmed the decision of the Appellate Court, and said at page 397:

“The sense of the opinion appears to be that since the two crimes charged, i. e., rape and burglary with intent to commit rape, arose out of the same conduct or transaction and against the same person it would be unfair and prejudicial to defendant to impose two sentences and therefore it reversed the burglary conviction, relying on People v. Golson, 32 Ill2d 398; People v. Squires, 27 Ill2d 518; and People v. Schlenger, 13 Ill2d 63; and section 1-7 (m) of the Criminal Code. Ill Rev Stats 1965, chap 38, par 1-7 (m)."

However, see People v. Raby, 40 Ill2d 392, 240 NE2d 595.

In People v. Peery, 81 Ill App2d 372, 225 NE2d 730, the defendant was convicted of attempted murder and aggravated battery. For each crime he was sentenced to the penitentiary for a term of not less than five nor more than ten years, the sentences to run concurrently. In that case the court said, at page 377.“

“Defendant was convicted of attempted murder and of aggravated battery, both of which arose from the same conduct. Though this contention was not raised on appeal, under People v. Schlenger, 13 Ill2d 63, 147 NE2d 316, concurrent sentences for crimes arising from the same conduct are improper and the conviction of the lesser crime must be reversed. (See also People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299.) Therefore the conviction of attempted murder is affirmed and the conviction of aggravated battery is reversed.”

In the case before us, the attempted robbery and the aggravated battery were a part of the same transaction. The defendant demanded complainant’s money and threatened to take it, then commenced beating him. Under the rule laid down by the decisions, the judgment of the Circuit Court charging aggravated battery is reversed. The judgment finding the defendant guilty of attempt to commit robbery is affirmed.

Reversed in part, affirmed in part.

LYONS, P. J. and BURKE, J., concur.


author: TRAPP, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Campbell, Defendant-Appellant.
    Gen. No. 10,971.
    Fourth District.
    February 5, 1969.

      Guy E. Williams, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur, for appellee.
   TRAPP, P. J.

Defendant was convicted of attempted burglary after a jury trial and sentenced to a term of not less than ten years or more than fourteen years. The only issues presented upon this appeal arise from preliminary proceedings in which a jury found the defendant competent to stand trial.

It is urged that the prosecution failed to prove such competence by a preponderance of the evidence, and that the court erred in failing to direct a verdict requiring the jury to find the defendant unable to understand the nature of the charges or to cooperate with counsel in presenting a rational defense. In short, we are asked to hold, as a matter of law, that upon the record the defendant was not competent to stand trial.

The excerpts from the record do not indicate that either a motion for a directed verdict, or for a new competency hearing was made in the trial court, but it has been held that, where the record requires, the court should act upon its own motion. People v. McKinstray, 30 Ill2d 611, 198 NE2d 829. It has also been held that it is proper for the trial court to direct a jury to return a verdict that the defendant is competent to stand trial. People v. Woods, 26 Ill2d 557, 188 NE2d 1; People v. Brown, 31 Ill2d 415, 201 NE2d 409.

The issue of competency arose when the court was advised prior to arraignment that the defendant was dissatisfied with the services of the public defender and wanted another attorney appointed. In open court, the defendant asserted that, “. . . he just don’t appear to me he’d be in my comer,” and complained that his counsel spoke of the evidence against the defendant and what the State’s Attorney would recommend. Defendant’s accusations and remarks were essentially ill-tempered. Thereupon, the court appointed counsel other than the public defender. It is observed that nothing before us suggests that the defendant had other than satisfactory attorney-client relations in the subsequent proceedings.

Pursuant to the request of the State’s Attorney the defendant was examined by a psychiatrist whose qualifications are not questioned and who testified at the jury hearing upon competency. In an interview, the latter elicited defendant’s personal history, employment and education. Defendant, 45 years of age, had left school after the second grade, and was first arrested when fourteen years old. He had an extensive record of convictions and arrests. The doctor noted that defendant stated that he did not want to answer some questions. His conclusion was that the defendant had a schizoid or asocial personality with an intelligence verging on the defective level. His opinion was that defendant both understood the nature of the charges and was able to cooperate with counsel.

Upon cross-examination, the doctor stated that it was difficult to fix the intelligence quotient because the defendant would respond that he wasn’t interested in the questions. He estimated the intelligence as between 75-90. At the lower level, it would be the intelligence of an eleven-year-old boy. The doctor reiterated that the defendant was competent for purposes of standing trial, and that while there appeared to be evidence of alcoholism, such would not affect his competence at trial.

Here it is argued that the interview was of but an hour in length, and that the opinion was reached without a medical history, or the tests employed when a complete psychiatric examination is made.

No evidence was presented by the defendant either as to a medical history or other facts showing his want of competency to stand trial. The testimony of the psychiatrist is the only evidence upon the issue.

In People v. Brotnyak, 39 Ill2d 545, 237 NE2d 451, it was held that neither chronic alcoholism nor borderline intelligence are determinative of competency to stand trial. See also People v. King, 50 Ill App2d 421, 200 NE2d 411. In People v. Brown, 31 Ill2d 415, 201 NE 2d 409, it was held that defendant’s commitment as feebleminded eight years before was not determinative of the relevant factors; (1) capacity or ability to understand the nature of the charges, and (2) to cooperate with counsel in defending. This rule was followed where the defendant was committed as in need of mental treatment. People v. Woods, 26 Ill2d 557, 188 NE2d 1. In each case, the Supreme Court held it proper for the trial court to instruct the jury to return a verdict finding defendant competent to stand trial.

Here, as in those cases, the only evidence before the court and jury was the medical opinion of a qualified witness that defendant was competent to stand trial within the statutory standards. Ill Rev Stats 1965, c 38, § 104-1. Under the authorities noted, such evidence is sufficient to establish the necessary preponderance, and we find no error in the proceedings.

The judgment of the trial court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: MR. JUSTICE DAVIS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Barbic, Defendant-Appellant.
    Gen. No. 68-63.
    Second Judicial District.
    February 5, 1969.

      Kevin Kelly, of LaSalle, for appellant.
    John L. Moore, State’s Attorney, of Oregon, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The defendant, Frank Barbie, was found guilty of driving 62 miles per hour in a posted speed zone of 50 miles per hour, in violation of section 49 of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1967, c 951/2, par 146), and was assessed a fine of $12, plus costs of the suit. The trial was before the magistrate, without a jury. Upon appeal, the defendant prays for reversal of the judgment, or that the cause be remanded for new trial.

The defendant based his defense on a chart or graph made by a Tachograph machine or device, with which his tractor unit was equipped. The Tachograph recorded chronologically the speed and miles per hour, at any given time—in direct relationship to the time of day— together with other data, independently of any act of the defendant, other than the operation of the tractor.

The theory of the defendant is that the State did not prove him guilty beyond a reasonable doubt; that the radar unit which registered the speed of the tractor was subject to error inherent in its structure and operation, and to error of judgment of its operator; and that the Tachograph chart was not contradicted.

The People’s theory is that the radar equipment used by the arresting officer was proven to have been tested both before and after the offense; that it was working accurately; that the court had the right to take judicial notice of the accuracy of the radar equipment as used to determine the speed of moving vehicles; that the court, as the trier of fact, had the right to determine, from al of the evidence, the facts with reference to the offense charged and the validity of the defense thereto; and that the defendant’s guilt was established beyond a reasonable doubt.

The People called four witnesses: Corporal Fred Fromm, who has been on the Illinois State Police Force for 17 years, and had operated radar devices for about 10 or 11 years; Corporal Fred Spilman, who had served 10 years and had worked with radar over the entire period; Trooper Jay 0. Buckley, who struck the tuning fork on a block of wood while standing directly in front of the control head of the radar device; and Elmer Eyman, Technical Supervisor of the State Radio Bureau, who prepared applications for radar equipment to be purchased, and set up all radar testing procedures.

The following is a fair narrative statement of the testimony of the State Police Officers: Fromm had received complete instructions in radar when it was first used in his State Police District, and further instructions when any change or improvement was made in the equipment. He was operating the device at the time and place in question. The tripod with the radar control was located along the paved portion of the highway, with a cable running to his squad car, which was 70 to 80 feet from the road, and the radar machine and the recording graph were in the front seat of his car. The radar device was set up, warmed up for 10 to 20 minutes, and was then tested and found to be accurate at 8:80; 9:18; 9:45 and 11:80 a. m., and at 12:15 p. m. All tests were made with a tuning fork, set for a speed of 65 m. p. h., and the radar device tested out perfectly at all times on the day in question. Fromm knew of no weak points or possibilities of error in the device. The possible percentage of error in the radar testing was less than one percent.

A Schwerman tractor and trailer (herein called Truck No. 1) of grayish color, traveling southerly, passed through the radar wave or beam at 9:00 a. m., when no other vehicles were within such beam. It was traveling 62 m. p. h. when picked up by the radar beam and its speed dropped to 58 m. p. h. as it went out of the beam. Two other Schwerman trucks were following Truck No. 1 and the nearest was 20 to 30 seconds behind it. Corporal Fromm radioed Corporal Spilman that Truck No. 1 registered 62 m. p. h. on the radar. Corporal Spilman, who was operating a catch-car, stopped Truck No. 1 and issued an arrest ticket to the defendant—its driver— for speeding as indicated on the radar graph. Corporal Spilman was within the view of Corporal Fromm at all times after the radio call and when the arrest was made. Spilman then radioed back to Fromm that he had stopped Truck No. 1, informed the defendant of the violation, and had issued a ticket to him.

The radar graph for the date in question, was admitted in evidence. It reflected the speed of the various vehicles which passed through the radar beam, with legends in the hand of Corporal Fromm, indicating the graph marking pertaining to Truck No. 1 which came through the radar beam at 9:00 a. m. It also reflected the tests made at 8:30 and 9:18 a. m.

At the time of the arrest, the defendant stated that he did not believe he was traveling 62 m. p. h., and that a Tachograph on Truck No. 1 did not indicate that speed.

Corporal Spilman recalled seeing the two trucks which were following Truck No. 1, and he had enough time to pull onto the road between the time when Truck No. 1 went out of the radar beam and the first following truck reached the beam, which indicates that there was no traffic proceeding northerly on the highway at the time.

Elmer Eyman testified relative to proper testing procedures, and those he outlined conformed to those used on the date in question. He stated that the tuning fork test, after a five-minute warm-up of the radar device, had a possibility of error of less than one percent. He completely described the operation of the radar unit and explained the phenomenon of the measurement of speed by radar. Included in his explanation was a statement that when a larger vehicle (a truck) goes through the radar beam, it returns more energy to the radar machine and the recording of the speed of such vehicle will be in the nature of a plateau on the radar graph; while a smaller vehicle (a car) will return less energy and will register a peak on the graph.

The radar graph reflected plateaus for the trucks and peaks for the cars, and it did not indicate that any cars were traveling north or south immediately before or after, or at the time when the trucks crossed the radar beam.

The defendant testified that he had worked for Schwerman Trucking Company for seven years, and that all of the trucks that he had driven were equipped with Tachographs—which registered the work time of the various drivers, the miles traveled, and the stops made. He stated that the standard procedure was to open the tractor doors and attach the Tachograph machine on the dash to the right of the steering wheel, insert an unused chart in the Tachograph, then lock the Tachograph machine and use the Tachograph key as the ignition key for the truck.

The chart, according to the defendant’s testimony, showed the time that the truck started—according to the visible clock contained in the Tachograph—the miles traveled by the truck and the speed. Before inserting the chart in the Tachograph, the defendant would write the date, Ms name, the unit numbers of the truck, and its present mileage on the face of the chart.

He testified that when he was stopped by Corporal Spilman, he was driving 50 m. p. h. as reflected by the speedometer which is a part of the Tachograph machine; that the chart from the Tachograph which was on the truck on October 5, 1967, reflected that at 9 :Q0 a. m., on that date, the truck was traveling at a speed of 50 m. p. h.; that the rules of Schwerman Trucking Company limit the speed which trucks shall be driven to 50 m. p. h.

The defendant stated that he did not have the Tachograph checked for accuracy either before or after the arrest; and that he had nothing to do with the Tachograph other than to use it as directed by the company.

Robert Galasse, a graduate engineer and an experienced application engineer at Sangamo Electric Company, of Springfield, testified that he assisted the sales organization of Sangamo in the technical orientation of the Tachograph ; and that he prepared service manuals, installation instructions and worked with the engineering department on design problems.

He stated that the Tachograph is a precision recording speedometer which employs the use of a mechanical clock that drives a pressure sensitive chart; that as the clock drives the chart, it is marked on by three styluses, which cut the plastic off the chart; that stylus number one records the speed of the vehicle; stylus two, the total miles traveled; and stylus three, whether the vehicle is stopped or moving and whether it is stopped with the engine running or turned off. He stated that all of these recordings are made in the correct correlation of the exact time—either day or night—so that a complete graphic record is made of the operation of the vehicle during any given period of time.

He further stated that the speedometer cable activates the Tachograph, which is operated on the same principle as a speedometer on a passenger car; that there are 1,000 turns of the speedometer cable per mile; and that there is a geared connection from the end of the speedometer cable to the Tachograph, which may come off the transmission or the front wheel; that the installation on Truck No. 1 came off the front wheel; and that if the front tires on the truck were worn, the mileage could vary two or three percent.

He had not seen Truck No. 1 and had not inspected the Tachograph which was on it; that after being given the total mileage figures for the defendant’s trip for the day, as furnished by the defendant or his employer, it was his opinion that the Tachograph chart was accurate; and that the Tachograph had not been tampered with.

John Hubinsky, Western Division Vice-President of Schwerman Trucking Company, testified that he had examined the Tachograph chart taken from Truck No. 1, dated October 5, 1967; had recalculated the mileage from the Household Goods Carrier’s Guide and rechecked the mileage as indicated on the chart; had taken a set period in which the truck was moving 50 m. p. h., and worked out the calculations as to the miles traveled in that distance; that the speed recorded on the Tachograph chart was accurate; and that the chart had not been tampered with.

John W. Greuer, the terminal manager of the Oglesby Terminal, testified that the tread on the front tires of the truck in question, was equal to about 90% of the tread of a new tire; and that he tested the Tachograph after the defendant drove back to the terminal and it then recorded accurately. However, his explanation with reference to the procedure used in the testing and its efficacity, left much to be desired.

Sam Wallendal, an engineer for Carriers Insurance Company, testified on behalf of the defendant that the radar is subject to occasional error; that a radar beam will pick up the fastest moving vehicle first; that it will pick up the nearest vehicle first; that if two vehicles were of equal distance from the control head of the radar, it would pick up the larger vehicle first; and that if two or more vehicles approach the radar beam at the same time, either parallel or in close proximity, the radar would pick up the fastest unit first.

In People v. Abdallah, 82 Ill App2d 312, 315, 316, 226 NE2d 408 (1967) the court discussed the term “radar,” and at page 315 stated:

“The ‘radar’ device presently in common use by law enforcement agencies for the determination of speeds of moving vehicles, . . . operates on the Doppler principle, that is, the emission of a continuous electromagnetic wave which enables the speed of a target object to be determined by measuring the difference in frequency between the wave emitted from the radar device and the wave reflected from the object. Kooper, The Scientific Reliability of Radar Speedometers, 33 NCL Rev 343. It is presently so well settled that the Doppler principle is an accurate means of determining the speed of a moving object that a court may take judicial notice thereof; and expert testimony is unnecessary to establish the usefulness of the method. City of Cleveland v. Ferell, 168 Ohio St 298, 154 NE2d 630; State v. Dantonio, 18 NJ 570, 115 A2d 35; People v. Magri, 3 NY2d 562, 147 NE2d 728, 730; see also 49 ALR2d 469 and 61 CJS, Motor Vehicles, Sections 647, 648.”

This court also takes judicial notice of the accuracy of such radar devices generally in determining the speed of a moving object, subject to the necessary proof as to the accuracy and proper operation of the particular device under consideration.

In the case at bar, the judgment of the trial court did not necessarily rest on such judicial notice. The evidence on behalf of the People established that there were no possibilities of error in the particular radar device employed at the time in question. Also, it was conclusively proven that the device was tested both before and after the 9:00 a. m. arrest of the defendant; that the tests were accurate; and that the percentage of error in testing, was less than one percent.

It is true, as the testimony for the defendant indicated, that the officers operating the device may make mistakes in the description or observation of the vehicles passing through the radar beam, or there may be interference within the area of the beam. Also, direction, time and distance cannot be measured by the device. However, the testimony on behalf of the People was positive with reference to the description of Truck No. 1 and the absence of interfering traffic. There was no conflict in the evidence relative to the direction in which the truck was traveling.

In People v. Abdallah, supra, at page 316, the court stated:

“Where the accuracy of a particular radar device is unproven, the results thereof will be insufficient to convict for a traffic violation, although such results are admissible as evidence. People v. Magri, 3 NY2d 562, 147 NE2d 728. Where, on the other hand, there is reasonable and sufficient proof of the accuracy of the radar instrument, the reading taken therefrom may of itself be sufficient for a conviction. People v. Dusing, 5 NY2d 126, 155 NE2d 393.
“Defendant maintains that the tuning fork used to test the accuracy of the radar device was itself untested for accuracy and that therefore the operator was not qualified to testify to the accuracy of the device. We disagree. The officer testified that he made several tests with the tuning fork prior and subsequent to the time defendant passed into the radar field, and that the meter on each occasion showed a reading of 65 miles per hour.”

And, at page 317, the court stated:

“The operator of a radar instrument does not have to be an expert in the science or theory underlying the functions of the instrument. It is sufficient that he is familiar with the device and its operation, the evidence of which presents a question of weight and credibility for the jury. People v. Johnson, 23 Misc2d 11, 196 NYS2d 227.”

We are of the opinion that there was sufficient proof of the accuracy of the particular radar unit in question, for the trier of fact to find the defendant guilty of speeding based solely upon the reading taken from the radar unit. However, we must also consider the defense based on the reading of the Tachograph chart with reference to speed.

In support of this defense, the defendant established that the Tachograph is a precision recording speedometer employing the use of a mechanical clock to drive a pressure sensitive chart, thereby providing an auto-graphic record of the vehicle’s operation. The chart from the Tachograph indicated that at 9:0Q a. m., the defendant was driving at a speed of 50 m. p. h., and the chart had not been tampered with.

Robert Galasse and John Hubinsky both testified as to the accuracy of the Tachograph chart. However, Galasse had not seen Truck No. 1, and had not inspected the Tachograph which was on it at the time of the defendant’s arrest. Hubinsky based his opinion as to the accuracy of the Tachograph chart by recalculating mileage from the Household Goods Carrier’s Guide, by rechecking the mileage indicated on the chart, and by checking the mileage as indicated on the chart when the truck was moving at 50 m. p. h. With this information, he worked out the calculation of the number of miles traveled in this distance and concluded that the chart was accurate.

Galasse also stated that if the front tires were worn, the mileage could vary two or three percent; and John Greuer, terminal manager, stated that the front tires on Truck No. 1 had 90% of the tread of a new tire.

The trial court was the trier of the fact issue in this case and determined the credibility of the witnesses. He saw the witnesses, heard them testify and had the opportunity of determining their credibility, not only from their testimony, but also from their general demeanor on the witness stand, the inflection of their voices and from other emotional and physical reactions to questions propounded, to an extent not available to this court from an examination of the cold written record. It was his prerogative to believe or disbelieve the witnesses and to weigh their testimony.

Reviewing courts in Illinois will not reverse a judgment of conviction on the ground that the evidence failed to sustain the judgment unless there is a reasonable and well-founded doubt as to the guilt of the accused and the judgment is palpably contrary to the weight of the evidence. People v. Lobb, 17 Ill2d 287, 294, 161 NE2d 325 (1959); People v. Prohaska, 8 Ill2d 579, 589, 590, 134 NE2d 799 (1956); People v. Stangeland, 76 Ill App2d 77, 80, 220 NE2d 748 (1966); People v. Booher, 73 Ill App2d 226, 229, 330, 218 NE2d 779 (1966). Such doubt does not exist in the case at bar.

In this case, the substantial testimony was that both the radar device and Tachograph were accurate, although a possibility of error at the time of the arrest existed in connection with each device. The case was heard before the court without a jury. In such cases, it is the function of the trial court to determine the credibility of the witnesses and the weight to be afforded their testimony, and where the evidence is merely conflieting, a reviewing court will not substitute its judgment for that of the trier of fact. People v. Clark, 30 Ill2d 216, 219, 195 NE2d 631 (1964). Consequently, the judgment of the trial court is affirmed.

Judgment affirmed.

ABRAHAMSQN, P. J. and MORAN, J., concur.


author: MR. JUSTICE SEIBENFELD

text:
    Lombard Park District, a Municipal Corporation, Plaintiff-Appellee, v. Chicago Title and Trust Company, Not Individually but as Trustee Under Trust Agreement Known as Trust No. 36988, Maywood-Proviso State Bank, Not Individually but as Trustee Under Trust Agreement Known as Trust No. 1604, Elmhurst National Bank, Not Individually but as Trustee Under Trust Agreements Known as Trusts Numbered 634, 1983, 1985 and 1900, Lawrence A. Britton, et al., Unknown Beneficiaries of Chicago Title and Trust Company, Trust No. 36988, Unknown Beneficiaries of Maywood-Proviso State Bank, Trust No. 1604, Unknown Beneficiaries of Elmhurst National Bank, Trust No. 634, Trust No. 1983, Trust No. 1985, Trust No. 1900, and Unknown Owners, Defendants-Appellants.
    Gen. No. 68-110.
    Second Judicial District.
    February 5, 1969.
    Rehearing denied March 24, 1969.

      Paul S. Schmid, of Wheaton, for appellants.
    Donald J. Kreger and Thomas A. Matthews, of Chicago, for appellee.
   MR. JUSTICE SEIBENFELD

delivered the opinion of the court.

Defendants appeal from a judgment of condemnation as to four contiguous parcels of land located within the Village of Lombard, entered after jury verdicts. The petition to condemn included two additional contiguous parcels, as to which the trial court set aside the jury verdicts and granted a new trial on the ground that certain evidence should have been admitted, but the post-trial motion was denied as to the parcels included in this appeal. The subject of the granting of a new trial as to the remaining parcels is included in a separate appeal pending before this court.

The judgment in this case confirmed jury verdicts in the amount of $87,500 for parcel 1, $6,000 for parcel 3, $2,000 for parcel 5, and $3,500 for parcel 6. Issues raised by the appeal are whether the court erred (1) in failing to strike the testimony of a valuation witness on the basis of whether his calculations included all of the land sought to be taken; (2) in admitting a certain geological survey hydrologic investigations map of “Floods in Lombard Quadrangle Illinois” and (3) in allowing the testimony of the village engineer of Lombard defining a “floodplain area” under a village ordinance.

There was a jury view. The subject parcels are zoned R-l Single-Family Residence District requiring a lot area of a minimum of 10,000 square feet and a lot width of a minimum of 75 feet. The parcels are generally surrounded by property presently being developed as an R-2 Single-Family Residence District. The zoning ordinance provides that the minimum lot area requirement in the R-2 District is 7,500 square feet and the minimum lot width is 60 feet.

There was conflicting evidence as to soil conditions based on engineering borings. The soil conditions of the various parcels range from soil which has poor weight bearing qualities to soil which has adequate weight bearing qualities for single-family construction, with the dispute existing as to the amount of land in the parcels having the various qualities.

The maximum values placed on the subject parcels by the plaintiff’s witnesses were $62,000 for parcel 1, $2,400 for parcel 3, $2,400 for parcel 5 and $2,000 for parcel 6. The minimum values placed on the subject parcels by the defendants’ witnesses were $131,000 for parcel 1, $4,000 for parcel 3, $2,000 for parcel 5 and $3,000 for parcel 6. The testimony of Thomas Collins, the valuation witness for the plaintiff, which is objected to by the defendants with reference to parcel 1, was $62,000.

During Mr. Collins’ testimony as to the value of parcel 1, he referred to an exhibit (No. 19) which purported to be an outline of parcel 1. He had himself prepared this exhibit the night before as a visual aid to illustrate his opinion. He testified that the exhibit was prepared from a description given to him by a park district official. On cross-examination Collins discovered and admitted that he could have and, in fact, did err in his outline of parcel 1 on the exhibit. He failed to include block no. 1 in his outline while in reality all of block no. 1 except for the south 150 feet was part of parcel 1 in the description of the property sought. On cross-examination Collins said that his valuation estimate was derived from the property shown on the map. He was asked if he made the map from the description the city official had given him and his reply was: “That is correct unless I have erred in the map and I would have to refer to my file, but I am sure that’s the property I had in consideration.” On redirect examination, after the mistake had been discovered, counsel for the plaintiff asked Mr. Collins to amend the map to include the proper property and then asked him if his appraisal was on the entire property and Collins responded that his appraisal included the portion he had omitted on the map.

While defendants argue that the court erred in failing to strike Collins’ testimony, at least as to parcel 1, for the reason that he did not calculate the value on the entire parcel, we do not agree.

Collins’ error in preparing the map could properly be considered by the jury in weighing the competence of his expert testimony as the weight and credibility of testimony of expert witnesses is for the jury to determine on consideration of all of the factors on which his opinion was based.

The map, however, was simply an illustrative aid to the testimony Mr. Collins was giving. The map was not evidence in itself and once the error had been called to the attention of the jury and Collins had established that the error had not affected his opinion as to the value of the property, but rather that his valuation was based on the correct description of the parcel, the jury was not misled or confused by the mistake. The weight to be given the testimony was properly a matter for the determination of the jury. Department of Public Works v. Finks, 10 Ill2d 15, 19, 139 NE2d 267 (1956).

It should also be noted that the testimony of Mr. Sutte for the plaintiff placed a value on parcel 1 of $62,000. The jury verdict of $87,500 for parcel 1 was well above the value put in evidence by the plaintiff even without reliance on the testimony of Collins, so that the jury verdict was within the range of testimony.

We next consider the claim that it was error to introduce the United States Geological Survey as evidence. Defendants argue that the map is impermissible hearsay, while plaintiff argues that it is an official public document properly authenticated and not based upon opinion or judgment and therefore admissible as an exception to the hearsay rule.

The considerable printed legend on the map includes the following:

“This report is a study of hydrologic data to evaluate the depth and frequency of flooding that affect the economic development of floodplains. The data provide a technical basis for making sound decisions concerning the use of floodplain lands. No recommendations or suggestions for land use regulations are made and no solutions of existing flood problems are proposed.
“The general procedure followed in defining flood limits was to develop flood profiles on the basis of all available data. The horizontal extent of flooding delineated on the topographic map was derived from the profiles by interpolation between contours (lines of equal elevation) and by plotting overflow limits identified during field investigations and surveys. The locations of flood limits shown on the map are only approximate because the map scale is small (1 inch = 2,000 feet) and the contour interval is relatively large (10 feet, supplemented by 5-foot-interval contours in some areas).
“The flood limits shown on the map are not necessarily those for the highest floods expected. Greater floods are possible but definition of their probable overflow limits is not within the scope of this report. The flood limits shown reflect channel conditions existing when the floods occurred. No attempt is made to appraise the effect of changes in channel conditions, waterway openings at highways and railroads, or changes in runoff characteristics of the stream caused by increased urbanization that may have taken place after the floods occurred. Protective works built after the floods of 1954 and 1961 may reduce the frequency of flooding in the area but will not necessarily eliminate all future flooding. The inundation pattern of future floods may be affected by new highways and bridges, relocation and improvement of stream channels, and other cultural changes.
“The preparation of this report is a part of an extensive flood-mapping program financed through a cooperative agreement between The Northeastern Illinois Metropolitan Area Planning Commission and the U. S. Geological Survey. . . .
“The report was prepared by the U. S. Geological Survey under the administrative direction of William D. Mitchell, district engineer, and under the immediate supervision of Davis W. Ellis, engineer-in-charge of the project.
“Acknowledgment is made to the following agencies that supplied some of the flood data on which this report is based: the State of Illinois, Department of Public Works and Buildings, Division of Waterways ; DuPage County Highway Department; and the Department of Highways of Cook County.
“Additional data were obtained from officials of municipalities located in the area, and from field investigations.
“Where floodmarks could not be identified, the profiles were constructed on the basis of flood crests determined from photographs and reports of local residents, and elevations of streambeds and lower floods. . .

Generally, public records may come within an exception to the hearsay rule if required either by statute or authorized to be maintained by the nature of the office. Such records are evidence of those matters which are properly required to be maintained and recorded therein. This exception to the hearsay rule is based upon assumptions that public officers will perform their duties and are without motive to falsify, and that public inspection to which such records may be subject will disclose inaccuracies. People ex rel. Wenzel v. Chicago & N. W. R. Co., 28 Ill2d 205, 211-212, 190 NE2d 780 (1968). Records which concern causes and effects, involving the exercise of judgment and discretion, expressions of opinion, or the drawing of conclusions, are not admissible; and since official documents are a substitute for the personal appearance of the official, charged with their preparation, in court, it is generally held that such documents, to be admissible must concern matters to which the official could testify to if he were called to the witness stand. Coal Creek Drainage & Levee Dist. v. Sanitary Dist. of Chicago, 254 Ill App 289, 313 (1928), (reversed on other grounds in 336 Ill 11, 167 NE 807 (1929); 30 Am Jur2d, Evidence, §§ 991-992).

Applying these rules to the exhibit in question (Map entitled Geological Survey Hydrological Investigations Atlas HA-143 “Floods in Lombard Quadrangle, Illinois”) we find that the court erred in admitting it as substantive evidence.

Initially, there has been no showing that the Director of the Geological Survey has statutory authority or direction to record or preserve hydrological data. The Director certified the exhibit under c 43, USC § 31, but we perceive no such authority therein. It has been held that a similar survey was not admissible for this reason in Taylor v. State (Tex Civ App), 158 SW2d 881, 883-884 (1942).

We are aware of the fact that since the time of the decision in the Taylor case certain provisions have been added to chapter 2 (Geological Survey) of Title 43 of the U. S. Code. Among them are sections dealing with powers to acquire lands or interests for the use in gaging streams or underground water resources (§ 366) and cost sharing of topographic mapping or water resources investigations carried on with States. These sections must be read in connection with § 31 which establishes the duties of the Director of the Geological Survey, and viewing them as such we fail to see how water plain measurements are either authorized or in the nature of the geological survey office. We do not consider examining the geological structure and mineral resources to include floodplain determinations. The conclusion of the Department of the Interior that they are authorized under Title 43, § 31, to prepare such a map is not enough. Particular authority must he demonstrated before we can conclude anything other than this map was not authorized but rather incidentally logged in the office of the Department of the Interior.

We do not question the intention or motive of the department in preparing the map, but rather we are only concerned that the authority for such a document must be clearly demonstrated when its evidential value is controverted and its admissibility is to be determined under the official document exception to the hearsay rule.

But, in any event, there are additional evidentiary infirmities under the rules. The legend accompanying the map, as well as the map itself, reveals the dangers inherent in its admission without supporting testimony and the right to cross-examination. The legend on the map does not include the property in question within the plain of overflow of the river: the contours reveal that the area in question is a depression at a higher contour level than the highest extent of the greatest flood recorded and is located at a considerable distance from the river overflow of that flood. The legend indicates that the location of flood limits are only approximate, and that no evaluation of the effect of cultural changes in the area which could affect flooding is made. Reference is made to data received from officials in the area, and reports of local residents as well as to various state and county departments. The nature and extent of such data is not identified so that it might be related to the subject area, nor is its reliability determined, and there is no way of determining how much of the data could have been testified to by the official preparing the map. No field notes are attached or identified.

Plaintiff suggests that authority for the admission of the document is found in Reinke v. Sanitary Dist. of Chicago, 260 Ill 380, 388-389, 103 NE 236 (1913), and in People ex rel. Wenzel v. Chicago & N. W. R. Co. (supra). In Reinke, the documents which were held to be admissible were for demonstrative purposes, in support of other testimony. In Wenzel the court admitted official sales-assessment ratio-studies of the Department of Revenue compiled pursuant to a statutory mandate. We are of the opinion that neither case is authority for the admission of the document involved here.

The purpose of the admission of the document was to show that a substantial portion of the property in question was in a floodplain area, and upon which residences could not be built or building permits issued. In view of the testimony on behalf of the owners that the highest and best use of the property was residential, the admission of the evidence was obviously prejudicial and requires that the cause be reversed and remanded for a new trial.

We do not reach, in this view, the claim of error made as to the testimony of the village engineer which was based substantially on the defining of the floodplain area on the basis of the government map.

We therefore reverse and remand the cause for a new trial consistent with this opinion.

Reversed and remanded.

ABRAHAMSON and DAVIS, JJ., concur.