author: MR. JUSTICE SCHWARTZ

text:
    Continental Mortgage Company, a Corporation, Plaintiff-Appellant, v. Hussmann Refrigeration, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 51,009.
    First District, Third Division.
    March 23, 1967.
    Ralph Jonas, of Chicago (Marks, Marks and Kaplan, of counsel), for appellant.
    Samuel S. Siegel, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In an action for breach of implied warranties of title and possession arising from the sale of certain refrigeration equipment, judgment on the pleadings was entered in favor of the defendant Hussmann Refrigeration, Inc., (Hussmann). Plaintiff Continental Mortgage Company (Continental) contends that the pleadings raised a genuine issue of fact as to whether a contract of sale existed between Continental and Hussmann.

The pleadings consist of Continental’s second amended complaint (complaint) and Hussmann’s amended answer (answer) thereto. The undisputed facts to be derived from the pleadings are as follows: On February 4, 1957, Hussmann entered into a conditional sales contract with one A. Scheussler, doing business as First Avenue Super Mart, pursuant to which Hussmann undertook to sell to Scheussler five pieces of refrigeration equipment for $6,611.57. According to their agreement Scheussler paid $3,337.35 as a down payment and Hussmann retained title to the chattels until the balance of the purchase price was paid. Scheussler defaulted on the conditional sales contract and as a result title to the goods remained with Hussmann.

Continental alleged in its complaint that Hussmann then offered to sell the equipment to it for the sum of $6,611.57 and that the offer was communicated in a letter dated February 15, 1957, from Hussmann, in which it agreed to sell the equipment on payment of the above amount. In its answer Hussmann admits the letter, but contends that it was written as part of a series of negotiations between Continental and Scheussler, culminating in Continental’s refinancing the purchase by paying off Scheussler’s debt to Hussmann. Hussmann alleged that the agreement between Scheussler and Continental provided that Continental would pay Scheussler $1,725.78 for his equity of $3,337.35 (the down payment) and that Continental would then pay the balance of $3,274.22 to Hussmann to discharge Scheussler’s obligation under the conditional sales contract; that no independent sale or transaction was made between Continental and Hussmann and hence the implied warranties may not be invoked. To determine whether this is a genuine issue of fact which should have been tried, we must examine the factual background as set forth in the pleadings.

Hussmann, as the manufacturer, sold equipment to Scheussler who, needing financing, negotiated a loan from Continental. Upon default by Scheussler on its loan agreement, Continental gained possession of the equipment. It subsequently learned that on February 4, 1957, the date of the original purchase by Scheussler from Hussmann, Scheussler had executed a chattel mortgage on the equipment to Western United Dairy; that Scheussler defaulted, and that Western United bought the chattels at a foreclosure sale. Continental refused Western United’s demand for possession of the equipment, and Western United brought an action for conversion against Continental and obtained a judgment for $3,000 which was affirmed by the Appellate Court. Western United Dairy v. Continental Mortg. Co., 28 Ill App2d 132, 170 NE2d 650. Continental was required to pay that sum, and it argues that it incurred this liability and sustained the damages as a result of the breach of implied warranties by the defendant Hussmann.

Hussmann averred that it installed the equipment on Scheussler’s premises on February 7, 1957; that at that time Scheussler informed Hussmann it would be unable to comply with the conditions of the contract, and that it (Scheussler) was negotiating a loan with Continental for the balance of the purchase price and for further financing of its business. The answer further denied that Hussmann warranted good title to the chattels, denied that Hussmann had knowledge of the chattel mortgage, and asserted that the final agreement between Continental and Hussmann provided that Hussmann would accept the payment of the balance of $3,-274.22 from Continental to extinguish Scheussler’s debt.

In its order, the trial court recited that it had considered the pleadings along with the decision in Western United Dairy v. Continental Mortg. Co., supra, and found the issues in favor of Hussmann. Because of the trial court’s reliance on this earlier decision and Hussmann’s contention that this is controlling legal precedent, it is necessary to examine that case as it relates to the issue before us. The court there held that Western United’s chattel mortgage constituted a prior claim to the equipment as opposed to that asserted by Continental under its conditional sales contract. Continental’s position had been that it obtained a prior lien under the doctrine of conventional subrogation when it paid off Scheussler’s debt; that is, that Continental had succeeded to the rights of Hussmann, the original vendor. This argument was rejected by the court, which held that the doctrine of conventional subrogation would not be extended to chattels. Basic to Continental’s argument for subrogation, however, was the existence of a financing agreement between Continental and Scheussler, and the facts as set forth in the opinion reveal that the court assumed that Continental had refinanced Scheussler’s purchase and had not bought the goods directly from Hussmann. This factual setting is of importance in the instant case because it negates the present position taken by Continental; that is, that Continental is Hussmann’s vendee.

To sustain its contention that the prior decision in Western United Dairy v. Continental Mortg., supra, is controlling judicial precedent, Hussmann must show that the principle of estoppel by verdict is applicable. This doctrine was defined in People v. Haran, 27 Ill2d 229, 188 NE2d 707, as follows:

“Where some controlling fact or question material to the determination of both causes has been adjudicated in the former suit by a court of competent jurisdiction and the same fact or question is again at issue between the same parties, its adjudication in the first cause will, if properly presented, be conclusive of the same question in the later suit, irrespective of the question whether the cause of action is the same in both suits or not.” (P 231.)

The court held that where the prior determination is relied upon, it must appear that the particular issue in question was “necessarily tried and determined.” In the instant case the specific question is whether the dealings between Continental and Hussmann constituted a contract of sale to which warranties attach. This was not decided in the Western United case.

The judgment is reversed and the cause is remanded with directions to take such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

SULLIVAN, P. J. and DEMPSEY, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE DEMPSEY

license: Public Domain

text:
    Alice A. Richheimer, Plaintiff-Appellant, v. Robert C. Richheimer, et al., Defendants-Appellees.
    Gen. No. 51,173.
    First District, Third Division.
    March 23, 1967.

      Arthur Morse and Robert A. Sprecher, of Chicago, for appellant.
    Davis, Boyden, Jones & Baer, of Chicago (Benjamin B. Davis, Joseph Winslow Baer and Rodney N. Johnson, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

A decree of separate maintenance between the parties in this case provided that the defendant, Robert C. Richheimer, pay his wife $15,500 per year for alimony and support. On appeal to this court (Richheimer v. Richheimer, 59 Ill App2d 354, 208 NE2d 346 (1965)) the cause was remanded with directions to reduce the alimony to $11,500 a year. The alimony was thereupon reduced by the trial court.

Following the entry of the order the defendant filed a petition requesting that the reduction be made effective as of the date of the separate maintenance decree. The court granted the petition and ordered that the payments made by the defendant in excess of the yearly rate of $11,500 be returned to him. The court ordered that no interest should be paid on the excess and that the repayments should be made in 35 equal monthly installments.

The plaintiff’s position in this appeal is that the trial court was mistaken in reducing her alimony retroactively since the mandate of this court made no such provision. The defendant replies that the trial court’s order was proper because it corrected an erroneous award as of the date the error was made.

Although our mandate did not specify the date the reduction was to be made, the trial court’s order was in conformity with the thinking of this court. Our opinion stated that the allowance of $15,500 was excessive. This allowance was made in the decree of separate maintenance and was excessive at the time the decree was entered. From the date of the original award to the date of our mandate the defendant paid a larger amount of alimony than he rightfully should have paid. The increment to the plaintiff was an advantage which could not justly be retained and the trial court corrected the overpayment by retroactively adjusting the alimony to the date of the erroneous decree.

The adjustment was not contrary to the mandate of this court and the order of the Circuit Court is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Albert Dixon, Defendant-Appellant.
    Gen. No. 51,088.
    First District, Third Division.
    March 23, 1967.

      Edward L. Fleming, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Truman Larrey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant was convicted on two charges of armed robbery and received sentences of two to seven years on each, which sentences were to run concurrently. This case was tried by the court without a jury.

It will be necessary to separate the charges by indictment number and the victim.

Indictment No. 65-804 — Victim—Richard Budnik

The victim, Richard Budnik, testified that on March 2, 1965, at about 6:00 o’clock in the evening, he was near the intersection of 21st Street and Michigan Avenue. He had parked his car in a parking lot and then proceeded toward the Chicago Technical College at 2000 South Michigan Avenue. He was near 2036 South Michigan Avenue when he was attacked by two male Negroes. As he approached a doorway the two male Negroes, who had been walking ahead of him, turned around and accosted him. The defendant had a knife in his hand and one of the men said, “Give me your money, man.” The defendant held the knife to Budnik’s stomach and took the money and his wristwatch. Budnik also testified that his stomach was cut approximately six inches but did not draw blood. It was more like a scratch. The defendant took approximately $10 or $20 in United States currency. The value of the wristwatch was approximately $100. Budnik then proceeded toward the school and the defendant and his accomplice ran south. At the school he called the police, to whom he made a full report.

On March 8, 1965, he had occasion to be at Detective Area 1 Robbery, where a showup was held between 6:00 and 6:30 p. m. When asked if he saw anyone there he knew, he answered that he saw the defendant Dixon. Another showup was held between 10:00 and 11:00 o’clock that night. There were five or six men in the showup. Budnik identified the defendant a second time. He testified that after the second showup he had a conversation with the defendant in the presence of Detective Bonham and “a Chinese fellow.” Budnik testified that he asked the defendant what happened to his watch and the defendant told him that he had sold a gold watch, Lord Elgin, which was Budnik’s watch, someplace on 63rd Street. When Budnik was asked if he was certain that the defendant was the man, he answered in the affirmative. Budnik further testified as to having given a previous approximate description of the two Negroes who robbed him. He said both of them wore black leather jackets, about three-quarter length; that one definitely had a hat. It looked like he had a mustache and a small beard. This man was the shorter of the two and is the defendant here. He wasn’t sure whether it was a mustache or whether the defendant just hadn’t shaved, and had a beard. He also described the defendant as being between 5'8" and 5'11".

Police Officer Hill testified that after the police lineup Budnik and defendant were standing face to face and the defendant told Budnik that he took the watch that belonged to Budnik, and that the defendant said he had pawned this watch in a pawnshop on 63rd Street.

The defendant Dixon denied he committed the armed robbery of Budnik and said that he was at 26th and Prairie on March 2, 1965, where a friend named Joseph Banks lived. He also denied having admitted the taking of the watch from Budnik. He denied also having admitted to Budnik in the presence of police officers that he had taken the watch or had pawned the watch in a pawnshop on 63rd Street.

The defendant contends (1) that the trial judge erred in cross-examining the defendant, and (2) the defendant was not proven guilty beyond all reasonable doubt of the charge of armed robbery.

As to the first point, the Supreme Court said in People v. Trefonas, 9 Ill2d 92, 100, 136 NE2d 817, “The extent to which a judge may indulge in the examination of witnesses largely rests in his discretion but in its exercise he must not forget the function of a judge and assume that of an advocate.” The court in this bench trial asked a few questions of the defendant while he was a witness. The questions asked by the court were where he had been on two dates, concerning which there had been testimony, and how he remembered his whereabouts on those two dates. The only other significant questions put to the defendant by the court were whether he believed that the police officers and the victim were lying when they testified that the defendant had admitted in their presence that the defendant had held up Budnik on March 2, and that the watch he had taken from Budnik he had pawned in a pawnshop on 63rd Street. We are satisfied that the court did not err when it put these few questions to the defendant, and such questioning cannot be construed as cross-examination, nor do we feel that by the questioning by the judge, he had in any way assumed the role of prosecutor. The transcript covers 114 pages of testimony. The questioning by the court, which was objected to, covers approximately two and one-half pages. There is nothing in this record to indicate that the court at any time forgot the function of a judge, but it indicates rather that he merely inquired of the defendant as to his version of the case in order to arrive at his decision. A trial judge has the right to question witnesses in order to elicit the truth or to bring enlightenment on material issues which seem obscure. People v. Palmer, 27 Ill2d 311, 189 NE2d 265; People v. Wesley, 18 Ill2d 138, 163 NE2d 500. The length or nature of such examination depends on the circumstances of the case and even a rather extensive examination may be justified if the court has reason to believe that a witness is not telling the truth in a non jury case. People v. Giacomino, 347 Ill 523, 180 NE 437. The questions put by the court did not indicate bias or prejudice on the part of the judge.

As to the second point raised by the defendant, namely, that the defendant was not proven guilty beyond all reasonable doubt, the defendant urges that on cross-examination of Budnik he was unable to give an accurate description of the defendant to the police immediately after the robbery. It is contended by the defendant that Budnik was not able to state with certainty whether the defendant had a mustache or a beard or both a mustache and beard or just needed a shave. He did not know the man’s exact height or what type of head covering he was wearing. He also points out that Budnik was uncertain in his identification of the defendant, and had the defendant put on a black leather coat, and did not identify him definitely until after the coat had been placed on the defendant. Budnik, however, testified that he identified and picked out the defendant from a lineup of five to six men at the police station on March 8, 1965, at 6:00 to 6:30 p. m., and again at 10:00 to 11:00 p. m. on the same date; that after the second police lineup the defendant, in his presence, admitted selling the victim’s Elgin watch.

Police Officer Hill testified that in his presence the defendant had admitted he had taken the watch belonging to Budnik and pawned it in a pawnshop on 63rd Street. The testimony of one witness as to identification, if positive, and the witness credible, is sufficient to convict, even though the testimony is contradicted by the accused. People v. Wilson, 1 Ill2d 178, 115 NE2d 250; People v. Williams, 12 Ill2d 80, 145 NE2d 29. The record amply shows that the complaining witness had opportunity to observe the defendant during the commission of the crime, and at the trial the complaining witness positively identified the defendant both on direct and cross-examination. The identification of the defendant by the victim was clear, positive and convincing and was corroborated by the oral confession of the defendant that he had taken the watch from Budnik and pawned it. The defendant argued that his identification by Budnik was positive only after a leather jacket had been placed on the defendant. In People v. Pecho, 362 Ill 568, 573, 200 NE 860, the court said:

“The identification of the defendants is not shown to have been impaired by the method of having them lined up with other persons at the detective bureau. The hat was a part of the clothing worn by one of the robbers and to supply an additional identifying element it was placed on the head of one of the defendants at the request of the person robbed. It does not appear why such action would be improper. . . . The circumstances under which the identification was made were before the jury and at most would affect only the credibility of the witnesses. ... In view of the positive identification by three witnesses, the circumstances under which the showup was conducted are not such as to require a reversal of the judgment on that account.”

In the instant case the identification was positive, and that, together with the testimony of Budnik and the police officer, who testified to the oral confession by the defendant of the commission of the crime, and that he had pawned the Elgin watch taken at the site of the crime, is sufficient to prove beyond a reasonable doubt the guilt of the defendant. It is well established in this state that since the accused can expressly admit away his whole case by pleading guilty, he can admit away any part of it. People v. Pilewski, 295 Ill 58, 128 NE 801. In this same connection the defendant argues that his oral confession alone is insufficient to establish the “corpus delicti,” in that the identification testimony is too vague and uncertain to corroborate his oral confession. It is the burden of the People to prove beyond a reasonable doubt not only the commission of the crime charged but also that it was committed by the accused. People v. Ashley, 18 Ill2d 272, 164 NE2d 70. While an uncorroborated confession is insufficient to convict, it is not required that the “corpus delicti” be proven beyond a reasonable doubt exclusively by evidence aliunde the confession or admissions of the accused, nor is it necessary that it be established by evidence other than that which tends to connect the defendant with the crime. People v. O’Neil, 18 Ill2d 461, 165 NE2d 319. Both the existence of the crime and the guilt of the defendant may be proven by the same evidence, the test being whether the whole evidence proves the facts that a crime was committed and that the accused committed it. People v. Gavurnik, 2 Ill2d 190, 117 NE2d 782.

From an examination of this record we are satisfied that the State has met its obligation in proving not only that a crime had been committed but that the defendant here was the perpetrator of that crime. The conviction of the defendant under indictment No. 65-804 is therefore affirmed.

Indictment No. 65-805 — Victim—Charles Dunn

On February 21, 1965, Charles Dunn, at approximately 2:30 a. m., was held up by a Negro with a knife and robbed of an Elgin watch, a wallet and $17 in United States currency, at 22nd Street and Michigan Avenue. Thereafter, on March 8, 1965, Mr. Dunn identified the defendant as the robber and also identified a wallet found on the defendant as the wallet taken from him. The victim testified that the defendant admitted the robbery and the taking of the wallet from him. Mr. Dunn had been drinking the night of the robbery and previously had been in a mental institution for eighteen years. At the time of the robbery the victim was stopped by the defendant, who put a knife to his throat and then took from him a black wallet with a red lining, the wristwatch and the currency. When the victim was pushed toward a building by the defendant he ran across the street and caught a bus to the police station, where he reported the robbery. The defendant, Albert Dixon, was arrested on March 7, 1965, and had in his possession a black wallet with a red lining. He was arrested by Police Officer Gary Hill. On March 8, 1965, between 11:00 and 11:30 p. m., the victim identified the defendant at a police station in a police lineup of ten men. After the lineup, and in the presence of Officer Bonham, Officer Hill and the defendant, the victim, Charles Dunn, identified his wallet as black with a red lining.

Charles Dunn, the victim, testified that he got to the 606 Club at 8:00 o’clock that evening. He had watched the show and drank Old Style Beer. He testified that he had about six beers. He did not know if it was nine beers. He was somewhat confused and asked police how to get to Randolph Street and he ended up at 22nd and Michigan. He testified that he was not drunk, and that it would take four or five quarts to make him drunk. He further testified that he had been in a mental institution for eighteen years but that he had received an absolute discharge on April 12,1965.

The defendant contends that he was not proven guilty beyond all reasonable doubt of the charge of armed robbery of Charles Dunn.

At the trial, Officer Bonham, testifying for the State, stated that after the police lineup on March 8, 1965, Charles Dunn identified the black wallet with the red lining as belonging to him, and that in his presence the defendant looked at the victim and said that was the wallet he had taken from Dunn on the night of the robbery.

Officer Hill, also a State’s witness, testified that he arrested the defendant and that the black wallet with the red lining was found on the defendant. He also testified that he was present at the police lineup when the complaining witness identified the wallet that Officer Bonham was holding, and that the defendant, who was also present, said that it was the wallet that the defendant had taken from the complaining witness during the robbery.

The defendant denied committing the armed robbery of Charles Dunn and testified that on February 21, 1965, he was with his friend, Joseph Banks. The defendant admits that the wallet was found on his person when he was arrested, and that Mr. Dunn identified the wallet as his. The defendant, however, testified that he bought the wallet several months prior to the robbery. Mr. Dunn identified the wallet by the fact that it had rips in the middle and a missing strip.

The defendant contends that the victim was in a state of drunkenness and that his positive identification of the defendant is incredible. The defendant also argues that the victim admitted having been confined in a State mental institution for eighteen years; that he was only 23 years old and for almost all of his life he had been confined to a mental institution, and that at the time of the robbery he had not as yet received his absolute discharge.

It is argued, also, that the alleged confession of the defendant is uncorroborated by any circumstances inspiring belief in its truth and therefore insufficient to convict. The defendant further argues that he was identified only after someone, presumably the police, pointed out the defendant to the complaining witness, and having been induced by police suggestion the identification is inadequate.

People v. Crenshaw, 15 Ill2d 458, 155 NE2d 599, involved a claim that the identification was induced by police suggestion and therefore inadequate. However, the court there held that even though the identification was induced by police suggestion that the guilty party is in custody, such procedure does not completely destroy the evidence of identification, but affects only its weight and credibility.

In People v. Hynes, 26 Ill2d 472, 187 NE2d 252, the victim positively identified the defendant at the trial but was unable to identify him at a police lineup six months after the robbery. The court there held that the evidence was sufficient to establish the defendant’s guilt beyond a reasonable doubt. In the case before us the defendant assumes that the police identified the defendant to the victim, although the record does not so show. The identification of the defendant was supported by the finding of the wallet, with the distinguishing marks on it, on the defendant at the time of his arrest and by the defendant’s oral confession.

In answer to the defendant’s contention, that since the victim had been drinking and stated he was confused, therefore his identification of the defendant is not worthy of belief, the State points out that immediately after being robbed the victim ran across the street, caught a bus and went directly to the police station to report the robbery. It is also pointed out by the State that the victim, having lived in Dixon, Illinois, for eighteen years, was not too familiar with Chicago and in following directions to get to an elevated station on Lake Street he went in the wrong direction. The State also points out that by going directly to the police station after the robbery the action of the victim was not that of a drunken or confused person but that of an outraged citizen who had just had a crime perpetrated upon him. The trial judge, while not relying entirely on the identification testimony of the complaining witness, nevertheless, gave due consideration to all of the evidence in the case in finding the defendant guilty. The complaining witness’s testimony was not shaken upon cross-examination. As to the contention of the defendant that the victim was incompetent to testify, even though at the time of the trial he had received an absolute discharge from the hospital, the State points out that the test of the competency of a witness is one of intelligence and understanding. People v. Mueller, 2 Ill2d 311, 118 NE2d 1. In the absence of statute, one mentally affected or ill is not incompetent if he understands the nature of an oath, and has sufficient mental powers to give a correct account of what he has seen and heard. People v. Enright, 256 Ill 221, 99 NE 936. If a witness has the capacity to observe, recollect and communicate, he is competent, and his mental deficiency is considered only insofar as it affects the credit to be given his testimony. People v. Dixon, 22 Ill2d 513, 177 NE2d 224.

The testimony of the complaining witness in this case, regarding the details of the armed robbery, reveals a complete understanding, as well as his capacity to recollect and communicate.

The defendant finally argues that the uncorroborated oral confession is insufficient to establish the corpus delicti. The rule is that if there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both may be considered in determining whether the corpus delicti is sufficiently proved in a given case. People v. Perfecto, 26 Ill2d 228, 186 NE2d 258. The question is whether the whole evidence proves the facts that a crime was committed and that the accused committed it. In this case the defendant admitted that the wallet was found on his person when he was arrested. He also admitted that the victim identified the wallet as his. The victim identified the defendant at the trial and at the police lineup. The tom or ripped part of the wallet was subsequently testified to by the victim, and there can be no question as to the identification of the wallet. Furthermore, the defendant told the complaining witness he remembered holding him up and that the wallet was his. This testimony is corroborated by the police officers who testified that the defendant said he remembered holding up the complaining witness and that this was his wallet.

From the foregoing we conclude that the evidence, together with the oral confession, sufficiently established the corpus delicti. The judgment of the conviction under Indictment No. 65-805 must therefore be affirmed.

Judgments affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James A. Spencer, Defendant-Appellant.
    Gen. No. 50,960.
    First District, Third Division.
    March 23, 1967.
    Louis S. Elovitz, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: STOUDER, P. J.

text:
    Ruth DeFreezer, Plaintiff-Appellant, v. Charles W. Johnson and Emma T. Johnson, Defendants-Appellees.
    Gen. No. 66-70.
    Third District.
    March 23, 1967.

      Roger V. Pierson, and Fred W. Potter, of Princeton, for appellant.
    Calhoun Phelps, of Princeton, for appellees.
   STOUDER, P. J.

Plaintiff Appellant, Ruth DeFreezer commenced this action in the Circuit Court of Bureau County seeking damages for personal injuries resulting from the negligence of Defendants as the owner of business premises. Judgment was entered on the verdict of the jury for $532.39, the exact amount of the special damages proved. A motion by Plaintiff for a new trial limited to the issue of damages only and for a new trial generally was denied by the court and this appeal follows.

On October 31, 1962, Defendants were conducting a liquidation auction of their hardware business upon the premises in which they had previously conducted a retail hardware business. Plaintiff claims that a box had been placed on the ground to enable purchasers to climb onto a platform and pay the cashier. She stepped on the box and it either tipped or broke causing her to fall.

Plaintiff contends that she is now entitled to a new trial either on damages only or on all issues because it can only be concluded from the amount of the verdict that the jury, having found liability against the Defendants, failed to consider and give effect to the damages sustained by Plaintiff. The instruction on damages given to the jury was the usual IPI Instruction which included the following elements of damage to be considered by the jury. One, the nature, extent and duration of the injury. Two, the disability resulting from the injury. Three, the pain and suffering experienced and reasonably certain to be experienced in the future, as a result of the injuries. Four, the reasonable expense of necessary medical care, treatment and services received and the present cash value of the reasonable expenses of medical care, treatment and services received in the future. Five, the reasonable expense of necessary help in her home, which has been required as a result of her injury. It is conceded by the parties that the verdict of the jury in the amount of $532.39 is for the exact amount of the special damages proved by Plaintiff with respect to medical, hospital and nursing expenses which Plaintiff incurred.

We have recently had occasion to consider this problem in Kelley v. Cross, 79 Ill App2d 342, 223 NE2d 555. Therein we discussed the applicable general principles and referred to many of the precedents relied upon by the parties in this case. In Cross we concluded the verdict of the jury for special damages only was supported by the evidence. However consistent with the authorities relied on in Cross, which we do not believe require restatement herein, we believe that a different result should be reached in the instant case.

Plaintiff testified that she recalls two distinct and painful blows at the time of the fall and that she was in considerable pain as she lay on the ground waiting the arrival of a physician. Drugs for pain were administered by the doctor, her intense pain continuing during her trip to the hospital in an ambulance. X-ray examinations were taken, revealing a fractured vertebra. Plaintiff was hospitalized for eight days. Treatment during her period of hospitalization consisted primarily of diathermy, sedation and bed rest. At the request of her physician she walked occasionally with the aid of a walker although she was unable to do so normally and such efforts were accompanied by pain and discomfort. When she returned home she slept on a felt mattress on the floor for three months and was able to get around only by crawling for the first three weeks. During the first two weeks she was home, Plaintiff’s daughter, a registered nurse, aided Plaintiff. After three weeks she was able to pull herself up into a standing position and walk around with the support of a chair. After eight weeks Plaintiff, a housewife, was able to walk without support although she was unable to bend, stoop or stretch and was able to do only a portion of her housekeeping chores. Her condition has substantially improved although she still has periods of recurring pain requiring sedation and heat or diathermy treatment.

Dr. Berfield, the family and treating physician and the only medical witness, testified that he was called to the scene, administered a hypo for pain and after x rays diagnosed her condition as a vertical fracture of the spinous process of the second lumbar vertebra. He observed tenderness in the right hip area and in the lumbar region of her back with muscle spasms. His treatment consisted of diathermy, heat treatment, massage, sedation and bed rest. He advised the patient against any activities such as lifting or twisting which would put pressure on the back, recommended that she sleep on a hard pallet on the floor and that she wear a stiff girdle. Although the doctor considered that the fracture had healed, he expressed the opinion that the associated damage to muscles and ligaments would cause trouble and recurring periods of pain which could probably be alleviated by heat or diathermy treatment. He also testified that an x-ray examination of Plaintiff’s lower back revealed an abnormal congenital pelvic tilt which might contribute to patient’s discomfort but that prior to the accident Plaintiff had made no complaint concerning back problems.

Viewing the evidence in the record in its aspects most favorable to Defendants we believe there is substantial evidence of serious disability, including pain, substantial and probable future medical expenses and accordingly we believe the jury’s verdict in failing to reflect any such elements of damage is not supported by the evidence.

Although Plaintiff urges that a new trial be granted limited to the issue of damages only, we believe the trial court did not err in denying this part of Plaintiff’s motion. If claim be made that damages are inadequate and that Plaintiff is entitled to a new trial on such issue only, the burden is upon the Plaintiff to show that such verdict was not a compromise of liability against damages. King v. City of Chicago, 53 Ill App2d 484, 202 NE2d 839. The issues of Defendants’ negligence and Plaintiff’s due care are sharply contested issues. Both the evidence and the inferences to be drawn therefrom are conflicting and would have been sufficient to support a verdict for either party. Under such circumstances we conclude that the verdict might have been a compromise of liability against damages and accordingly Plaintiff is entitled only to a new trial generally.

For the foregoing reasons the judgment of the Circuit Court of Bureau County denying a new trial on damages only is affirmed and the judgment of said court denying a new trial generally is reversed and remanded with directions that Plaintiff be granted a new trial on all issues.

Judgment affirmed in part, reversed in part and remanded with directions.

ALLOY and CORYN, JJ., concur.


author: MR. JUSTICE MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Rolan Norsworthy, Defendant-Appellant.
    Gen. No. 66-114M.
    Second District.
    March 29, 1967.

      Haye and Keegan, of Rockford, for appellant.
    William R. Nash, State’s Attorney of Winnebago County, of Rockford, and Daniel D. Doyle, Assistant State’s Attorney, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

Rolan Norsworthy, defendant, was charged with violating the provisions of section 121.02 of the Uniform Act Regulating Traffic on Highways (111 Rev Stats 1965, c 9514, § 218b) commonly referred to as the U.A.R.T. Trial, without a jury, was held in the Magistrate Division of the Circuit Court of Winnebago County. The defendant was found guilty and fined Ten Dollars plus Ten Dollars costs. It is from this judgment that the defendant appeals.

There is no conflict in the evidence. The defendant, an employee truck driver of Charles Ind Company, while driving a six-wheel dump truck upon a State highway outside the corporate limits of the city of Rockford was arrested and charged with the offense in question. The vehicle, of the second division, had dual rear wheels and was used for hauling gravel. Attached to the truck were flap type splash guards; however, at the time of the arrest, the guards were “rolled up,” chained to the underside of the truck, and were not in a vertical position. The lowest portion of each guard was approximately four feet from the ground. At the time of the arrest the weather was clear, the pavement dry and there was no mud or water upon the highway.

The pertinent parts of the statute involved are as follows:

“It is unlawful for any person to operate any motor vehicle of the second division, except a truck tractor, to which this Section is applicable upon the highways of this State outside the corporate limits of a city, village or incorporated town unless such vehicle is equipped with rear fender splash guards of either the contour type or the flap type which comply with the specifications provided in this Section for the type of splash guards used on the vehicle, and which are so attached as to prevent the splashing of mud or water upon the windshield of other motor vehicles. (Emphasis added.)
“When flap type splash guards are used, they shall be wide enough to cover the full tread width of the tire or tires being protected; shall be so installed that they extend from the underside of the vehicle in a vertical plane behind the rear wheels to within 12 inches of the ground, when the vehicle is loaded to maximum legal capacity; shall be so constructed and attached so that when the vehicle is in forward motion such splash guard will not deviate or move backward from the vertical plane by an angle of more than 30 degrees measured from the vertical plane and so that when the forward motion of the vehicle causes such splash guard to deviate from the vertical plane, the bottom of such flap type splash guard will not be more than 15 inches from the ground, when the vehicle is loaded to maximum legal capacity. Such flap type splash guard may be constructed of either a rigid or flexible material.” (Emphasis added.)

The defendant argues that the legislative intent is clear and unambiguous and, therefore, this court need not resort to any aids of construction to properly interpret its provisions. He contends that a correct interpretation of the sections of the statute cited requires only that the vehicle be “equipped” with guards in readiness for inclement weather and that the guards themselves conform to size and construction in compliance with the statutory specifications.

We agree with the defendant that the provisions of the statute in question are clear. It provides the “who,” “why,” and “how,” but it is silent as to the “when” unless interpreted as a whole and not by individual paragraphs. The “who” is all motor vehicles of the second division, except a truck tractor; the “why” is to prevent the splashing of mud or water upon the windshield of other motor vehicles, and the “how” is the italicized portion of paragraph (b) as quoted above.

The crux of the problem resolves itself down to the “when.” The defendant interprets the “when” to mean only during inclement weather while the surface of the specified highway contains mud or water. The plaintiff, on the other hand, interprets the “when” to be at all times regardless of the condition of the specified highway. We agree with the plaintiff.

Paragraph (b) of section 218b of the U.A.R.T., supra, states in detail as to “how” the splash guards are to be installed, and in so doing it answers the “when.” First, they are to be in a vertical plane behind the rear wheels. Second, they are to be within 12 inches of the ground when the vehicle is at a standstill and loaded to a maximum legal capacity or to be within 15 inches of the ground when the vehicle is in forward motion and loaded to a maximum legal capacity. Nowhere does the statute intimate that the specifications are to be complied with only “when” there is mud or water upon the highway. If the legislature had so intended, appropriate language to accomplish that purpose undoubtedly would have been incorporated in the statute. American Steel Foundries v. Gordon, 404 Ill 174, 188, 88 NE2d 465 (1949), Schoellkopf v. DeVry, 366 Ill 39, 49, 7 NE2d 757 (1937). The evidence in the case at bar shows that the guards were not in a vertical plane and were approximately four feet from the ground.

The defendant has cited the cases of The People v. Warren, 11 Ill2d 420, 426, 143 NE2d 28 (1957) and Rudolph Exp. Co. v. Bibb, 15 Ill2d 76, 80, 153 NE2d 820 (1958), for the proposition that the intent of the legislature in enacting the section under consideration was to prevent the splashing of mud or water upon windshields of motor vehicles; therefore, since the evidence discloses that there was no mud or water upon the highway at the time of the arrest, there can be no violation of the statute. Again, we must disagree with defendant’s premise that under the circumstances, there could be no violation of the statute.

We admit the purpose of the statute or the “why” of the statute is to prevent the splashing of mud or water as aforesaid; however, the Supreme Court in the Warren case and the Bibb case passed upon the validity of the statute and an amendment thereto, respectively. Our Supreme Court has not been requested to pass on the question before this court, namely, may splash guards be “rolled up” and chained to the underside of a vehicle of the second division and still comply with all of section 218b of the U.A.R.T., supra ?

We are of the opinion that such question must be answered in the negative. Therefore, the judgment of the trial court must be affirmed.

Judgment affirmed.

DAVIS, P. J. and ABRAHAMSON, J., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Regina Hirsh, Plaintiff-Appellee, v. Max Hirsh, Defendant-Appellant.
    Gen. No. 66-115.
    Second District.
    March 29, 1967.

      Frank M. Daly, of Waukegan, for appellant.
    Bellows, Bellows and Magidson, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal by the defendant-appellant from an order entered July 7, 1966, which among other things, denied the motion of the defendant to withdraw his pleadings heretofore filed in the case, gave judgment in favor of the plaintiff and against the defendant in the sum of $2,600 for unpaid temporary support due from December 1, 1965, to May 25, 1966, and specified that any subsequent temporary support should be retroactive to June 1,1966.

The action was brought by the plaintiff, Regina Hirsh, against the defendant, Max Hirsh, for separate maintenance and for the enforcement of a support agreement entered into between the parties on May 14, 1958. On November 26, 1965, defendant filed a special appearance and motion to quash the summons based on the assertion that he was not a resident of Lake County.

Pursuant to notice, a hearing was held on November 29, 1965, on plaintiff’s motion for temporary support and attorneys’ fees, and for a temporary injunction, at which time the defendant did not appear personally, but did appear by counsel. After the plaintiff had offered the testimony of six witnesses and seventeen exhibits, which were admitted in evidence, the trial court found that the defendant was a resident of Lake County when the suit was filed and the summons served upon him; denied defendant’s special appearance and his motion to quash the summons; found that it had jurisdiction over the person of the defendant and over the subject matter of the action; ordered the defendant to pay the plaintiff temporary support in the sum of $100 per week, commencing December 1, 1965; and ordered that temporary injunction issue against the defendant, without bond, restraining him from further prosecuting a pending divorce action in Nevada wherein he was plaintiff and Regina Hirsh — the plaintiff herein — was defendant. No appeal was taken from this order.

On December 6, 1965, the defendant filed a document which was entitled, “Special Appearance,” wherein he objected to the venue of this court over the subject matter of the suit, and as grounds for such objection, again alleged that since September 11, 1965, he had not been a resident of Lake County, Illinois. He also filed a motion to strike the order of November 29, 1965, which denied his special appearance and motion to quash the service of summons upon him, and directed him to plead to the complaint. At the hearing on December 21, 1965, on the special appearance and motion, the court deleted that part of the prior order requiring the defendant to plead to the complaint and added thereto the words, “said special appearance stricken.”

Thereafter, on January 20, 1966, the defendant filed an answer to the complaint, which denied the material allegations thereof and asserted, as an affirmative defense, that the defendant had been granted an absolute divorce from the plaintiff by a decree of the Second Judicial District Court of the State of Nevada in the County of Washoe, on December 6,1965.

On February 1, 1966, the plaintiff filed a petition for a rule against the defendant to show cause, if any he had, why he should not be held in contempt of the court for wilful failure to comply with the support order .and the provisions of the injunction order aforementioned. In said petition the plaintiff also sought a judgment for the sum of money due and owing to her under the temporary support order. The petition alleged that the defendant had not made any support payments pursuant to the court’s order.

On February 23, 1966, the defendant filed a comprehensive motion wherein he asked that the court declare null and void its orders of November 29, 1965; and that the court dismiss plaintiff’s petition filed February 1, 1966, and the plaintiff’s complaint. And, on April 1, 1966, the defendant filed a motion for leave to withdraw all papers filed by him subsequent to December 21, 1965, for the reason that he desired to file his special appearance challenging the court’s jurisdiction over his person and the subject matter of the controversy.

On July 7, 1966, the court heard the plaintiff’s petition to show cause and for judgment for the support due; and heard the defendant’s three motions: to withdraw his pleadings; for an order declaring the court’s orders of November 29, 1965, to be void; and for the dismissal of plaintiff’s complaint and her petition to show cause.

At the conclusion of the hearing and after the arguments of counsel, the court denied the defendant’s motion to withdraw his pleadings; entered a judgment in favor of the plaintiff and against the defendant in the sum of $2,600 for unpaid temporary support due the plaintiff from December 1, 1965, to and including May 25, 1966; ordered the suspension of further support payments by defendant from June 1, 1966, until the hearing of the case on the merits; set the case for hearing on July 20, 1966; ordered that any subsequent order for temporary support should be retroactive to June 1, 1966; and reserved the court’s ruling on the plaintiff’s petition to show1 cause and on her request for attorneys’ fees. It is from portions of this order that this appeal is taken.

The chronology of this proceeding is helpful in narrowing the issues involved in this appeal. It reveals that the defendant failed to take an appeal from the support order entered November 29, 1965. An order for temporary support in either a divorce or separate maintenance proceeding may be enforced by contempt proceedings and is an appealable order. Micelli v. Micelli, 45 Ill App2d 159, 164, 165, 195 NE2d 233 (1963). Also see: In re Estate of Sherwood, 56 Ill App2d 334, 340, 341, 206 NE2d 304 (1965).

It is established law, in Illinois, that the defendant in a separate maintenance action cannot attack the correctness of an order for temporary support by or through resistance to a supplementary proceeding to enforce such order. Department of Revenue v. Joch, 410 Ill 308, 315, 102 NE2d 155 (1951); Anderson v. Anderson, 4 Ill App2d 330, 348-354 inch, 124 NE2d 66 (1955).

The propriety of such temporary support order may be attacked, within 30 days from rendition, by an appropriate motion. After 30 days from its entry, it may be attacked, either by appeal, or by a proper petition under section 72 of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 72), but such order cannot be collaterally attacked unless it is void. Reynolds v. Burns, 20 Ill2d 179, 192, 193, 170 NE2d 122 (1960); Baker v. Brown, 372 Ill 336, 340, 23 NE2d 710 (1939).

The factual chronology herein reflects that after the court entered the orders of November 29, 1965, as amended by the order of December 21, 1965 — which denied the defendant’s motion to quash the service of summons on him and which struck his special appearance — the defendant appeared before the court generally on diverse matters and filed various general pleadings including an answer. The answer alleged, as an affirmative defense, the Nevada divorce decree entered on December 6, 1965, but it did not assert, as affirmative defenses, improper venue, or the lack of jurisdiction in that the defendant was not amenable to process when served in Lake County. Thereby, the defendant did more than object to the jurisdiction of the court over his person. By so doing, he appeared generally in the case and waived the issue of jurisdiction over his person. Jones v. Jones, 40 Ill App2d 217, 226, 227, 189 NE2d 33 (1963); Dever v. Bowers, 341 Ill App 444, 449-453 incl., 94 NE2d 518 (1950). Moreover, even if the pleadings were withdrawn, the general appearance of the defendant would remain and the orders entered under such posture of the pleadings would be valid. Dart v. Hercules, 34 Ill 395, 403, 404 (1864).

In addition, the jurisdictional issue was before the court at the hearing held pursuant to notice and special setting on November 29,1965. While the plaintiff offered proof which was considered as conclusive by the trial court, and is likewise to this court — that the defendant was a resident of Lake County when this action was filed and when he was served with process — the defendant offered no evidence on the issue of his domicile or otherwise. Under the circumstances of this case, there is nothing in the concept of due process which requires that the defendant be given a second opportunity to litigate the jurisdictional issue.

Thus, the court had jurisdiction over the person of the defendant and the subject matter of the suit, and the temporary support order was valid and in full force and effect. Likewise, the judgment for the plaintiff and against the defendant in the sum of $2,600 — based on the payments provided for in such order — was a valid judgment.

It is also here argued by the defendant that the support order and judgment thereon was erroneous because the plaintiff made no showing of the defendant’s financial ability to pay. Such contention bypasses the essential fact that there was no appeal from the temporary support order and, in addition, is factually untrue.

The defendant also appealed from that part of the order of July 7, 1966, which denied his motion for leave to withdraw his pleadings. However, that part of the order was not an appealable order and is not subject to review. It was not a final judgment, order or decree. Chicago Housing Authority v. Abrams, 409 Ill 226, 229, 230, 99 NE2d 129 (1951); Peach v. Peach, 73 Ill App2d 72, 77-79 inch, 218 NE2d 504 (1966).

Accordingly, the order of the trial court is affirmed and the cause is remanded to the trial court for further proceedings consistent with the views expressed herein.

Order affirmed and cause remanded.

MORAN and ABRAHAMSON, JJ., concur.


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Appellee, v. Major Diggs, Appellant.
    Gen. No. 50,796.
    First District, Fourth Division.
    March 31, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Morton E. Friedman and Nicholas T. Pomaro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

Charge : Attempted burglary.

Defense at Trial : Defendant denied guilt.

Judgment: After a trial before a jury and the return of a verdict of guilty, the court sentenced the defendant to a maximum of 14 years and a minimum of 5 years.

Points Raised on Appeal:

1. Improper exhibits were allowed to be taken by the jury to the jury room.
2. An oral confession by the defendant was improperly considered by the jury.
3. The prosecutor improperly expressed his personal opinion to the jury that the defendant was guilty.
4. Defendant was not proved guilty beyond a reasonable doubt.

Evidence : Testimony of State’s Witnesses.

Aaron Smith testified that he lived at 3153 West Fulton Street, in Chicago; that he had a radio and TV repair shop at 257 North Kedzie Avenue, which the defendant attempted to burglarize on November 28, 1964. He stated that there had been previous attempted burglaries, the last one having been on September 28 or 29, 1964. He stated that he had installed an “intercom” connection between his shop and his home, so that any noises occurring in the shop could be heard over the intercom. He testified that when he left the shop on November 28, 1964, he had properly secured all the doors and locks; that later when he was preparing for bed he heard a loud pounding noise coming from the shop over the intercom; that he told his wife to call the police, then he took a gun and a flashlight and went to the shop. He stated that he went down the “gangway” back of the shop and saw a man standing at the back door, with his arms over in the door between the bars, working on the door, trying to get at the lock behind a piece of metal placed in the door to protect the lock; that he told the man to turn around and put his hands up, and the man turned and put his hands up the side of the wall. Smith then identified the defendant as the man in question. His testimony continued as follows: He turned to see if anyone was with the defendant and at that time he saw the defendant about to strike him with a “shiny object” [the hacksaw which had been introduced in evidence]; he then shot the defendant in the left arm. The defendant fell, then got to his knees and said: “Please don’t call the police because I just got out of jail and I don’t want to go back. I can’t wait until the police come.” Smith told him he couldn’t let him go because he had shot him.

Smith identified the State’s exhibits, a hacksaw, a drill bit and a screwdriver. On cross-examination he testified that he saw the defendant’s hands over inside the bars, working at the 12" x 12" plate that shields the lock to prevent burglary; that he saw the screwdriver in the defendant’s hands, but did not see what he did with the screwdriver when he struck at Smith with the hacksaw. Smith stated that two or three squad cars arrived and he gave them a statement; he said he did not tell the police that he saw the defendant chipping mortar, nor did he make any statement either at the preliminary hearing or to the State’s Attorney that he saw the defendant chipping brick. He stated that after he shot the defendant he did not see what happened to the hacksaw or the screwdriver.

Ronald Nadile, a police officer, testified that early in the morning of November 28, 1964, in response to a call he went to the rear of 257 North Kedzie, where he was met by a police sergeant who had the defendant in custody. Nadile examined the premises and identified People’s Exhibit 1 as a photograph of the rear door of the premises. He testified that he observed fresh marks near the hasp where bricks had been knocked out; that he found the hacksaw and the drill bit in a puddle of water, and the screwdriver a little distance from the other tools. He took the tools to the police station where they were inventoried. He stated that the evidence technician made a sketch of the area where the bricks had been chipped, which picture was introduced in evidence and which will be discussed later. Nadile stated that he noticed there was fresh concrete on the end of the drill. He then stated that the defendant was taken to the hospital by the police.

Calum MacRitchie, a police officer, testified that on November 28, 1964, at about 3:15 a. m., he went to the location in question in response to a radio call, and found that all persons involved had been taken to the police station; that he made a cursory examination of the premises and found that mortar had been taken from some bricks around the center of the door hinge; that he returned later and made a more thorough examination. In his report MacRitchie had stated that bricks had been removed from the ledges of the protective gate and the rear door of the store; that the bricks which were removed were split. He further testified that the next day he saw the defendant at the Bridewell Hospital; he believed he was sitting up at the time; that he questioned the defendant as to where he had been on the night in question; that the defendant said he had been drinking in a tavern next to a currency exchange at Flournoy and Kedzie; that he left the tavern at about 2:00 a. m., and walked north on Kedzie; that he found tools in a garbage can (he couldn’t say where), and when he came to the victim’s store he decided to burglarize it. The tools were those which had been introduced in evidence.

In rebuttal, police sergeant Chester Zaprzalka testified for the State that on November 28 he went to Smith’s store and saw the defendant with Smith; that he searched the defendant and did not find a hacksaw on his person although he did take the screwdriver and the drill off the person of the defendant. The officer stated that he was alone at the time and that another officer arrived on the scene a few minutes later.

Testimony of Defendant. The defendant testified as follows: On November 28, 1964, he was living at 3130 West Washington Street with a brother. He had been a sheet metal worker for about 12 years, but was not so employed on November 28; at that time he was doing maintenance work for his landlord in the building where he lived. He had left his home at about 9:30 on the evening of November 27, and had gone to 554 Kedzie to see a friend of another brother of the defendant, who was to drive him to the south side where he was to do some sheet metal work. He waited with the man’s wife until 2:00 a. m., at which time the man (a musician who had been practicing with a group) told him he was too high to drive his car, and the defendant would have to take public transportation. He left the house at 554 Kedzie about 2:00 a. m., intending to take the “L” to the south side. He had been drinking gin since about 9:00 p. m., and when he left he had a bottle one-third full of gin. He also had with him the tools which he used in his sheet metal work — hacksaw, drill and screwdriver. It had been raining hard, and he went into an alley in the 200 block on Kedzie, finished the gin, threw the bottle away, then went further down the alley in response to a call of nature. He was standing still when he heard a voice shout “Hey”; he spun around and felt a bullet hit him. He saw Smith and asked why he shot him; Smith said he believed he was trying to burglarize his store, and the defendant denied that he was doing that. A police sergeant and another police officer arrived, and the sergeant took the tools from the defendant’s person. In his testimony the defendant stated that the sergeant had not testified that day in court. (He referred to Sgt. Zaprzalka who was called by the State in rebuttal.) He said the sergeant asked Smith why he shot him and Smith said the defendant had drawn back to attack him, which the defendant denied. The defendant further testified that the sergeant put the tools in the squad car, then one of the officers took the defendant to the hospital.

He continued to testify that the next morning at about 9:00 or 10:00 o’clock, the officer who testified (MacRitchie) went to the hospital and talked to the defendant, telling him he was a detective and wanted to hear his story. The defendant’s arm was in a sling; he was in bed, and had been given “sleeping pills or some type of pain killer that made me go to sleep.” The officer asked him if he wanted to make a statement and the defendant told him he was sleepy and would talk to him later; that he did not want to make a statement, and the only statement he could make was that he was on his way home and was shot mistakenly. He told the officer he thought Smith shot him accidentally.

The defendant also testified that he had been convicted of a burglary in 1959 and sentenced to the State Reformatory of Indiana from two to five years; that he was released August 1, 1961. He denied that he had attempted to break into the premises of Smith’s shop, and stated that the tools in his possession were those he had been using for sheet metal work; that he carried the tools when he was doing any of that kind of work. On cross-examination he stated that he had told his brother who lived on the south side that if he couldn’t get to his home before 11:00 p. m., at which time the brother went to bed, he would come at 4:00 a. m., when the brother would be getting up to go to work; that he intended to use his brother’s car the next day to look for work.

Opinion :

1. Defendant contends that improper exhibits were allowed to go back to the jury room. At the trial, over objection, Smith was permitted to put a mark on a photograph which was introduced as Plaintiff’s Exhibit 1. The witness testified that the X which he had marked was to indicate where the brick had been chipped and where the mounting of the lock on the door was hanging loose. Officer Nadile also examined the photograph and pointed out to the jury “fresh marks . . . right by this hasp, where bricks were just knocked out, pieces of bricks were knocked out right by this hasp here, (Indicating) ” and the officer indicated on the photograph the place where Smith had made the mark. The defendant argues that the jurors should not have been permitted to take with them to the jury room evidential material depending for their value on the credibility of the maker, and in support of that objection, cites People v. Spranger, 314 111 602, 145 NE 706. This case is not applicable because the Supreme Court found that the trial court erred in admitting the entire statement into evidence.

In People v. Allen, 17 Ill2d 55, 160 NE2d 818, the defendant argued that it was error for the trial court to allow the jury to take to the jury room several physical objects which had been admitted as exhibits into evidence. The court said:

“It is well established that the matter of whether exhibits should be taken to the jury room is within the sound-discretion of the trial judge and his ruling will not be disturbed unless there was an abuse of such discretion to the prejudice of defendant. (People v. Ciucci, 81112d 619.) ”

The trial court committed no error in permitting the exhibits to be taken to the jury room.

2. The defendant contends that an oral confession was improperly considered by the jury, and argues that officer MacRitchie should not have been permitted to testify to what the defendant told him at the hospital with respect to his being guilty of the burglary. The officer testified that at the time he questioned him the defendant was sitting up in bed; the defendant testified that he had been given pain killers and was sleepy, and does not remember making any inculpatory statements. No objection was made to the testimony of the officer, and no motion to suppress was made by defendant’s counsel, nor did he call for a hearing on the admissibility of the confession. The defendant argues that nevertheless it was the court’s responsibility to see that he was surrounded by all the safeguards of procedural due process. He predicates his argument on People v. Odom, 71 Ill App2d 480, 218 NE2d 116, where the court reversed a conviction. In that case the court found that the defendant’s attorney was incompetent because he did not (1) file a motion to suppress certain evidence; (2) bring out any disparities in the evidence; or (3) file a motion to suppress a confession which was obtained under circumstances which raised a question of its voluntariness. In the case before us, since the defendant did not object to the confession or move to suppress it in the trial court, he cannot do so here. People v. Lyons, 36 Ill2d 336, 223 NE2d 99; People v. Jones, 31 Ill2d 42, 198 NE 2d 821; People v. Carter, 24 Ill2d 413, 182 NE2d 197.

3. In his closing argument the prosecutor said: “The evidence conclusively proves that the defendant, Major Diggs, is guilty of both counts in the indictment. In my opinion, he is guilty not only beyond a reasonable doubt but beyond any and all reasonable doubt.” This statement was objected to by defense counsel. The court said: “He is giving his opinion from the evidence. Is that true, Mr. Knott?” The prosecutor said it was, and the court told him to proceed. The defendant contends that the prosecutor improperly expressed his personal opinion to the jury of defendant’s guilt, and cites several opinions in support of the contention: People v. Cepek, 357 Ill 560, 192 NE 573; People v. King, 276 Ill 138, 114 NE 601; and People v. Fuerback, 66 111 App2d 452, 214 NE2d 330. All of those cases lay down the commonly recognized rule of law that a prosecutor in his argument to the jury may not give his own personal opinion, unless based on the evidence, as to the guilt or innocence of the defendant. In People v. Williams, 26 Ill2d 190, 186 NE2d 353, the court said:

“It is, however, proper for a prosecutor to argue or express his opinion that the accused is guilty, where he states, or it is apparent, as was true in this case, that such opinion is based solely on the evidence. People v. Lawson, 331 Ill 380, 394; People v. Black, 317 Ill 603; 15 ILP, Criminal Law, sec 586.”

In People v. Lawson, 331 Ill 380, 163 NE 149, the court stated that while the state’s attorney is not permitted to say to a jury that he believes a defendant is guilty beyond a reasonable doubt, “it is within his discretion to state to the jury, after summing up the facts, that he believes from the evidence that the defendant is guilty beyond a reasonable doubt if there is any reasonable basis for such belief.” The statement of the State’s Attorney in the case before us was definitely based on the evidence and was not his independent conclusion outside of and beyond the evidence introduced in the trial of the case.

4. The defendant contends that he was not proved guilty beyond a reasonable doubt. The testimony was that he was at the back of the shop; that he had with him tools which were suitable for chipping brick and breaking into the store. Smith testified that he saw the defendant with his hands inside the door; that while he couldn’t see his hands because he was over in the door, he had his hands inside the bar and apparently was working on a metal plate which shields the door lock, and that he had a screwdriver in his hands at the time. There is also testimony in the record that the brick was chipped and that the lock was disturbed. The defendant’s justification of his presence at the door was not impressive. In People v. Spagnolia, 21 Ill2d 455, 173 NE2d 431, the court said:

“We have often held that when ‘a defendant elects to justify or explain his presence at or near the scene of a crime, while denying participation, he must tell a reasonable story or be judged by its improbabilities.’ (People v. Lobb, 17 Ill2d 287, 294; see also People v. Malmenato, 14 Ill2d 52, 60; People v. Meyers, 412 Ill 136, 145.) ”

In the case before us there is no question that the defendant was present at the scene of the alleged crime; the dispute is as to what he was doing there. State’s witnesses say he was attempting to break into the shop; the defendant contends he was there on personal matters. The jury saw the witnesses and heard them testify, and in our opinion they were justified in finding that the defendant’s guilt was proved beyond a reasonable doubt. The trial court had the same opportunity to observe the witnesses and hear their testimony, and refused to grant defendant a new trial.

Decision :

The judgment of the Circuit Court is affirmed.

Affirmed.

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

       111 Rev Stats 1963, c 38, § 19-1. Burglary.
      (a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in the Illinois Motor Vehicle Law, approved July 11, 1957, as amended, railroad car, or any part thereof, with intent to commit therein a felony or theft.
      (b) Penalty. A person convicted of burglary shall be imprisoned in the penitentiary for any indeterminate term with a minimum of not less than one year.
      Ill Rev Stats 1963, c 38, § 8-4. Attempt.
      (a) Elements of the Offense. A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.
      (c) Penalty. A person convicted of an attempt may be fined or imprisoned or both not to exceed the maximum provided for the offense attempted.


author: MR. JUSTICE DRUCKER

text:
    The People of the State of Illinois, Defendant in Error, v. Major Peery, Otherwise Called Major Perry, Plaintiff in Error.
    Gen. No. 51,442.
    First District, Fourth Division.
    March 31, 1967.

      Allen S. Pesmen, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney in Charge of Appeals, Criminal Division, and Theodore M. Swain, Assistant State’s Attorney, of counsel) for defendant in error.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

After a bench trial the defendant, Major Peery (otherwise called Major Perry) was convicted of attempted murder and of aggravated battery. For each crime he was sentenced to the penitentiary for a term of not less than five nor more than ten years, the sentences to run concurrently. Defendant appealed directly to the Supreme Court and the cause was transferred to this court.

Contentions on Appeal

1. The court erroneously placed the burden of proof upon defendant to prove his affirmative defense of self-defense, and the State’s burden of proof was not met;

2. New evidence has been discovered which is sufficient to justify a new trial; and

3. Defense counsel was incompetent.

Evidence

According to the undisputed evidence defendant shot and wounded Odell Levie six times: three times in the back and once each in the face, left arm and stomach. The shooting took place at the rear of a tavern. Levie testified that he was asked (by a man other than defendant) if he wished to purchase whiskey for fifty cents, he (Levie) reached in his pocket and was shot by defendant for no reason. Levie further testified that:

I asked him [defendant] what he shot me for. He fired again and hit me in the left arm and I turned to run and he shoots me through the stomach. I fell. He walked up maybe five or six feet from me and shot me three times in the small part of my back.

A witness, Lucille Bell, testified that she first heard shots while her back was toward the action; that she turned around and saw defendant chasing Levie and still shooting at him. Another witness, Willie Lou Higgins, testified that she heard a shot, turned around to view the action, and saw Levie running; that Levie fell and defendant continued to shoot at him. The testimony of the witnesses was in conflict as to the events preceding the shooting and as to whether there was gambling at the rear of the tavern where the shooting took place.

Defendant testified that while en route to his brother’s house with a fully loaded gun (which he desired to keep there for safekeeping) he met Alfred Spears, with whom he drank whiskey at the tavern where the shooting took place; that he went to the rear of the tavern and participated in a dice game which was being run by Odell Levie ; that a disagreement ensued between defendant and Levie over a bet whereupon the latter snatched a five-dollar bill from defendant’s hand; and that when defendant reached for the bill, Levie pushed him back (defendant allegedly was wearing a cast on his foot) and said: “Me or you, big boy.” At the same time Levie fumbled in his pocket and defendant saw what looked like a knife or gun handle, and defendant pulled out his gun and shot at Levie until it was empty. Defendant stated that at no time did he chase Levie.

Opinion

Defendant first contends that the trial judge erroneously placed the burden of proof upon him to prove self-defense, and relies solely upon the trial judge’s statement in a hearing on aggravation and mitigation that: “[T]aking his [defendant’s] word as true, I think his own evidence shows he is guilty and he is not justified in making the shooting.” We cannot find from this gratuitous remark an intimation that the trial judge was of the belief that defendant had the burden of proving self-defense. The remark was made after the finding of guilty based upon all of the evidence. According to the report of proceedings it is clear that the trial judge, after hearing uncontradicted testimony that the victim (Levie) was shot three times in the back, did not believe defendant’s testimony that he stood facing the victim and fired six successive shots. The judge did believe the pertinent testimony of the prosecution’s witnesses who stated that defendant shot Levie as the latter was attempting to flee. Therefore, even assuming that defendant was justified in his belief that Levie was drawing a knife or a gun, defendant was not justified in firing those shots at the victim while the latter was either running away or lying wounded on the ground. The right of self-defense does not permit killing in retaliation or revenge, nor does it allow the pursuit and killing of an aggressor after the aggressor abandons the quarrel. People v. Thornton, 26 Ill2d 218, 186 NE2d 239. In the instant case the evidence was sufficient to justify the trial judge’s finding that the attempted killing of Odell Levie was not done in self-defense.

Defendant also contends that a post-trial affidavit of Alfred Spears (an occurrence witness who did not testify at the trial) is sufficient new evidence to justify a new trial. He also claims on the basis of this same affidavit that his counsel was incompetent because he failed to request a bench warrant for this witness. The affidavit, dated two years subsequent to the trial, is not part of the record and was attached to the abstract without leave of court. These contentions, therefore, cannot be considered on review. People v. Twitty, 405 Ill 60, 89 NE2d 827.

Holding on Appeal

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

Affirmed in part; reversed in part.

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

       Defendant relies upon the following statutes: (a) Illinois Revised Statutes, 1961, chapter 38, section 7-1, which provides:
      A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.
      (b) Illinois Revised Statutes, 1961, chapter 38, section 7-14, which provides:
      A defense of justifiable use of force, or of exoneration, based on the provisions of this Article is an affirmative defense.
      (c) Illinois Revised Statutes, 1961, chapter 38, section 3-2, which provides:
      (a) “Affirmative defense” means that unless the State’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon.
      (b) If the issue involved in an affirmative defense is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.


text:
    In re Estate of Leo A. Gubala, Deceased. Thaddeus Rojek, Petitioner-Appellant, v. Frank Wujastyk and Stanley Wujastyk, Respondents-Appellees, and Margaret A. Wujastyk, Administrator-Appellee.
    Gen. No. M-51,411.
    First District, Fourth Division.
    March, 31, 1967.

      Whitcup and Fíala, of Chicago, for appellant.
    Harold Orlinsky, of Chicago, for respondent-appellees.
    Mort D. and Frank Goldberg, and Alvin L. Kaplan, of Chicago, for administrator-appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from the dismissal of a citation proceeding brought by the appellant, Thaddeus Rojek, in which he requested the court to determine that the funds of two savings and loan association accounts should be included in the estate of the decedent, Leo A. Gubala. An appeal is also taken from the order denying petitioner’s objections to the final account of the administrator and further denying leave to certain heirs at law of the decedent to withdraw their consents to the final account of the administrator.

The decedent died intestate on September 9, 1963, and was survived by nine nieces and nephews, who comprised his heirs at law. The citation proceeding, commenced by the appellant (one of the aforesaid heirs), was brought to determine whether the funds in two savings and loan accounts which had not been included in the inventory of the decedent’s estate should have been included therein.

A. Fairfield Account

One of the accounts was opened by the decedent in his own name at the Fairfield Savings and Loan Association on February 16, 1953. On February 27, 1960, which was shortly after the death of his wife, decedent authorized the association to change the name of the account so as to make it payable on his death to Charles Gubala, his son. However, Charles Gubala died on April 18, 1961, and on June 23 decedent authorized the association to substitute the name of Frank Wujastyk (one of decedent’s nephews) for that of his deceased son. New signature cards were duly executed for each of the aforesaid changes in the account.

Appellant contends that the attempted transfer of funds in this account to Frank Wujastyk is testamentary in nature and therefore is invalid for failure to comply with the Statute of Wills; and that therefore the funds in that account should be included in the decedent’s estate and be distributed as intestate property.

The account in question, called a payment-on-death account (hereinafter referred to as a “P.O.D. account”), is authorized by the legislature in section 770(c) of the Illinois Savings and Loan Act (111 Rev Stats, 1959, c 32, § 770 (c)). That statute provides in pertinent part as follows:

(c) If a person opening or holding a withdraw-able capital account shall execute a written agreement with the association providing that on the death of the person named as holder, the account shall be paid to or held by another person or persons, the account, and any balance thereof which exists from time to time, shall be held as a payment on death account and unless otherwise agreed between the persons opening the account and the association:
(1) Upon the death of the holder of the account, the person or persons designated by him and who have survived him shall be the owners of the account (as joint owners with right of survivorship if more than one) and any payment made by the association to any of such persons shall be a complete discharge of the association’s obligation as to the amount paid (emphasis supplied) ,

The disposition of funds in a “P.O.D. account” is clearly testamentary, not inter vivos, in nature. In order for there to be an inter vivos gift the donor must have donative intent, he must part with exclusive dominion and control over the subject matter and there must be a delivery. Frey v. Wubbena, 26 Ill2d 62, 185 NE2d 850. The beneficiary of a “P.O.D. account” cannot withdraw any of the money prior to the owner’s death and has no legal redress to protect himself against a wasteful dissipation, of the funds by the owner. In effect, his interest comes into being only at the owner’s death. The owner of a “P.O.D. account” therefore does not, during his lifetime, part with exclusive dominion and control over the funds therein.

However, while the disposition of funds in a “P.O.D. account” is testamentary in nature and without question is not in compliance with the Statute of Wills, the aforesaid disposition nevertheless is valid since the Illinois Savings and Loan Act was intended to supplant the Statute of Wills in this respect. Section 770(c) of the Act, under which a “P.O.D. account” is authorized, is irreconcilably inconsistent with and repugnant to the Statute of Wills and refers to a specific type of testamentary disposition. Moreover, it was enacted subsequent to the Statute of Wills, which refers to testamentary dispositions in general. A familiar rule of statutory construction is that where there are two statutory provisions, one of which is general and designed to apply to cases generally and the other of which is particular and relates only to one subject, the particular provisions must prevail and must be treated as an exception to the general provision (Board of Education v. City of West Chicago, 55 Ill App2d 401, 404, 205 NE2d 63; People v. Canada, 81 Ill App2d 220, 225 NE2d 639. Moreover, while repeal by implication is not favored, where two statutes are irreconcilably repugnant the latter abrogates the former to the extent that they are inconsistent and irreconcilable, since it cannot be supposed that the General Assembly intends to enact and enforce laws which are contradictions. People v. Maslowsky, 34 Ill2d 456, 468, 216 NE2d 669. Applying these common rules of statutory construction, we find that it was the intention of the legislature to validate the specific testamentary disposition of funds in a “P.O.D. account” even though the form of such disposition is not in accordance with the requirements for testamentary dispositions in general as set forth in the Statute of Wills.

Appellant is also erroneous in his contention that section 770(c) of the Act is contrary to the alleged purpose of the Joint Rights and Obligations Act (111 Rev Stats 1961, c 76), i. e., to eliminate all rights of survivorship in Illinois. We would point out, first, that certain survivorship rights are specifically authorized in Section 2(d) of the Joint Rights Act and therefore it was not the intention of the legislature to abolish all rights of survivorship; and, second, the preamble in Section 2 of the Joint Rights Act allows the creation by a writing of survivorship rights, and the beneficiary’s survivorship interest in a “P.O.D. account” is created by the written account agreement.

Appellant contends in addition that this account was not established in strict accordance with section 770(c) of the Savings and Loan Act and is therefore not a valid “P.O.D. account.” In support thereof he asserts that the account agreement provides that in case of multiple beneficiaries, upon the death of the holder of the account they shall own the account as “tenants in common”; and that the statute provides that the multiple beneficiaries shall take “as joint owners with right of survivorship.” We find appellant’s contention to be without merit. That portion of the statute relied upon relates only to the legal effect of a validly created “P.O.D. account” and in no manner affects the validity of the account itself.

B. Capitol Account

The other account was opened by the decedent on May 8, 1961, (shortly after the death of his son) at the Capitol Federal Savings and Loan Association. The account agreement was in the name of Leo Gubala and Stanley J. Wujastyk (another nephew) “as joint tenants with right of survivorship and not as tenants in common . . . ”, and was in strict compliance with section 2(c) of the Joint Rights and Obligations Act (111 Rev Stats 1961, c 76, § 2(c)), which was the applicable law at that time. The fact that the passbook was in the names of “GUBALA, Leo & WUJASTYK, Stanley,” there being no reference to the form of ownership, is irrelevant in ascertaining whether there has been compliance with section 2(c) since it is the account agreement, duly executed by Gubala, Wujastyk and Capitol, which creates the account and determines the rights of the parties.

An instrument creating a joint account under the statutes presumably speaks the whole truth; and, in order to go behind the terms of the agreement, the one claiming adversely thereto has the burden of establishing by clear and convincing evidence that a gift was not intended. This burden does not shift to the party claiming under the agreement. Murgic v. Granite City Trust & Savings Bank, 31 Ill2d 587, 202 NE2d 470. The fact that Leo Gubala made all of the withdrawals and deposits and retained control of the passbook is not controlling. Frey v. Wubbena, supra; In re Estate of Liberio, 43 Ill App2d 261, 193 NE2d 482. The evidence adduced by the petitioner in the instant case is insufficient to overcome the presumption of donative intent on the part of Leo Gubala in favor of Stanley Wujastyk.

Holding om Appeal

We find that Frank Wujastyk, being the beneficiary of the “P.O.D. account” at Fairfield Federal Savings and Loan Association, is entitled to the funds remaining in that account at the death of Leo Gubala; and that Stanley Wujastyk, being the surviving joint tenant in the account at Capitol Federal Savings and Loan Association, is entitled to the funds remaining in that account at the death of Leo Gubala. In light of our holding as aforesaid, we also find that the order of court denying petitioner-appellant’s objections to the final account (which objections were based upon the allegation that the funds were improperly excluded from the estate) was proper. The court also properly denied leave to the heirs to withdraw their consents to the final account of the administrator (which was informally raised at the hearing) as not being germane to the citation petition. Therefore the orders of the trial court, from which this appeal is taken, are affirmed.

Affirmed.

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

       The objections to the final account were on the grounds that the funds in the two accounts were not probated in the estate, and that the administrator’s and attorney’s fees were excessive for failure to collect all of these assets. Leave of the heirs to withdraw their consents was requested on the ground that at the time the consents were given one heir was in a mental institution and the other was retarded. Appellant did not raise these issues at oral argument.

       It is urged that this section does no more than protect the savings and loan association. A similar contention was rejected in the case of Frey v. Wubbena, 26 Ill2d 62, 67, 185 NE2d 850. Moreover, to accept that contention would be to render meaningless the underscored words in section 770(c)(1). The section not only protects the association but also defines the rights of the survivor (s) of the account owner.

       Actually, the Joint Rights and Obligations Act has no bearing on a “P.O.D. account.” Since the interest of the beneficiary in a “P.O.D. account” comes into being only at the death of the owner no “joint right” is created.

       The name of the account shown on the passbook was “GUBALA, Leo & WUJASTYK, Stanley.”


author: JUSTICE MORAN.

text:
    Nationwide Mutual Insurance Company, a Corporation, Plaintiff-Appellant, v. Paul C. Christakis, Defendant-Appellee.
    Gen. No. 66-99.
    Second District.
    March 29, 1967.

      Seymour A. Greenblatt, of Waukegan, for appellant; Peter J. Collins, of Waukegan, for appellee.
   Opinion by

Not to be published in full.


text:
    Abraham Baiocchi, d/b/a Marmero Art Creations, Plaintiff-Counterdefendant-Appellant, v. Sam Magidson, a/k/a Samuel Magidson, Defendant-Counterplaintiff-Appellee.
    Gen. No. M-51,469.
    First District, Fourth Division.
    March 31, 1967.

      Lionel I. Brazen, of Chicago, for appellant.
    Teller, Levit & Silvertrust, of Chicago (Leo Feldman, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from a judgment for defendant on plaintiff’s amended complaint in an action for breach of contract.

Plaintiff, Abraham Baiocchi, filed his amended complaint for merchandise sold and delivered to the defendant, Sam Magidson, in which he prayed for judgment in the amount of $572.76. That amount represented the total sales prices for the goods plus interest for vexatious delay and costs of the suit. Defendant filed a third amended answer in which he stated that the invoice price of the goods was $546.55 and alleged a recoupment in his behalf, and subsequently he filed a third amended counterclaim in which the recoupment pleaded in the answer was realleged. Plaintiff then submitted a schedule of requests for admissions of fact, in accordance with the then Supreme Court Rule 18, which embodied the sale and receipt of the merchandise in question. Defendant did not deny, object or respond to the aforesaid requests and the unanswered requests were submitted into evidence as admissions of fact at the trial. Plaintiff then rested his case after which the defendant moved for a finding in his favor, which was denied. The court then heard evidence on the defendant’s counterclaim and, at the conclusion of all of the evidence, entered the following order on March 18, 1966, which was approved by the respective attorneys for each party to the action:

Finding issues for the defendant Sam Magidson on the amended complaint; and Judgment for defendant, Sam Magidson, thereon;
Finding issues for the counterdefendant Abraham Baiocchi on the 3rd amended counterclaim and judgment for the counterdefendant thereon.
Amended Complaint and Third Amended Counterclaim dismissed and judgment thereon

Plaintiff now appeals from that judgment. Defendant filed no post-trial motion and no cross-appeal is taken by him.

There is no question but that plaintiff established a prima facie case on his third amended complaint which was not rebutted by the defendant. This fact is even admitted by the defendant in his brief. Therefore the trial court should have entered judgment in plaintiff’s favor on the amended complaint.

Defendant contends, however, that he proved the allegations set forth in his third amended answer and third amended counterclaim; that he is entitled to damages thereunder in the same amount as is due plaintiff ; and therefore nothing is due the plaintiff. Defendant acknowledges that he did not perfect an appeal from the dismissal of his counterclaim and therefore that judgment is not before this court. Defendant argues, however, that the same recoupment, which he pleaded in his third amended answer, is properly before this court.

Section 38(1) of the Illinois Civil Practice Act (111 Rev Stats 1965, c 110, § 38(1)) abolishes the defense of recoupment and requires a recoupment to be considered a counterclaim. That section specifically provides that:

[A]ny demand by one or more defendants against one or more plaintiffs . . . whether in the nature of setoff, recoupment, cross-bill in equity, cross demand or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross demand in any action, and when so pleaded shall be called a counterclaim.

In Olin Mathieson Chemical Corp. v. J. J. Wuellner & Sons, Inc., 72 Ill App2d 488, 492, 218 NE2d 823 the court stated:

In Stow v. Yarwood, 14 Ill 424, the Supreme Court held that mutual demands arising out of the same subject matter, capable of being balanced against each other, may be adjusted in one action, and a defendant may, by recoupment, use his claim against the plaintiff, in mitigation of damages. “Recoupment is in the nature of a cross-action, where defendant alleges that he has been injured by a breach by plaintiff of another part of the contract on which the action is founded, and unliquidated damages may be so recouped.” Luther v. Mathis, 211 111 App 596, 601. The purpose of section 38 is to abolish the distinctions between the various types of cross-demands, and substitute therefor the counterclaim. Defendants’ counterclaims are clearly in the nature of recoupment, and, as such, are pleaded in the manner contemplated by the Civil Practice Act.

We find that the recoupment pleaded by defendant in his third amended answer is a counterclaim and an adverse finding thereon is before this court only if an appeal is properly perfected. Since no appeal was taken the merits of the recoupment cannot be considered.

Therefore, the judgment for defendant on plaintiff’s amended complaint is reversed and the cause remanded with directions that the court enter a judgment in plaintiff’s favor thereon.

Reversed and remanded with directions.

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

       While defendant refers to his claim as a setoff, it is actually a recoupment since it arose out of the same transaction as did plaintiff’s claim. Luther v. Mathis, 211 111 App 596.

       Supreme Court Rule 18 (111 Rev Stats 1965, c 110, § 101.18) provides in relevant part that:
      Each of the matters of which an admission is requested is admitted unless, within 10 days after service thereof, the party to whom the request is directed serves upon the party requesting the admission either (a) a sworn statement denying specifically the matters of which admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (b) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part, together with a notice of hearing the objections at the earliest practicable time.

       Defendant adduced no evidence to rebut the plaintiff’s evidence.