author: EBERSPACHER, P. J. MORAN, J.,

text:
    Helen Hitt, Administratrix of the Estate of Norman M. Hitt, Deceased, and Rogers Cartage Company, a Corporation, Plaintiffs-Appellants, v. Delmar B. Langel, Administrator of the Estate of Ernest C. Langel, Deceased, Defendant-Appellee.
    Gen. No. 67-57.
    Fifth District.
    March 29, 1968.

      MORAN, J., dissenting.
    Chapman, Strawn & Kinder, of Granite City, and Burroughs, Simpson & Burroughs, of Edwardsville, for appellants.
    James L. Reed, Reed, Armstrong and Gorman, of Edwardsville, for appellee.
   EBERSPACHER, P. J.

This is an appeal from a judgment for the defendant in an action for wrongful death and property damages.

The action was brought by Helen Hitt, the administratrix of the estate of Norman M. Hitt, deceased, and Rogers Cartage Company, a corporation. The cause of action was based upon a collision wherein the plaintiff’s decedent driving a gasoline tanker truck owned by Rogers Cartage Company was involved in a collision with an automobile driven by Ernest C. Langel. As a result of the collision both the plaintiff’s decedent and Ernest C. Langel were killed. Delmar B. Langel, the administrator of the estate of Ernest C. Langel, deceased, was named as the party defendant.

The collision occurred on December 30, 1964, at approximately 4:30 p. m. Norman Hitt was driving his truck in a northerly direction on Route 66 near Hamel, Madison County, Illinois. It was a clear day and the highway was dry. At this particular point Route 66 consists of two northbound lanes and two southbound lanes with a median strip dividing them.

From the evidence it appears that a man and wife by the name of Pattingale driving a 1956 Chevrolet automobile in the northbound lane had developed mechanical trouble and had parked their automobile on the shoulder to the right of the northbound lanes. The Pattingales had emerged from their automobile. Shortly thereafter a new Chrysler automobile driven by Ernest Langel also driving in a northerly direction with his wife as a passenger approached the Pattingale automobile. The Langels stopped their automobile in the right-hand lane about 100 to 200 yards in front of the place where the Pattingale car was parked in an apparent effort to render aid to the Pattingales. Moments later James Lamble, a witness, traveling north on Route 66, approached the scene from the south. He observed the Pattingale automobile, the Pattingales a short distance in front of their automobile walking north and the Langel automobile sitting in the right lane, at a slight angle. As the witness Lamble passed the Langel Chrysler, it appeared to be backing toward the shoulder very slowly. Mr. Lamble testified that immediately after passing the Langel car he pulled back into the right-hand lane and looked into his rearview mirror and observed a truck colliding with the Langel car and burst into flames.

There was about one-half mile of straight highway to the south of the place where the Pattingales parked their automobile. The highway gradually inclines and reaches a crest approximately 1,100 feet beyond the Pattingale automobile.

The Pattingales testified that after they parked their car on the shoulder they got out of their car and were walking north on the shoulder. They testified they saw the Langel car stop abruptly about 100 to 200 yards in front of their car and witnessed its movements prior to the collision. They testified that as the Langel car came to a halt the engine died. It was restarted and backed up 20 to 30 feet, then pulled forward 25 feet and was backing-up again very slowly in the center of the outside lane at the time of the collision. They further testified that the truck did not appear to either slow or swerve either right or left prior to the collision. It appears that the Pattingales had walked about 70 feet between the time that the Langels stopped the car and the collision occurred.

Mr. Pattingale testified that as the truck passed him he saw a station wagon in the lane next to the truck also going north and that the front of the station wagon and that of the truck were pretty much in line. Mrs. Pattingale and Mr. Lamble testified that they did not see the station wagon.

There was also evidence that the plaintiff’s decedent had gone on duty between 4:00 and 5:00 a. m. that morning.

Upon this evidence the jury rendered a general verdict for the defendant and against both the plaintiff Hitt for the wrongful death and the plaintiff corporation for the loss of its truck. The court entered judgment on the verdict from which both plaintiffs appeal.

In support of the plaintiffs’ effort to reverse the judgment, the plaintiffs allege that the court erred in failing to withdraw the issue of the defendant’s negligence from the jury, that the verdict was against the manifest weight of the evidence, that the jury was improperly instructed, and that the court abused its discretion in not allowing a new trial due to the improper instruction.

Turning first to the specific allegations of error, the plaintiffs allege that two of the defendant’s instructions were erroneously given, that one of the plaintiffs’ instructions was erroneously refused and that the court erred in giving the jury a general form of verdict.

The first instruction which the plaintiffs find objectionable is Defendant’s Instruction No. 7. The instruction is IPI No. 60.01, which provides:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
“ ‘No person shall drive any vehicle upon any public highway of this state at a speed which
“ ‘(1) Is greater than is reasonable and proper with regard to traffic conditions and the use of the highway or endangers the safety of any person or property, or,
“ ‘ (2) Is greater than the applicable maximum speed limit. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when special hazard exists with respect to other traffic and speed shall be decreased as may be necessary to avoid colliding with any vehicles on the highway in compliance with legal requirements and the duty of all persons to use due care.’
“If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether a party was contributorily negligent before and at the time of the occurrence.”

The basis of the plaintiffs’ objection is that the defendant injected into the case by way of instruction a statute which had no bearing on the factual situation and created an issue which had never been presented by pleading or evidence. Their argument continues that the evidence was that the day was clear, the pavement dry and that in the opinion of the witnesses the speed of the truck was from 50 to 55 m. p. h. and the speed limit for trucks was 55 m. p. h.

In Wrighthouse v. Brown, 52 Ill App2d 191, 196, 201 NE 2d 752 (1964), the Appellate Court, Fourth District, passed upon an instruction substantially the same as Defendant’s No. 7. In passing on an objection much the same as is urged in this case, the court said:

“ Tt is elementary that every party has the right to have the law applicable to his case stated fairly, clearly, distinctly and conveyed to the jury with substantial accuracy so that it may not be misled to the prejudice of the party (citing cases). He has the right to have the jury instructed upon his theories of recovery or defense (citing cases). Failure to give a party these rights which are tantamount to a fair and just trial, whenever the case is close upon its facts or the evidence conflicting, and the failure is material, requires that the verdict be set aside, the judgment reversed and the cause remanded for new trial.’ Sims v. Chicago Transit Authority, 7 Ill App2d 21, 29, 30, 129 NE2d 23. Each party is entitled to have the court instruct the jury on his theory of the case, provided that there is an evidentiary basis for the instruction. ‘All that is required in order to justify the giving of an instruction is that there is some evidence in the record to support the theory set out in the instruction.’ Biggerstaff v. New York, C. & St. L. R. Co., 13 Ill App2d 85, 94, 141 NE2d 72. ‘The law is well settled that each party to a cause of action is entitled to direct and specific instructions embracing his theory of the facts where his evidence tends to prove such facts.’ Kirchner v. Kuhlman, 334 Ill App 339, 346, 79 NE2d 628. The issue of speed, as much as any other particular act of a party, is for the jury. Such an instruction calls upon the jury to examine all the facts and circumstances in evidence including the speed of the vehicles and then decide whether a party should have reduced his speed to avoid a collision. The fact that a party’s speed was lower than the applicable maximum does not relieve that party from reducing his speed under certain circumstances.”

In the instant case, the fact that there was no evidence that the plaintiff had exceeded the speed limit does not make the instruction improper. The jury heard evidence not only on the speed of the plaintiffs’ truck but also the hazard with which the plaintiff was confronted and the circumstances and conditions under which the hazard arose. The jury was succinctly instructed by Instruction No. 7 that the speed of a vehicle on a highway should be governed by the traffic conditions and that adherence to the speed limit does not relieve the driver from duty of decreasing his speed under certain circumstances. Under the facts and circumstances of the case the issue of speed and whether the plaintiff should have reduced his speed was clearly a question for the jury.

Plaintiff contends that since there was no evidence of speed in excess of the statutory limit, and defendant did not plead a statutory violation, that even though the plaintiff’s speed may be considered by the jury, defendant is not entitled to have IPI No. 60.01 given. When a defendant denies the plaintiffs’ allegation of due care and caution, he may instruct the jury on a statutory violation by the plaintiff if it relates to the plaintiffs’ due care and there is evidence to support it. It is not necessary for the defendant to plead the statute in his answer; their general denial was sufficient to raise the issue. Carter v. Winter, 50 Ill App2d 467, 200 NE2d 528 (1964). The court did not err in giving the instruction.

The second instruction objected to by the plaintiffs was not preserved for review. At the instruction conference neither plaintiffs objected to the instruction. Savage v. Blancett, 47 Ill App2d 355, 360, 198 NE2d 120 (1964).

The third instruction involves plaintiffs’ Instruction No. 9 which the court refused to give. The instruction provided:

“The law does not require a person to act with deliberation and care in the face of an unexpected danger not caused by his own negligence.”

We note that the instruction is not an IPI instruction and as provided in Supreme Court Rule 239 (a) instructions not in IPI are only given when the trial court determines that the jury should be so instructed. We further note that the drafters of the Illinois Pattern Instructions recommended that no instructions be given on this subject concluding that it was argumentative, stated an obvious fact about human behavior and under many circumstances would lead to reversible error. See IPI No. 12.02 and Culp v. Olive, 45 Ill App2d 396, 195 NE2d 729. We do not entirely agree with the recommendation of the drafters of IPI and can visualize or hypothecate situations in which such instruction would be proper, but under the record in this case, even assuming the instruction should have been given, we find the error to be harmless.

The plaintiffs further allege that the court erred in its submission of a general form of verdict rather than a form of verdict based on negligence as charged in Count I of the complaint and a form of verdict based on wilful and wanton misconduct as charged in Count II of the complaint. Here again the plaintiffs failed to object to the form at the instruction conference or when it was read to the jury. The silence of the plaintiffs has precluded review. McCormack v. Haan, 30 Ill App2d 311, 174 NE2d 206 (1961).

Our review of the instructions given and refused and the objections thereto, leads us to the conclusion that the court did not abuse its discretion in failing to grant a new trial in this regard.

The plaintiffs next allege that the defendant was negligent as a matter of law and that that issue should have been withdrawn from the jury. The general rule is that negligence and contributory negligence are questions of fact for the jury, and so long as a question remains whether either party has performed his legal duty or has observed that degree of care imposed upon him by the law, and the determination of that question involves weighing and the consideration of the evidence, the question must be submitted as one of fact, Piper v. Lamb, 27 Ill App2d 99, 169 NE2d 164 (1960); Peterson v. Hendrickson, 335 Ill App 223, 81 NE2d 266 (1948). Even where the facts are admitted or undisputed but where a difference of opinion as to the inference that may legitimately be drawn from them exists, the questions of negligence and contributory negligence ought to be submitted to the jury. It is primarily for the jury to draw the inference. Piper v. Lamb, supra.

In the light of the authority of these cases, this court cannot say as a matter of law that the defendant was negligent nor that the trial court erred in failing to take that issue away from the Jury. It is clear that the defendant violated the statute by stopping on the highway. However it has been held that a violation of the Motor Vehicle Act does not constitute “negligence per se.” Piper v. Lamb, supra; Burke v. Zwick, 299 Ill App 558, 20 NE2d 912 (1939). The jury was also instructed to consider the other facts and circumstances which in our opinion included the evidence that it was a clear day, the highway was dry, that vehicles approaching from the south had an unobstructed view of at least a half mile, that the highway consisted of two northbound lanes affording drivers the opportunity to change lanes and that in fact at least one driver passed the defendant as he was stopped on the highway. Although some of these circumstances bear more directly upon the issue of the contributory negligence of the plaintiff, it could also be inferred that the defendant was aware of these circumstances which bears on the issue of his negligence. The evidence is such that neither this court nor the trial court would be justified in determining as a matter of law that the defendant was negligent.

The next point raised by the plaintiffs is that the verdict is against the manifest weight of the evidence. As this court stated in Brayfield v. Johnson, 62 Ill App2d 59, 210 NE2d 28 (1965) and again in Frozen Food Express v. Modern Truck Lines, Inc., 79 Ill App2d 84, 223 NE2d 275 (1967) :

“A court of review can set aside a verdict as being against the manifest weight of the evidence only when it is obvious or clearly evident that the jurors have arrived at an incorrect result. Romines v. Illinois Motor Freight, Inc., 21 Ill App2d 380, 158 NE2d 97 (1959). It is for the jury alone to determine the credibility of witnesses and the weight of the evidence on controverted questions of fact. A verdict based on conflicting evidence and approved by the trial judge should not be disturbed on appeal unless contrary to the manifest weight of the evidence; that is, an opposite conclusion must be clearly evident, clear, plain, indisputable. Schneiderman v. Interstate Transit Lines, Inc., 331 Ill App 143, 72 NE2d 705 (1947).”

As stated above, the plaintiffs’ complaint contained two counts. The first charged the defendant with negligence and the second with wilful and wanton misconduct. Since the jury returned a general form of verdict, it is impossible to determine the basis of the jury’s finding on each count.

It appears from the evidence that the plaintiff had been on duty for no less than twelve hours, that plaintiff was in a position where he could have discovered the emergency at a distance of approximately one-half mile, that another automobile some distance ahead of the plaintiff did avert a collision and that the plaintiff neither swerved nor slowed his vehicle preceding the collision. In light of these circumstances we cannot say that the verdict was against the manifest weight of the evidence, even though had we sat as triers of fact, we might have reached a different result.

For the reasons stated, the judgment is affirmed.

GOLDENHERSH, J., concurs.

MORAN, J.,

dissenting:

In my opinion, defendant’s intestate was negligent as a matter of law and therefore the trial court erred when it denied appellant’s motion to remove the issue of appellee’s negligence from the jury’s consideration. The undisputed evidence is that the defendant’s intestate came to a sudden stop on Interstate Route 70, backed his car up and stopped, started forward again, stopped, and started backing again when he was hit by the truck driven by Norman Hitt. Such a heedless act on a controlled-access highway, where the permitted speed for vehicular traffic is seventy miles per hour, should be termed foolhardy rather than negligent.

The writer of this dissent has made an exhaustive research to determine whether courts in this and other jurisdictions have passed upon this question, but has found little authority directly in point. Backing down a state highway is such an unusual thing to do, so fraught with danger, and so opposed to the dictates of common prudence that it is difficult to find cases alike on the facts — very, very few people are so foolish.

However, the courts in one jurisdiction have passed upon this question. In Sodergren v. Goodman, 242 F Supp 44, the trial judge held that backing a truck in violation of a South Carolina Statute, which provided that the driver of a vehicle shall not back it unless such movement can be made with reasonable safety and without interfering with other traffic, constituted negligence per se and quoted with approval, Chesser v. Taylor, 232 SC 46, 100 SE2d 540, and Green v. Sparks, 232 SC 414, 102 SE2d 435. Although the South Carolina Courts hold that a violation of the backing provisions of its Motor Vehicle Act is negligence per se, they do not so hold with regard to all of the provisions of the South Carolina Motor Vehicle Act.

At the time of the accident in the present case, chapter 95%, section 189a of the Ill Rev Stats, provided:

“(a) The driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic.”

This statute was amended in 1965 by the addition of paragraph (b) which now provides:

“ (b) The driver of a vehicle shall not back the same upon any controlled-access highway.”

The Illinois Legislature felt that the problem of backing on controlled-access highways required special treatment. I agree.


source: Caselaw Access Project

author: MR. JUSTICE DRUCKER

license: Public Domain

text:
    Leslie Kell, Plaintiff-Appellee, v. Alois Kosary, as Administrator of the Estate of Gertrude Kosary, Deceased, and Louis Kosary, Defendants-Appellants.
    Gen. No. 51,623.
    First District, Fourth Division.
    March 27, 1968.
    Mathew K. Szygowski, Moriarity, Rose, Faccenda & Hultquist, of Chicago, for appellants.
    Walter F. Briody, of Blue Island, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendants appeal from a judgment of $8,947.47 entered in favor of plaintiff after a bench trial. On appeal defendants contend that plaintiff’s claim for “extras” was barred by the Statute of Limitations, that the absence of a written agreement for extras as required by the contract barred the claim and that the testimony of plaintiff’s wife was incompetent.

The original complaint was filed on May 23, 1962, and alleged that plaintiff entered into a written contract with Gertrude Kosary on April 7, 1954; that he agreed to provide materials and labor for the improvement of certain buildings owned by the Kosarys for the sum of $19,810; that plaintiff provided all labor and materials required by the contract and also “additional work and materials requested by the defendants”; that the Kosarys had made certain payments but still owed plaintiff $8,947.47. Defendants’ answer admitted the execution of the contract but denied that it was executed on behalf of both defendants or that plaintiff did additional work or that there was any balance due under the contract and asked that the suit be dismissed.

Gertrude Kosary died after the filing of the original complaint and plaintiff was given leave to amend the complaint substituting the administrator of her estate for the decedent. Plaintiff then filed an amended complaint substantially repeating the allegations of the original complaint but adding “and requests” to a sentence reading: “That said defendants . . . made certain payments required under said contract and requests.” Defendants then moved to strike the amended complaint, first, because the written contract provided that any change of the original contract’s terms must be in writing and second, because any oral agreement was barred by the five-year Statute of Limitations. The court denied the motion to strike.

We believe the court erred in denying the motion to strike the complaint. It alleged that plaintiff was due $8,947.47 under a written contract for $19,810 and for “additional labor and materials requested of him.” Defendants stated in their motion to strike that the claim for “extras” was not in writing as provided in the contract and was therefore not enforceable. Their principal argument, however, was that the request for “extras” must have been oral and therefore barred by the five-year Statute of Limitations. Since the cause of action for the “extras” accrued in 1954, the institution of suit in 1962 is too late if it is governed by the Statute of Limitations for oral contracts. In Brown v. Kragel, 2 Ill App 414, plaintiff contracted in writing to perform the carpentry work in the construction of a house. Plaintiff sued on the written contract and for “extras.” While upholding the validity of the suit under the written contract, the court held that for the purposes of the Statute of Limitations the claim for “extras” was separate and barred by the five-year statute.

The amended complaint showed on its face that the amount claimed was due both under the written contract and for “requests” for additional work. In their motion to strike defendants stated that there was no written contract for these “requests.” Plaintiff did not contravene this assertion or assert any facts which would have removed the five-year bar of the Statute of Limitations on oral contracts. Therefore the “requests” for additional work had to be considered as oral and subject to the five-year Statute of Limitations.

Plaintiff now argues that the agreement for extras, though not reduced to writing, was a modification of the written contract itself rather than a separate agreement and therefore governed by the ten-year statute. The written contract called for the construction of nurses’ quarters, a garage and a building connecting the two. The “extras” were for the remodeling of an old garage with additional rooms and an extra bathroom and attaching the old garage to the building described in the written contract. The extra work was so different from that called for under the contract that it was the subject of a separate oral agreement rather than a mere modification of the written contract.

The motion to strike the amended complaint should have been allowed. Plaintiff combined both the amount due under the written contract and the amount due for “extras.” Since the evidence disclosed that there is a balance due plaintiff under the original written contract for $19,810, the plaintiff is entitled to seek recovery for any amount that may be due thereunder. We reverse the judgment and remand the cause with directions to strike the amended complaint and grant leave to plaintiff to file a second amended complaint for such amount as may be due plaintiff under the original written contract for $19,810.

We find no necessity for a consideration of other points urged by defendants.

Reversed and remanded with directions.

McCORMICK, P. J. and ENGLISH, J., concur.

       The contract provided:
      Any alteration or deviation from the above specifications involving extra cost of material or labor will only be executed upon written orders for same, and will become an extra charge over the sum mentioned in this contract. All agreements must be made in writing.

       The Statute of Limitations requires that suit be instituted within five years of the time the cause of action accrues on oral contracts and within ten years on written contracts. Ill Rev Stats, c 83, §§16 and 17 (1963).

       Ill Rev Stats, c 110, § 48 (1965) entitled “Involuntary dismissal based upon certain defects or defenses” provides in part in subsection (3):
      If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating grounds of defect, the court may hear and determine the same and may grant or deny the motion.

       We are not to be considered as holding that if the later agreement were properly deemed to be a modification of the original contract, it would necessarily follow that the ten-year limitation period would apply.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Appellee, v. Manuel Ramirez, Appellant.
    Gen. No. 51,859.
    First District, Fourth Division.
    March 27, 1968.

      Julius Lucius Echeles, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James A. Stamos, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged

Murder.

Judgment

After a jury trial, the defendant was found guilty and sentenced to a term of 14 to 20 years.

Contentions on Appeal

(1) The evidence was insufficient to establish defendant’s guilt.

(2) The prosecutor made prejudicial arguments to the jury.

(3) The court erred in instructing the jury.

(4) The totality of the circumstances surrounding the taking of an unsigned statement by defendant demonstrated a violation of his constitutional rights.

Evidence

Dr. James W. Henry, for the State.

He was the chief pathologist for the Coroner of Cook County. He examined the remains of decedent (Julio Fazio) on October 18, 1965. Death was caused by asphyxia from suffocation, which, in turn, could have been caused by the gag in decedent’s mouth. In his opinion, it was difficult to determine the time of death because of the body’s having been in the water. It could have been there for as long as three days. Death could have occurred at a location other than the quarry (referred to by other witnesses).

William Mitchell, for the State.

He was a Sheriff’s detective who helped raise the corpse from the water in Lemont quarry on October 17, 1965. The hands and feet were bound with wire. A piece of cloth tape secured a man’s sock in the mouth of the corpse.

At about 2:30 p. m. on October 19, Mitchell and Sgt. Harmon went to the apartment of Robert Bradford. Bradford, defendant, and two women were in the apartment at that time. Wire, similar in appearance to the wire which bound the body, was found in the apartment, and it was learned that the wire belonged to Bradford.

Bradford was taken to the police station. Although not arrested, defendant was asked to go along to the station. Defendant, accompanied by the two women, complied with this request.

Jerome Harmon, for the State.

He was a Sergeant in the Sheriff’s Police on October 19, 1965, when he and two other officers were admitted to Bradford’s apartment. His testimony substantially corroborated Mitchell’s description of the events occurring in Bradford’s apartment on the occasion of the officers’ visit.

Defendant arrived at the police station at 3:00 or 3:30 p. m. He remained in the waiting room until about 1:30 a. m., when he was informed that he was under arrest. Defendant was allowed to phone a lawyer and a member of his family. His lawyer told defendant that he was not to say or sign anything. The interrogation of defendant was continued until 4:00 a. m., when he was charged with murder.

Robert Erieson, for the State.

He was a Sheriff’s detective on October 20, 1965. At 12:30 a. m., he and Detective Repiczak talked to defendant in the police station. At 1:15 or 1:30 a. m., the interview was interrupted to inform defendant that he was under arrest and to allow him to call his lawyer and his family, which he did. Erieson identified an unsigned, typed statement as one which he typed to record an oral statement made by defendant. The statement was typed at about 4:00 a. m. (The statement was also identified by Mitchell and Repiczak, and was admitted into evidence.)

George Repiczak, for the State.

He substantially corroborated Ericson’s testimony, and testified that defendant’s oral statement was made in his and Ericson’s presence at about 2:30 a. m.

Unsigned, typed statement identified by the police officers as having been made by defendant.
“Between 3:30 A. M. and 4:00 A. M. [October 14, 1965] Judy and I arrived at Rob’s apartment, knocked at door, Bob Bradford came out to the hallway and I ask if we could stay, he said ‘You’re welcome to stay, but there’s a problem.’ He said, T have someone tied up.’ He said he didn’t want us to get involved. I told him, ‘Well we were tired and we just wanted to lay down somewhere.’ So he said alright come in. We went into the kitchen and Kay and Bruce were sitting at the table drinking. We went and sat down and started drinking. Bob said that his wallet was missing and that the fellow in there knew where it was. I told him I didn’t want to know anything about it. We stayed talking about my being in the House of Correction. About 5 minutes Judy passed out at the table. I asked Bob if it was alright if I layed her down. He said it was alright so I carried Judy in the front room and laid her on the couch. I seen a man sitting under the window tied. I went back to the kitchen, we talked a little more, then I went in and laid down with Judy. I went to sleep.
I woke up in the afternoon, Judy, Kay and Bob were there. We just stood there till late at night. I asked Bob what he was going to do with that fellow. He said he was going to get him out that night. He asked me to help him. I told him what did he mean help him and he said help him get him out of the house. I told him no I wouldn’t. He said just come with him for a drive. Sometime early Friday morning [Oct 15] Bob carried Julio downstairs, front stairs, and put him in the car. He carried him across his shoulders. He came back upstairs and told me that he was ready to go. We got in the car and left. Bob was driving, I was sitting in the front on the right and Julio was laying on the floor of the car in the rear. His head was on the right side of the car. We drove west on 87th Street till it ended. We turned right on to a divided highway. We didn’t go too far then we came to another red light, the first one I think, we turned left, went a little ways and went over a hill, kept going on that street, under a viaduct, over an expressway, the road narrowed to two lanes, passed through a small town, on the left side was some construction, continued on this road, through a heavy wooded area, went on till we came to an intersection and turned left, crossed over a big steel bridge, shortly after that he dropped me off at a tavern. I didn’t have any money so he gave me some and told me to wait there. I went into the tavern and had a beer. I drank my beer and went outside. They closed shortly afterwards. I waited there till Bob came back, about an hour and a half. When Bob came back I got in the car. I looked in the back seat and the man who had been tied up was not there. Bob didn’t say anything. He just drove around. He looked like he was in a daze. We returned to his house about 7:00 A. M.”

Manuel Ramirez, defendant.

Defendant denied the charges against him. He denied ever seeing anyone bound or gagged in Bradford’s apartment. Also, he denied making the oral statement identified by the police officers as having been made by him, and said that it did not speak the truth. Defendant did admit having been at Bradford’s apartment from October 14 until Bradford’s arrest on the 19th.

Opinion

The fact of Fazio’s death and the fact that it was caused by the criminal agency of someone are clearly established by the evidence. However, in order to sustain the conviction of this defendant (who was not shown to have performed the killing), the State must also have adduced sufficient evidence to prove beyond a reasonable doubt that defendant is legally accountable for the murder. The State correctly notes that the oral statement quoted above, which defendant denies having made, is the only evidence adduced in support of the State’s accountability theory.

In order to bring an accused within the purview of the statute, three propositions must be established: (1) that he solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) that this participation on his part must have taken place either before or during the commission of the offense; and (3) that it must have been with the concurrent, specific intent to promote or facilitate the commission of the offense. The issue here presented on review, therefore, is whether the oral statement, taken as true, supplies the facts necessary to satisfy these three requirements beyond a reasonable doubt.

First, as to the time element. The only evidence tending to establish the time of death is the pathologist’s testimony that death could have occurred as long as three days before his examination of the body. There is nothing in the record which establishes affirmatively that the decedent was alive at any time when defendant was present — no conversation, no moans, no struggling, no movement of lips or of eyes, or of any kind whatsoever. Thus, the State has failed to show that the conduct on the part of defendant, which it claims was sufficient to prove accountability, took place either before or during the commission of the murder.

The statute also makes it clear, we think, that the legislature did not intend to establish criminal responsibility simply through guilt by association — a thoroughly discredited doctrine. Uphaus v. Wyman, 360 US 72, 79, rehearing denied 361 US 856. Mere presence at the commission of a crime is not culpable. People v. Barnes, 311 Ill 559, 143 NE 445; People v. Cione, 293 Ill 321, 127 NE 646; Crosby v. People, 189 Ill 298, 59 NE 546; People v. Bracken, 68 Ill App2d 466, 216 NE2d 176. A strict definition has evolved the case law for the type of conduct to which the language “aid and abet” may properly be applied. See, for example, People v. Barnes, 311 Ill 559, 143 NE 445. Even consent, though involving moral turpitude, does not constitute aiding or abetting. Jones v. People, 166 Ill 264, 46 NE 723. See, also, People v. Womack, 73 Ill App2d 317, 219 NE2d 592.

The cases cited by the State are distinguishable on the facts. People v. Johnson, 61 Ill App2d 319, 210 NE2d 344; People v. Richardson, 32 Ill2d 472, 207 NE2d 478; People v. Clark, 30 Ill2d 67, 195 NE2d 157. People v. Bracken, 68 Ill App2d 466, 216 NE2d 176 is also distinguishable.

On the other hand, and factually analogous to the present case, is the opinion in People v. Shields, 6 Ill2d 200, 207, 127 NE2d 440, in which the court reversed a conviction on the ground that there had been no proof of any affirmative conduct of aiding or abetting the commission of the crime.

Finally, the State had the burden to prove the specific intent to promote or facilitate the commission of the murder. In this, too, it failed, as there is no evidence showing beyond a reasonable doubt that defendant shared the criminal intent of the principal, or that there was a community of unlawful purpose. And this is the type of intent necessarily present when one aids or abets. Johnson v. U. S., 195 F2d 673, 675. See Nye & Nissen v. U. S., 336 US 613, 619; U. S. v. Alexander, 219 F2d 225 (7th Cir) ; U. S. v. Peoni, 100 F2d 401, 402.

In view of the conclusions which we have expressed above, it becomes unnecessary to discuss the other errors assigned by defendant.

The judgment of the Circuit Court is reversed.

Reversed.

MCCORMICK, P. J. and DRUCKER, J., concur.

       At this time defendant was asked to make and sign a statement, which he did. This signed statement, in which defendant denied that he had ever seen the decedent, was held inadmissible. No reference to it was allowed in the jury’s presence.

       The State bases its case on the theory of accountability pursuant to Ill Rev Stats (1965), c 38, § 5-2, which provided, in part, that “a person is legally accountable for the conduct of another when: ... (c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”


author: MR. PRESIDING JUSTICE SMITH

text:
    Donald J. Cimino, Plaintiff-Appellant, v. Susan Hanley Cimino, Defendant-Appellee.
    Gen. Nos. 51,642, 51,731.
    First District.
    March 27, 1968.

      Kornfeld & Caplan, of Chicago (Eugene Lieberman, of counsel), for appellant.
    Stewart D. Spitzer and Jesse H. Brown, of Chicago, for appellee.
   MR. PRESIDING JUSTICE SMITH

delivered the opinion of the court.

The plaintiff-husband was granted a divorce on the grounds of adultery in a proceedings heard on complaint and answer. The wife did not testify. A property settlement contract and the divorce decree provided that the jointly-owned home should be sold and the net proceeds divided between the parties. Both likewise provided that each of the parties should bear his or her own attorney fees arising out of the divorce proceedings. The house was sold and a dispute then arose between the parties as to whether delinquent mortgage payments and taxes should be shared equally or whether they should all be charged to the plaintiff-husband. The sale of the property was consummated and the net proceeds of $4,321.91 was left with the lending agency of the buyer until a distribution of the proceeds could be determined by the court.

The husband filed his petition asking that the net proceeds be equally divided. The wife answered the petition stating that the husband had agreed to make the mortgage payment and real estate taxes which were delinquent and asked the court to so find. The wife offered in evidence on the hearing the testimony of the husband on cross-examination in the divorce suit which was as follows:

“Q. How much in arrears are you ?
“A. About one year, Sir.
“Q. Did you pay the taxes for 1965 ?
“A. Partial payment. Two Hundred Fifty-four dollars.
“Q. The second installment is still due and owing?
“A. Yes.
“Q. In the event of the property being purchased, you will deduct these payments, both taxes and the mortgage payments from your net, is that correct ?
“A. Correct.”

The court accepted this statement as a proper construction of the contract and decree and entered an order charging the delinquent payments to the husband. He appeals. This appeal is docketed here as 51,642. The wife then moved for the allowance of attorney fees for the defense of the appeal and the court allowed $600. The husband gave notice of appeal from this allowance. On motion, the court then allowed an additional $200 to the wife for the defense of the second appeal. This appeal is docketed as 51,731. The cases were consolidated in this court.

In this court, the husband argues that the words “your net” used in the last question quoted above from the cross-examination was understood by him to be plural and referred to the dual or total net. The wife contends that its proper interpretation refers only to the net 50 percent of the husband. The trial court adopted the wife’s interpretation. The written property settlement states:

“It is agreed that the home jointly owned by the parties hereto at 1836 - 75th Court, Elmwood Park, Illinois be sold at a price not less than $30,000.00 net, subject to the usual prorations and out of said sale there shall be paid to each of the parties fifty per cent of said net proceeds.”

The decree as abstracted states:

“Further ordered that the home jointly owned by the parties at 1836 - 75th Court, Elmwood Park, Illinois, be sold at a price not less than $30,000.00 net, subject to the usual prorations and out of the proceeds of said sale there shall be paid to each of the parties hereto fifty percent of said net proceeds.”

The decree signed by the judge bears the word “approved” over the signature of each attorney.

The issue involved in 51,642 is whether or not the court’s decree is a proper interpretation and implementation of the original divorce decree. The issue presented in 51,731 is whether the trial court properly allowed attorney fees on appeal where the property settlement agreement and the divorce decree each stated “each party shall pay their own attorney fees and court costs accruing out of said divorce proceedings.”

The wife contends that the trial court was obliged to follow the husband’s predecree statement on the well-known principle that in interparty contracts the intent of the parties is to be gathered by giving to the contract a fair and reasonable interpretation considered in the light of the circumstances under which it was made (Stevens v. Fanning, 59 Ill App2d 285, 207 NE2d 136), and that that intention will be given full force and effect unless it is repugnant to another rule of law or is against public policy and that the courts will not relieve against unwise or improvident agreements voluntarily and understandingly entered into between competent parties. Heckmann v. Mid States Development Co., 60 Ill App2d 113, 207 NE2d 715. We deal with a property settlement agreement signed by both parties. We also deal with a decree approved by the respective attorneys of each party. The language of each document is precise, plain, clear, unequivocal and devoid of any ambiguity.

Can testimonial interpretation of the husband furnish the springboard for modifying and altering the plain language of both documents ? We think not.

Our decision in this case should be, we think, controlled by Brandel v. Brandel, 69 Ill App2d 264, 216 NE2d 21. In that case, the petitioner sought to enforce the provisions of the decree as it read. The respondent there did not file a counterclaim seeking a modification of the decree within any provisions of our Divorce Act, but took the position, as does the defendant here, that the negotiations prior to decree supported his interpretation of the agreement and the decree even though contrary to their express language. Without passing upon the propriety of this contention, although recognizing it, the court turned to a principle grayed with age and venerated by repeated testing over the years. Simply stated, it is that the object of construction is to ascertain the intention which the parties have expressed in the language of the contract, and where the challenged instrument is unambiguous, the instrument itself affords the only criterion of the intention of the parties. 12 ILP, Contracts, § 213. Ambarann Corp. v. Old Ben Coal Corp., 395 Ill 154, 69 NE2d 835; Illinois State Toll Highway Commission v. M. J. Boyle & Co., 38 Ill App2d 38, 186 NE2d 390. We hold, therefore, as Brandel held, that there was no ambiguity either in the contract or in the decree and thus no question of construction arises. Even if it may be said that there was ambiguity arising out of the testimony of the plaintiff, two able lawyers and an able judge did not recognize it when the decree was presented and signed.

The trial court allowed the defendant $100 attorney fees for the trial in the trial court, $600 to defend the first appeal, 51,642, and $200.00 to defend the second appeal, 51,731. Chapter 40, § 16, Ill Rev Stats 1967, provides “in case of appeal by the husband or wife, the court in which the decree or order is rendered may grant and enforce the payment of such money for her or his defense ... as to such court shall seem reasonable and proper.” When the dispute over the division of the proceeds of the property arose, it was agreed between the parties that the lending institution should retain the net proceeds, $4,321.91, until an order of court interpreting the decree. The trial court’s order was entered on June 21, notice of appeal was filed July 6, appeal bond was approved July 11 and praecipe was filed for the record July 14. Thereafter the wife moved for the allowance of attorney fees. This came on for hearing on August 17, and she there testified that she had no funds to pay for attorney fees, that she had been paid $2,100 from the escrow fund and had given it to her mother to repay an indebtedness of about $3,000. She stated that she had no bank account and that she received this $2,100 about two weeks before. Thus at the time she parted with her $2,100, the appeal in 51,642 was then pending. With this knowledge, she nevertheless gave the $2,100 to her mother and thus emptied her purse. She did this, well knowing that the interpretation of the contract and the decree was not final. Thus by self-induced financial anemia, she now seeks a blood transfusion from her husband. Can she do this ? We think not. We are aware of the rule that the allowance of attorney fees in divorce matters is a discretionary matter. Berg v. Berg, 85 Ill App2d 98, 229 NE2d 282. This rule is circumscribed, however, by the rule that the allowance is justified only when the court finds that one spouse is financially unable to pay the fees and the other spouse is able to do so. Jones v. Jones, 48 Ill App2d 232, 198 NE2d 195. These rules may also be tinted by examining the circumstances which initiate the invocation of a judicial proceedings for relief. It has been held that where the party upon whom the fees are sought to be imposed has done nothing which necessitated or required judicial action, the allowance of fees is error. Moore v. Black, 10 Ill App2d 339, 134 NE2d 347. Here the record shows that the wife was unemployed, but was receiving $60 per week child support, plus extraordinary medical and dental bills. There is nothing in the record as to the husband’s financial ability to pay. The trial court and this court could take judicial notice, however, of the fact that there was in the escrow account 50 percent of the $4,321.91, which we assume for our purposes now was adequate to take care of attorney fees. By the same token, there was, after notice of appeal, in the same account for the benefit of the wife, completely unrestricted, a like amount until she disposed of it voluntarily with full knowledge that she had an appeal to defend. We further observe that the original property settlement between the parties contemplated that each party would pay his or her attorney fees. This divorce suit was not fully terminated until there was a sale of the property and a disposition of the funds. While the allowance is not necessarily contingent upon ultimate success, under the circumstances here present, we conclude that it was neither reasonable, proper or just to tax the husband with the wife’s attorney fees. Accordingly, the judgment of the trial court in 51,642 and the judgment in 51,731 are each reversed, and the judgment in 51,642 is remanded to the trial court with directions to enter an order authorizing and directing the lending agency to release 50 percent of the $4,321.91 to the husband and to release the remainder of said funds to the wife.

No. 51,731 — reversed. No. 51,642 — reversed and remanded.

TRAPP and CRAVEN, JJ., concur.


author: SCHEINEMAN, J.

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Harold Whittles and Darrell Lucas, Defendants-Appellees.
    Gen. No. 66-39.
    Third District.
    March 27, 1968.

      James L. Hafele, of Peoria, for appellant.
    George R. Kennedy, State’s Attorney, of Peoria, for appellees.
   SCHEINEMAN, J.

On January 7, 1966, three police officers in a squad car observed defendants on top of a store building in Peoria. A radio alarm brought two more officers in another car. After advising defendants of their rights, the officers questioned them regarding their presence and conduct.

Whittles volunteered: “I guess this would have been a good night not to have gone up there.” Lucas said: “I guess.” It is also related that Whittles told officers he and Lucas were going to get some television sets. Lucas just said: “Yes.” Another witness said cash was mentioned. Asked how they were going to remove the material : they had not thought of that yet. Asked how they got on top of the building, Whittles demonstrated.

On January 7, 1966, complaint was filed, charging defendants with attempted burglary. The magistrate continued the hearing thereon to January 21. The record does not indicate whether defendants were present in court.

On January 12,1966, the grand jury returned an indictment against these defendants. They were brought in court, served with copies, counsel was appointed and Whittles was served with a list of witnesses to a purported confession. This indictment was dismissed with leave to reinstate. On February 16, a new indictment was returned charging attempted burglary. Defendants were brought into court and served as before and counsel again appointed.

Thereafter, several motions were filed from time to time by the defense. They were heard by the court and overruled except that a continuance of the trial setting was allowed. Finally, trial commenced May 16, 1966, and resulted in verdicts of guilty. Motions in arrest and for new trial were denied and defendants were sentenced.

There is no substantial dispute as to the foregoing statement of facts, but the defense asserts five reasons for reversal. They are here presented in the order of the argument in appellants’ brief.

It is claimed defendants were denied due process of law, in that they were not taken without unnecessary delay before the nearest and most accessible magistrate after the arrest, in violation of section 109-1 (a), chapter 38, Illinois Revised Statutes.

It is argued the effect of this detention without counsel prevented them from locating witnesses who might have provided an alibi defense. Also, that the lack of counsel thus occurred at a most critical stage of the proceedings.

The reference to alibi witnesses is not impressive. Here there were five eyewitnesses to the activities of the defendants as charged, plus their own admissions of an inculpatory content. A persuasive alibi defense could hardly be procured in this situation. Moreover, the inability to locate witnesses is refuted by the defense calling three witnesses who saw the defendants in taverns shortly before their arrest, one of the taverns being next door to the building which defendants climbed.

The purpose of these witnesses was to testify that the defendants were drunk fifteen minutes before their arrest. Whatever effect drunkenness might have, it suffices to say other witnesses testified the defendants were not drunk, and the jury had before them the circumstances that the defendants conversed while they were in the taverns, left under their own power, and climbed to the roof of a store building. The jury had ample reason to disbelieve the claim of drunkenness.

During the six days defendants were in jail without counsel, no attempt was made to obtain any statements from them. The appellants cite People v. Moriarity, 33 Ill2d 399, 211 NE2d 704, in which a defendant had been held in jail 10 days and a confession obtained. The court declared the detention was illegal, and held the confession was not voluntary, therefore not admissible. Since no statements were procured from these defendants, it is our conclusion that no substantial prejudice was caused to them and this point is overruled.

It is contended the indictment should have been quashed for failure to state an offense. The charge was that defendants “pried a hole in the roof of a building with intent to commit the offense of burglary by entering the building with intent to commit a theft therein.”

The first part of this charge refers to an attempt to commit a specific offense: burglary. The second part adds facts, which, if they took place, would constitute the offense of burglary. When they were not completed but a formal step was taken for that purpose, the offense is attempted burglary. The indictment is clear and is adequate to inform the defendants of the nature of the charge against them. People v. Pronger, 48 Ill App2d 477, 199 NE2d 239; People v. Donaldson, 341 Ill 369, 173 NE 357.

It is also contended that the trial court erred in refusing to allow Lucas’ motion for severance. This is based on the fact that the State’s attorney had a purported confession by Whittles which implicated Lucas. The State did not offer to introduce this purported confession into evidence, therefore the basic reason adduced for a severance did not arise. Even where the confession of a codefendant is put in evidence, if all references to the party applying for a severance are eliminated, the severance is not required. People v. Strayhorn, 35 Ill2d 41, 219 NE2d 517. It was not error to deny a severance in this case.

The appellants argue that the statements made at the time of their arrest should not have been admitted in evidence, because no proper list of witnesses had been furnished to them as required by section 114-10 of chapter 38, Illinois Revised Statutes. They were furnished with a list, but not all of those on the list were called to testify. This is not a defect, no harm results to a defendant upon failure to call all witnesses who are named. People v. Hulet, 66 Ill App2d 194, 214 NE2d 299.

The appellants cite People v. Pelkola, 19 Ill2d 156, 166 NE2d 54, in which a witness was used although his name did not appear on the furnished list. That is quite different from failure to call a named witness, and that case is not applicable to the case at bar. Moreover, these statements made by defendants at the time of the arrest, were not confessions; they were merely admissions of inculpatory facts which might raise an inference that defendants were involved in a criminal venture, but without actually confessing the elements of the crime. These statements are admissible in evidence without the prerequisites required for a confession. People v. Kircher, 309 Ill 500, 141 NE 151; People v. Peto, 38 Ill2d 45, 230 NE2d 236 (Sept 1967).

Finally, it is argued that trial counsel was incompetent so that defendants were denied their constitutional rights. This is based partly on the failure of counsel to file a motion to suppress the oral statements. Such a motion would have been useless since, as stated before, the remarks by the defendants were relevant admissions. Another claim of incompetence is based on the delay of several months before the case was brought to trial. It is not uncommon strategy of defense counsel to delay trial as long as possible, in the hope that the key witness for the prosecution will become unavailable, or that cross-examination may show the witnesses’ memories are confused and unreliable, thus raising a reasonable doubt of guilt. A reviewing court should not find that this strategy is evidence of incompetence. As for the record in this case, counsel on the appeal might well have observed that he was not confronted at any time with a claim that no objection was made in the trial court and, therefore, the matter is not available on review. Trial counsel either by motion or by timely objections, preserved for review all rights of defendants and no indication of incompetence is apparent.

A motion to dismiss this appeal was taken with the case. Since we have considered and passed on the merits of the case, the motion to dismiss is denied.

Finding no reversible error in this proceeding, the judgments of the trial court are affirmed.

Judgments affirmed.

ALLOY, P. J. and STOUDER, J., concur.


text:
    People of the State of Illinois, Plaintiffs-Appellants, v. Pedro Lopez, Defendant-Appellee.
    Gen. No. 67-44.
    Third District.
    March 27, 1968.
    David S. Schechter, of Chicago, for appellants.
    Robert E. Richardson, State’s Attorney, of Ottawa, for appellee.
   SCHEINEMAN, J.

The defendant, Pedro Lopez, was indicted on two counts, in Count I for murder and in Count II for manslaughter. He waived a jury and his bench trial resulted in a finding he was guilty of murder. He was sentenced to the penitentiary for twenty to fifty years.

The defendant had a woman living with him named Stella. They had spent an evening in a tavern, returning home about 11:30 p. m. They had been observed quarreling to some extent in the tavern although not creating any disturbance. On their return home they sat down at a kitchen table on which there lay a knife. According to the defendant’s testimony the woman continued to argue and call him dirty names and cursed his parents. He became enraged and picked up the knife and stabbed her fatally. He says of his act, “I mad. I hit.”

Apparently he was remorseful and went to a tavern in the vicinity where he told the owners he had killed Stella and asked the man to call the police. The defendant denied he made the statement but both proprietors testified to it. He was taken first to the police station and later to the scene of the crime. The police contended that they warned him of his rights and that in reply to a question as to what happened, he repeated his inculpatory statement made to the tavern owners that he had killed Stella. During the time he was at the police station he asked to contact a friend called Eddie Pelka. The police refused to allow this call telling him that Pelka was a tavernkeeper, not a lawyer. The defendant was a man sixty-seven years of age, of Mexican origin, without formal education and had difficulty with the English language. The defense contends these facts made it unlikely he really understood his rights.

Under these circumstances the defense contends that a confession he gave at the police station should not have been admitted into evidence, especially since he had not been permitted to contact his friend. The literal wording of the Illinois rule requires the police to permit an accused person to contact a lawyer and a member of his family. We are of the opinion that the spirit of the rule would include a friend and the police should have permitted him to make his contact. However, we fail to see that any real prejudice resulted to him, for if his friend had come and advised him, it would do no good to tell him not to make any incriminating statements, since this had already been done at the tavern.

Miranda v. Arizona, 384 US 436, prescribed the warning which must be given prior to a confession in order to make the statement admissible. That case also excludes from its application volunteer statements such as the defendant’s remark that he killed Stella. The restrictions in that precedent do not apply in this case.

The defendant took the stand in his own behalf and described the activities leading to the homicide. He says the woman continued to argue, that she called him vile names and cursed his parents.

The interpreter translated him as to his condition, thus: “I was so angry I lost all sense of myself, I don’t know how I picked up the knife, and I didn’t even know what I had done.” He also denied any intent to kill.

His confession in evidence consists largely of a recital of what the deceased had called him, — with much repetition.

The owner of the tavern where defendant and Stella spent the evening testified there had been some quarreling, although not disturbing to other patrons. Defendant had a fisherman’s knife in his shirt. The owner tried to get it from him, but Lopez refused to part with it although he allowed the owner to see it. Apparently this was the knife on the kitchen table at the time of the fatal assault.

It is argued on this appeal that, in view of the abuse and vituperation by the victim, the defendant should not have been found guilty of murder but rather of manslaughter. But the Illinois Criminal Code allows a homicide to be classed as manslaughter only when there has been serious provocation, and gives this definition: “Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” Chapter 38, par 9-2, Ill Rev Stats.

In a number of Supreme Court cases it has been held that mere words do not constitute sufficient provocation under this statute.

The recent case of People v. Crews, 38 Ill2d 331, 231 NE2d 451, refers to this rule, citing People v. Washington, 27 Ill2d 104, 187 NE2d 739; People v. Harris, 8 Ill2d 431, 134 NE2d 315; People v. Sain, 384 Ill 394, 51 NE2d 557; also the committee comments to this section of the Criminal Code in Smith-Hurd Annotated Statutes.

According to the testimony of the defendant, the deceased used abusive language toward him, but that is all. There was no testimony charging an assault, or even a threatened assault.

Under these conditions the finding of guilty of the charge of murder was justified. The judgment is affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.


author: CULBERTSON, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Lloyd Lacey, Defendant-Appellant.
    Gen. No. 67-59.
    Third District.
    March 27, 1968.

      Donald E. Blodgett, Public Defender, of Rock Falls, for appellant.
    William G. Clark, Attorney General of State of Illinois, of Springfield, and L. E. Ellison, State’s Attorney, of Sterling, for appellee.
   CULBERTSON, J.

After a jury trial in the Circuit Court of Whiteside County, the defendant, Donald Lloyd Lacey, was convicted of burglary and sentenced to the penitentiary for a term of not less than two years nor more than ten years. He has appealed contending that he was not proved guilty beyond a reasonable doubt, and that the trial court committed reversible error in a ruling on evidence.

Recourse to the record shows that during the early morning hours of January 19, 1967, police officer Gordon Millerschone was on motor patrol in the City of Morrison. Around 3:45 a. m. he observed a light colored Rambler automobile parked near the Spot Tavern, located at 125 Main Street. As was his custom, the officer wrote down the first three digits of the license number and then continued on his patrol. Shortly thereafter, as he was stopped for a traffic sign, the same vehicle drove past him and he saw that it was occupied by two men, one of whom he thought was wearing glasses. At this time he wrote down the entire license number. He then drove back to where the car had been parked near the tavern and discovered two sets of footprints in the snow leading to the back entrance of the tavern. Upon seeing that the glass had been broken out of the door, he radioed the sheriff’s office and then aroused Richard Kicksey, a son of the tavern operator, who was sleeping in an apartment located above the business. After entering the tavern the two men found glass on the floor in front of the back door, and noted evidence that the place had been ransacked. Kicksey, who had closed the tavern at midnight, then checked a cash drawer and register, wrote the amount missing on a slip of paper and gave it to Millerschone. The latter then radioed this further information to the sheriff’s office.

Later in the day the police contacted Robert Barker, a former brother-in-law of defendant, who lived on the outskirts of Morrison. He admitted that he had been using his mother’s yellow Rambler automobile the previous evening and, at the trial, likewise admitted that its license number corresponded with that testified to by officer Millerschone. Although Barker first denied any knowledge of the burglary, he soon recanted and implicated defendant. At the trial he admitted having been in the company of defendant and the latter’s half-brother, Russell Lucas, on the evening of January 18, 1967. He stated that they had spent about an hour in the Spot Tavern from 8:00 to 9:00 p. m.; that they returned to his home for about half an hour, then went back to the Spot Tavern and had a few more drinks before going to another tavern. According to Barker, the three men again went to his home but defendant and Lucas left around 11:30 or 12:00 o’clock, driving his mother’s Rambler. The witness said he went to sleep, that he was awakened when defendant and Lucas returned, and that he watched them counting currency which came to a little over $800. He said he was given $40 in change, although he professed not to know why, and that defendant and Lucas left in their own automobile at 5:30 a. m.

Harm Fredricks, the operator of a truck stop at Lyndon, nine miles from Morrison, testified that defendant and Lucas had been at his place of business around 1:30 a. m. on the morning of January 19, 1967, that they were driving a yellow Rambler, and that they didn’t stay long. He further stated that the two men returned to the station close to 4:00 a. m., still in the Rambler, at which time they purchased gasoline and defendant said he was headed for Texas. The witness indicated that he had known defendant before, but did not know Lucas.

Defendant, who stated that he was residing in Davenport, Iowa, on the date of the crime, testified in his own behalf and agreed that the movements of himself, Barker and Lucas in and around Morrison prior to midnight of January 18, 1967, were substantially as Barker had testified. Additionally, and most importantly, defendant admitted that he and Lucas had driven the Rambler automobile when the two of them left the Barker residence around 11:30 p. m. He categorically denied, however, that he had broken into the Spot Tavern; that he had later counted money in the Barker home; that he had had more than $10 or $15 on his person that night; or that he had given money to Barker. By defendant’s version, after he and Lucas left the Barker home around 11:30 p. m. they drove to the Fredrick truck stop in Lyndon where they obtained something to eat and remained for approximately three or four hours, passing the time by talking between themselves and with a waitress. He said they left Lyndon between 4:15 and 4:30 a. m., that they purchased gasoline before they left, and that they returned to Barker’s home just long enough to get their own car before starting their return to Davenport.

Unquestionably the evidence shows conclusively that the crime of burglary was committed by some person or persons who broke and entered the Spot Tavern. It is defendant’s contention, however, that he was not proved guilty beyond a reasonable doubt due to the circumstantial and doubtful nature of the evidence connecting him with the crime. But circumstantial evidence is legal evidence which will support a conviction, it being necessary only that the circumstances proved be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable certainty that the accused and no one else committed the crime (People v. Bernette, 30 Ill2d 359, 197 NE2d 436; People v. Grizzel, 382 Ill 11, 46 NE2d 78). Where such evidence is of so strong and convincing a character as to satisfy the jury of the guilt of an accused beyond a reasonable doubt, its verdict must be sustained (People v. Wilson, 387 Ill 563, 56 NE2d 630). It is only where a conviction rests on circumstantial evidence that raises little more than a suspicion against an accused and leaves a grave and serious doubt of guilt, that a court of review is justified in disturbing a jury’s verdict (People v. Dougard, 16 Ill2d 603, 158 NE2d 596).

From a careful scrutiny of the record in this case we are convinced the jury was fully justified in finding that defendant had been proved guilty beyond a reasonable doubt. He was familiar with the tavern premises, having gone there on two occasions a matter of hours before the burglary; an automobile which he admitted was in his custody from 11:30 p. m. to until shortly after 4:30 a. m. was seen unoccupied at the place where, and at the time when, the burglary was committed (Cf. People v. Wilson, 387 Ill 563, at 567, 56 NE2d 630); footprints in the snow were traced from the place the vehicle was parked to the smashed rear door of the tavern; it was established that a substantial sum of money was missing from the tavern; and within an hour after the discovery of the burglary defendant and Lucas were observed counting a large sum of currency at the Barker home. Proper to consider, too, are the circumstances that defendant and Lucas used the Rambler automobile of Barker’s mother, even though their own vehicle was operable, and that Barker was paid the sum of $40 for some unexplained reason. It is true that defendant denied the majority of these circumstances, and that he interposed the alibi, contradicted by Fredrick, that he and Lucas remained at the restaurant in Lyndon from about 11:30 p. m. until 4:15 or 4:30 a. m. However, it was the function of the jury to determine the credibility of the opposing witnessed and the weight to be accorded their testimony, and we see no basis for substituting our judgment in such respects.

Similarly, we do not find, as defendant contends, that an insurmountable doubt of his participation in the crime arises from the testimony of officer Millerschone that he first saw the Rambler automobile in Morrison around 3:45 a. m., and the testimony of Fredrick that defendant returned to the truck stop at Lyndon, nine miles away, close to 4:00 a. m. Both witnesses were patently giving only estimates of the time, as the jury was aware, and the discrepancy is not so great as to overcome the other circumstances connecting defendant to the crime. (Cf. People v. Dennis, 28 Ill2d 525, at 527-528, 193 NE2d 14.) In our opinion there was sufficient evidence to permit the jury to satisfactorily conclude beyond a reasonable doubt that defendant had committed the crime.

After proper foundation testimony by the radio operator involved, the prosecution was permitted to introduce into evidence the sheriff’s radio log for January 19, 1967, which reflected, among other things, that Millerschone had reported the sum of about $700 as having been taken in the burglary. Prior to this George Kicksey had testified that he thought about $500 had been taken, and Millerschone had stated that he no longer had in his possession the slip of paper Kicksey had given to him on the night of the crime. Defendant asserts here, as he unsuccessfully objected below, that the log and the testimony of the operator were improper hearsay evidence. We do not agree. As an exception to the hearsay rule, it has been repeatedly held that records kept by a public officer, dealing with his official activities and either required by statute or reasonably necessary for the performance of the duties of the office, are admissible to prove the matters recorded (Bell v. Bankers Life & Casualty Co., 327 Ill App 321, 64 NE2d 204; Cleary, Handbook of Illinois Evidence, 2nd ed, § 17.39; Wigmore on Evidence, 3rd ed, vol V, § 1639). Surely in this day of law enforcement by modern equipment, a radio log is a record reasonably necessary for the proper and orderly conduct of a sheriff’s office and, as such, was properly admitted into evidence. (Cf. People v. Halpin, 276 Ill 363, 375-376, 114 NE 932 (daily patrol sheets); General Exchange Ins. Corp. v. McRoy, 268 Ill App 425 (theft notification record); Frederick v. City of Peoria, 203 Ill App 486 (certificate of appointment).)

The judgment of the Circuit Court of Whiteside County is affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.


author: STOUDER, J.

text:
    Cora Wallinger, Executor of the Estate of Harley H. Wallinger, Sr., Deceased, Plaintiff-Appellant, v. Martin Stamping and Stove Company, a Corporation, Defendant-Appellee.
    Gen. No. 67-52.
    Third District.
    March 28, 1968.
    Rehearing denied May 17, 1968.

      McConnell, Kennedy, McConnell & Morris, of Peoria, for appellant.
    Cassidy, Cassidy, Quinn & Lindholm, of Peoria, for appellee.
   STOUDER, J.

Plaintiff-Appellant, Cora Wallinger, as administrator of the estate of Harley Wallinger commenced this action in the Circuit Court of Tazewell County. Count three of the complaint as amended sought damages for the wrongful death of Harley Wallinger resulting from the conduct of Martin Stamping and Stove Company, Defendant-Appellee. At the close of the evidence the court granted Defendant’s motion for a directed verdict and subsequently entered judgment against Plaintiff.

On this appeal Plaintiff argues that the court erred in excluding certain photographs and in directing a verdict in favor of Defendant, there being ample evidence in support of Plaintiff’s claim to require submission of the issues to the jury.

In December, 1964, Talbott purchased a gas space heater from Manito Hardware Company in Manito, Illinois. He installed the heater in his cabin on Anderson Lake. About a month after the heater had been installed and at the invitation of Talbott, Harley Wallinger together with four other guests spent the weekend with Talbott at the cabin. When the guests at the cabin failed to return home as expected, an investigation ensued resulting in the discovery of Talbott and his guests dead in the cabin. The deaths were caused by carbon monoxide poisoning while the occupants were sleeping.

As shown by the evidence, subsequent tests of the gas heater revealed it to have been improperly vented, resulting in incomplete exit of the combustion gases through the vent pipe and consequent accumulation of carbon monoxide in the cabin. A short horizontal pipe led from the gas heater to the outside of the cabin and then extended upwards a short distance. The failure of the vertical portion of the vent pipe to extend higher than the peak of the roof caused incomplete exit of the combustion products.

The amended count of the complaint alleged the conduct of the Defendant to be negligent and careless in four respects. First, that the instructions for installation and venting the heater were erroneous and improper; second, that there was a failure to warn against the consequences of improper venting of the heater; third, that the heater was improperly designed and fourth, the heater lacked proper safety devices.

The evidence that Wallinger’s death by carbon monoxide poisoning was caused by improper venting of the gas heater is not contradicted. The heater was being used for the purpose for which it was designed, manufactured and sold and could not be used for such purpose without venting. Included with the heater was a four-page pamphlet of instructions. It is the nature of the heater itself and the instructional pamphlet which are primarily the basis for Appellant’s claim.

This case presents certain problems which reflect a transition in the theories and principles of manufacturers’ liability. The second amended complaint in this cause was filed in September, 1964, nearly one year prior to Suvada v. White Motor Company, 32 Ill2d 612, 210 NE2d 182. Paragraph seven of the amended complaint alleges a theory of liability on the part of the defendant manufacturer based on negligent or careless acts or omissions. Thus it can be seen that the full import of the Suvada principles i. e. liability without negligence cannot be applied to the issues raised by the pleadings and it is according to the issues so raised that the sufficiency of the evidence must be considered.

The Suvada case does reflect other principles regarding manufacturers’ liability, which, insofar as they relate to the prevailing principles of liability, are applicable in this case. It is recognized that the liability of manufacturers may be based on tort and is not limited to warranties either express or implied. It appears that the rights of an injured party are no longer restricted to products inherently or eminently dangerous nor is the liability of the manufacturer limited solely to a breach of the implied warranty that the product is safe for the use intended. See Biller v. Allis Chalmers Mfg. Co., 34 Ill App2d 47, 180 NE2d 46, which discusses Illinois cases and is illustrative of the difficulty of determining and applying the rules concerning inherently dangerous products. In Pitts v. Basile, 35 Ill2d 49, 219 NE2d 472, the court approved the conclusion of the Appellate Court which found that a toy dart was not inherently dangerous but rather than-reversing the decision because of this conclusion the court considered other and broader aspects of a manufacturers’ duties such as the failure to warn of the consequence of use and improper packaging. The court concluded that the generalized consequences of the misuse of a toy dart were such as not to impose any duty on the manufacturer with regard thereto and in this connection the court relied both on the observation that any toy can be misused and that the remote vendor could not have practically affected such result by other conduct. Further the court determined the packaging of the darts could not have been a cause of the injury since the evidence indicated that the purchase was not induced by the packaging. It thus appears from the Pitts case, supra, that the duties of a remote vendor at least in part, may depend upon the application and extension of our customary tort theories where the duty is related to the foreseeability of consequences and the causal relationship between acts and conduct and the result.

In considering the duties of a manufacturer of a vented gas heater, the product manufactured, sold and distributed in the instant case, it may well be that there is no general duty to warn against the risks or hazards of failing to remove the products of combustion from the room or area in which the combustion takes place. In this respect it can be said that the knowledge of such requirement is generally known and no duty to warn against the obvious is required of a manufacturer, particularly since it can been seen that an admonition not to use the heater without removing the products of combustion would not materially add to the information possessed by the purchaser or affect any consequent failure so to do. However to say that the purchaser is generally aware of the necessity of removing products of combustion is not to say that the purchaser may be expected to know the proper or safe method of so doing. Where the manufacturer undertakes to instruct in the proper use of the product it can be inferred that such instruction is intended to have some effect upon the purchaser which effect or consequence should be foreseen by the manufacturer. Where the instruction on use is not adequate or accurate the failure of the manufacturer may be negligence. Hartman v. National Heater Co., 240 Minn 264, 60 NW2d 804, 810 (1953).

The rule with respect to the direction of a verdict as announced in Pedrick v. Peoria & E. Ry. Co., 37 Ill2d 494, 229 NE2d 504, is that a verdict should be directed where the evidence when considered in its aspect most favorable to the opposite party so overwhelmingly favors the movant that no contrary verdict could be permitted to stand. The evidence is largely undisputed and the resolution of the controversy depends upon the inferences which may be reasonably drawn from such undisputed evidence. We believe that the inferences which may be reasonably drawn from the evidence are substantially conflicting and if resolved in favor of the plaintiff would be sufficient to support a verdict of the jury in favor of plaintiff.

Central to the dispute is the four-page pamphlet admittedly supplied with the heater, there being no other evidence from which it can be inferred that the heater was defective, was negligently designed or negligently lacked safety devices. The pamphlet is entitled “Instructions, Operating and Installation, Martin Vented Gas Heater — General Information.” The pamphlet includes such statements as, “To conform to local codes this heater should be installed by a licensed gas appliance installer and inspected by the local gas inspector or utility inspector”; “This heater must be connected to a flue”; “Warning: It is recommended that gas heating equipment not be operated in an absolutely air-tight room unless some provision is made to provide air for combustion”; “Do Be sure flue is drawing”; “Don’t be satisfied with an inferior job of installation”; and “It is desirable to have a qualified serviceman install your heater. Remember that the Martin heater is designed and built for maximum satisfaction and safety, but that it has to be properly installed.” The pamphlet also includes a cutaway drawing of the heater showing an attached vent pipe which according to plaintiff extends upward about the same distance as the one installed in the instant case and which according to defendant did not purport to deal with height of the vent pipe.

The dealer who sold the heater to Talbott testified concerning conversations which took place at the time the heater was sold. Another witness testified concerning a part of the conversation and also that he had helped Talbott install the heater relying upon the instructions included.

According to defendant the cause of death was the improper installation of the vent pipe which cause was unrelated to any conduct on its part and it contends that the only reasonable inferences from the evidence negate any duty, breach thereof or causal relationship to the death which occurred. Defendant contends that the only reasonable inferences which may be drawn from such instructions are that the purchaser was adequately warned of the need of proper installation, that the heater should be installed or inspected by a professional installer. Further it could not be expected to advise or instruct in accord with the myriad of local codes which might be applicable and that additional warnings concerning improper installation would not have affected the result. We agree that the evidence supports such inferences but we believe that other conflicting inferences may also be drawn. It can be inferred that the instructions were ambiguous insofar as they indicate the necessity of installation or inspection by professional installers or that the installation should conform to local codes, there being no local codes applicable. The instructions do not include any reference to the proper height of the vent pipe or the consequences of failing to elevate the vent pipe to an appropriate height, i. e. above the peak of the roof, except insofar as the cutaway drawing may be related thereto. Whether the instructions should have in-eluded such directions or warning presented a question of fact considering the instructions as a whole.

Accordingly we believe the trial court erred in directing a verdict in favor of defendant.

Plaintiff also argues the trial court erred in excluding certain photographs. The photographs in question were taken shortly after the bodies were discovered and in depicting the inside of the cabin portrayed the bodies of the decedents as found. If the evidence has a reasonable tendency to prove some material fact in issue, such evidence may properly be admitted, and the question is one properly within the discretion of the trial court. Pitrowski v. New York, C. & St. L. R. Co., 6 Ill App2d 495, 128 NE2d 577. We believe there was no abuse of discretion by the trial court in excluding such photographs. Whatever facts such photographs might tend to prove were not disputed issues. It is undisputed from other evidence that decedent was in the cabin and died of carbon monoxide poisoning while asleep. Furthermore, there is no dispute concerning the cause of the accumulation of carbon monoxide resulting in the death. Under such circumstances we believe the trial court could and did consider that such photographs were not relevant to the issues as developed by the evidence.

For the foregoing reasons the judgment of the Circuit Court of Tazewell County is reversed and remanded with directions that a new trial be granted.

Judgment reversed and remanded with directions.

ALLOY, P. J. and HOFFMAN, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    Estate of John Baskin, Deceased. Anna Sukenik, Claimant-Appellee and Cross-Appellant, v. Hinda Baskin, Administrator of the Estate of John Baskin, Deceased, Respondent-Appellant and Cross-Appellee.
    Gen. No. 52,000.
    First District, Third Division.
    March 28, 1968.
    J. Edward Jones, of Chicago, for appellant.
    Nat. M. Kahn, Richard G. Kahn and Norbert N. Rosenthal, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

This is an appeal and cross-appeal from an order entered in the Probate Division of the Circuit Court. Hinda Baskin, the administrator of the estate of her father, John Baskin, appeals from that part of the order which allowed a claim for housekeeping services rendered to her father. Anna Sukenik, the claimant, cross-appeals from that part of the order which denied her a life estate in the first-floor apartment of the two-story apartment building owned by the decedent.

John Baskin, a widower, requested Anna Sukenik, a distant relative of his deceased wife, to keep house for him. She agreed and lived in his home for the three years preceding his death. In her claim she stated that Baskin promised to pay her for the household chores and to compensate her further with a life estate in his apartment, but that neither promise was kept. She placed the value of her services at $100 a week for 154 weeks or a total of $15,400. The trial court found that there was no express contract for her services. The court found, however, that there was an implied contract to pay her and awarded her the sum of $2,600; this was based on the reasonable value of the services for 130 weeks at $20 per week. Against this sum, the court allowed a setoff of $1,500 for rent due to the estate because she resided in the apartment without paying rent for ten months after Baskin’s death. The court sustained the administrator’s motion to strike the claim for specific performance of the promise of a life estate in the decedent’s property.

The administrator contends that the claimant did not prove that there was an implied contract between her and the decedent, but if there was such a contract she was fully compensated. In the alternative the administrator argues that there was inadequate proof of the value of her services. In her cross-appeal the claimant acknowledges that the court could not have granted her prayer for specific performance because the pleadings revealed that Baskin’s property was held in a land trust for the benefit of himself and daughter which made the unilateral conveyance of his beneficial interest impossible. She contends, however, that she is entitled to damages in an amount equivalent to the monetary value of the life estate and estimates this to be $17,051.18.

No such contention was made by the claimant in the trial court. The closest approach to such a contention came at the conclusion of her case. Before resting, she offered in evidence tables showing her life expectancy. An objection was made which the court sustained. Her attorney then asked:

“Would your rule be the same if we advised the Court that in the alternative, if the Court does not see fit to give us specific performance in a life estate, we ask for the value of a life estate in money; if we cannot get specific performance.”

The court responded:

“My rule would be the same in both. I would sustain the objection in either event.”

This was nothing more than an intimation that there might be an alternative claim if the court did not grant specific performance. The intimation was never formalized. No motion to amend the claim was made at this time and no motion was made after specific performance was denied. While the claimant may have been discouraged from pursuing the subject because of the court’s response, the suggestion that there might be an alternative claim cannot be considered a substitute for such a claim. Moreover, implicit in the court’s finding that there was no express contract to reimburse the claimant for her services, was the finding that there was no contract to reimburse her with a life estate.

The claimant’s witnesses testified that she shopped, cooked and kept house for Baskin from January, 1963, to December, 1965. They all testified that Baskin (who was ten years older than the claimant) said he was pleased with her work. Two of them testified that he told them he intended to pay her. One of them heard him say that he would take care of her as long as she lived; and the other one was present in the Baskin home when the claimant complained that she was not getting paid; the witness heard Baskin reply that he would take care of her and that she could stay in the apartment as long as she was alive.

Witnesses for the administrator testified to statements and actions by the claimant inconsistent with the alleged promises made by Baskin. Two neighbors said that after Baskin’s death she inquired about renting an apartment or room; and one of them added that, in speaking of her financial circumstances, she said that Baskin had remunerated her for keeping house for him. Baskin’s son admitted that the claimant was his father’s housekeeper but testified that at no time after his father’s death, although he saw her every week at the apartment, did she say anything about a life estate in the property. Baskin’s daughter, the administrator of his estate, served an eviction notice upon her. The daughter testified that she did not claim a life estate at the time the eviction notice was served.

The administrator also introduced into evidence twenty-six checks of the decedent payable to the order of the claimant. These checks, dated from October 1, 1964, to December 12, 1965, were in small amounts of $5, $6 and $10, and totaled $156 in all. The stubs for some of these checks stated that the checks were for services. Also introduced were stubs without checks, dated from August 5, 1963, to October 24, 1965. These stubs totaled $235. With the exception of five stubs for $19 each, the stubs were for $5 and $10. A few of the stubs indicated that the checks had been issued for labor and services. The claimant explained that in some instances she wanted to pay her personal bills by check and she gave Baskin cash in exchange for the checks. According to her, the $19 checks were in this category; she stated that these were to pay her hospital insurance.

From the above testimony it can be seen that the evidence presented questions of fact as to whether or not the decedent expressly or impliedly promised to pay for the claimant’s services and whether or not he promised to give her a life estate in his property. The conclusions of the trial court will be upheld on review unless they are manifestly against the weight of the evidence. Hood v. Brinson, 30 Ill App2d 498, 175 NE2d 300 (1961). Each finding made by the court was supported by substantial evidence: that the parties intended a nongratuitous relationship, that there was an unfulfilled obligation to compensate the claimant and that the decedent had not agreed to give her a life estate in return for her housekeeping.

In arriving at the amount of compensation due the claimant, the court took into consideration the testimony of one of her witnesses as to the prevailing rates paid housekeepers during the years 1963, 1964 and 1965. These rates were higher than the compensation the court allowed. But the court also took into consideration the testimony of witnesses for both parties that the claimant occasionally had part-time employment outside of the Baskin home. Their testimony disclosed that she worked at various times as a furrier’s assistant, seamstress, babysitter and in a dry-cleaning establishment. The court’s estimation of the number of weeks she worked for Baskin, and the figure he fixed as the weekly value of her services (in addition to her room and board and the small payments received by her), were reasonable approximations based on the testimony and evidence presented at the hearing. The court’s conclusions were not against the manifest weight of the evidence.

The other contentions raised by the parties are without merit and need not be reviewed.

The judgment of the Circuit Court is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.