author: Mr. JUSTICE LYONS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Hall, Defendant-Appellant.
    (No. 54375;
    First District
    September 21, 1971.

      Gerald W. Getty, Public Defender of Cook County, of Chicago, (Lee T. Hettinger, James N. Gramenos, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and George Elsener, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LYONS

delivered the opinion of the court:

The defendant, Robert Hall, was charged with the offenses of aggravated kidnapping and rape in violation of Ill. Rev. Stat. 1967, ch. 38, pars. 10—2, 11—1. Following a trial by jury, the defendant was found guilty of rape and was sentenced to a term of not less than ten nor more than fifteen years in the Illinois State Penitentiary.

On appeal, the defendant raises the following issues:

1) Did the trial court err by admitting into evidence certain statements made by defendants?
2) Did the trial court err by failing to conduct a preliminary hearing to determine the admissibility of an oral statement made by defendant and later introduced by the prosecution at trial?
3) Did the trial court err by failing to conduct a preliminary hearing concerning the competency of a twelve-year-old child to testify?
4) Did the trial court err by denying defendant’s motion to suppress certain physical evidence?
5) Was the defendant denied a fair trial when in closing argument the prosecutor told the jury that raider the law a fifteen-year-old could not consent to intercourse?
Did the trial corat err by refusing to give defendant’s instruction concerning consent in rape cases? 6)
Was the defendant denied a fair trial where the prosecutor stated during closing argument that a police officer had testified to a conversation with defendant and the officer’s testimony concerning that conversation was uncontradicted? 7)
Was the defendant denied a fair trial when the prosecutor, after direct examination of a police officer and a crime lab technician, showed them their respective case reports in the presence of the jury and asked if they recognized and authored the reports? 8)
Did the State prove beyond a reasonable doubt that the sexual intercourse was by force and against the will of the complaining witness? 9)

The facts of this case, when reduced to a minimum, disclose that Deborah Miller, age 15, visited the home of her aunt on October 26,1967. About 7:00 P.M. on the next day, Miss Miller, intending to return to her own home, left her aunt’s home and walked to a nearby bus stop at the corner of 59th and Halsted Streets, Chicago. Miss Miller’s two cousins, Sharene Miller and James Green, accompanied her to the bus stop. A group of boys were standing on the corner as Miss Miller and her cousins approached and one of these boys, the defendant, reached out and grabbed Miss Miller by the arm. She pulled away but the defendant quickly regained his hold on her arm. Another boy came up and said something to the defendant whereupon the defendant, who was trying to kiss the struggling young lady, said: “You better do what he say because he has a gun.” Miss Miller’s two young cousins had, at this time, proceeded across the street and were shouting for her to hurry across the street because a bus was coming. Miss Miller struggled to free herself from the defendant’s grasp but was unable to do so. The other boy then grabbed her other arm and she was pulled toward a nearby alley. Miss Miller was told to “go on up in the alley” and, with the defendant holding her arm, she walked through the alley for about two blocks. Miss Miller was then taken across a street, through a gangway and up a stairway to a porch. Each of the boys had sexual intercourse with her on the porch. The defendant then told her that she could not leave and he took her through a back door into his apartment. There were several people in the apartment and the defendant introduced Miss Miller as his girl friend. Miss Miller sat in a kitchen chair and began crying. Shortly thereafter, the defendant’s mother came into the kitchen and said that the pohce were looking for a girl named Deborah Miller. The defendant then grabbed Miss Miller’s hand and tried to pull her out the back door. While being pulled through the doorway, she struck her head and was knocked unconscious. She was found lying on the floor between the kitchen and the rear porch by a pohce officer who was investigating the case and was taken to the Englewood Hospital for treatment. Subsequently, the defendant was arrested and charged with aggravated kidnapping and rape.

Defendant’s first point concerns the admissibility of certain statements made by defendant to a pohce officer prior to arrest and introduced at trial during the officer’s testimony. Specifically, Patrolman John Marusich testified in part as follows:

“Q. What else, if anything, did you see as you walked through that apartment?
A. I saw a young girl lying on the floor. She appeared to be unconscious. Her eyes were closed.
# # #
She was lying on the floor between the kitchen and the rear porch.
Q. Do you now know the name of that girl?
A. Yes.
Q. What is her name?
A. Deborah Miller.
Q. Was there any conversation had by you or any of those persons in that apartment with respect to the condition of that girl?
A. Yes.
Q. With whom or how many persons was that conversation had?
A. With one person, Robert Hall.
Q. What, if anything, was said by Robert Hall, and, or you with respect to that girl which you described lying on the floor?
A. I pointed to the girl lying on the floor—
# # #
and I said to Robert Hall, What happened to her?’ He replied, ‘She fainted when she saw you,’ referring to me. I then asked him, ‘How did she get into this apartment?’ He replied, ‘She came in by herself.’ [Emphasis added.]”

Defendant argues that these statements made by him were erroneously admitted into evidence because of an alleged prior agreement by the prosecutor that no statements of defendant would be introduced at trial. Defendant relies heavily upon People v. Mwathery (1968), 103 Ill.App.2d 114, 243 N.E.2d 429 in support of his argument. In Mwathery, the defendant, prior to trial, moved to suppress a statement of one Francis Gaines. At the pretrial hearing on the motion to suppress, the prosecutor advised the court and defense counsel that the statement of Francis Gaines would not be used for any purpose whatsoever. During the trial, however, the prosecutor established through examination of a witness that Francis Gaines had given a statement to the police and in his closing argument the prosecutor made a direct reference to the fact that Francis Gaines had given a statement to the police. At no time were the contents of the Gaines statement revealed by the prosecutor. On appeal, the defense argued that the State’s Attorney had committed prejudicial error when he made reference to a statement he had agreed not to introduce. In considering this point, the Mwathery court said:

“The defendants were prejudiced by the question of the prosecutor and the answer of the witness, as well as by the reference made to the statement in the State’s argument to the jury. The jury no doubt believed that the statement contained a confession by one of the defendants and might have even concluded that both defendants were implicated in the statement given by the defendant Gaines. » * * [T]his constituted a violation of the agreement made by the prosecutor at the time the motion to suppress the statement was about to be heard by the court. * * * This error alone might not have constituted reversible error, but together with [other substantial error which occurred at trial] is sufficient to require reversal and remandment.” 103 Ill.App.2d at 122-3.

Defendant contends that the situation in the case at bar is essentially identical to the one confronted by the court in Mwathery. A review of certain relevant facts in the instant case is necessary before the merits of defendant’s contention can be determined. In this case, as in Mwathery, defendant moved prior to trial to suppress under Miranda v. Arizona (1966), 384 U.S. 436, “any and all confessions, statements, or admissions of defendant made at the time of and after his arrest.” At the pretrial hearing on defendant’s motion to suppress, the following colloquy occurred:

“THE STATE: May it please the Court, in respect to the defendant’s motion to suppress confession the State alleges that the detective * * * who made the arrest in regards to this defendant indicated to the State in that there were no oral or written statements made by the defendant while in custody. And we have tendered a copy of this form prepared by the named detective to the defendant by and through his attorney.
THE DEFENSE: I take it what you mean at this time you have no statements relative to this defendant in this case.
THE STATE: Specifically as I can—
THE DEFENSE: You are specifying an officer’s name.
THE COURT: That is correct.
THE DEFENSE: No statements. Right * * *? There may be an oral admission or may be an exculpatory statement, I don’t know, your Honor. There is no statement, right?
THE STATE: To my knowledge there is not. To my knowledge.”

This colloquy, which we have quoted verbatim from the record, fails to support defendant's assertion that the prosecution agreed that none of defendant’s statements would be introduced at trial. It seems patently clear that both the prosecution and the court were referring only to statements “amounting to a confession” (as characterized by the court) when the prosecution indicated that no such statements would be used in the case. With respect to any other statements or admissions which the defendant might have made, the prosecution indicated only that it had no knowledge of any other statements. If, therefore, the prosecution may be said to have agreed to anything, it was only to refrain from using any statements in the nature of a confession. The statements in question here were not in the nature of a confession (see People v. Thomas (1967), 88 Ill.App.2d 71, 80, 232 N.E.2d 259 which sets out the requirements of a confession) and, indeed, were not of the character afforded protection by the rule in Miranda v. Arizona (1966), 384 U.S. 436. The sine qua non for invoking the Miranda rule is that the interrogation be focused on the accused while he is taken into custody or otherwise deprived of his freedom of action by authorities in any significant way. People v. Stansberry (1971), 47 Ill.2d 541, 548, 268 N.E.2d 431. In this case, defendant was not in custody or under any type of restraint by Officer Marusich when the statements were made. The officer, who was looking through defendant’s apartment, made what could appear to be a normal and ordinary on-the-scene inquiry when he encountered the body of a young girl lying on the floor. The defendant’s response was made voluntarily and sometime prior to his arrest. It was certainly not the product of close interrogation by the police. The compulsion and danger of intimidation that Miranda was designed to eliminate were clearly not present under the circumstances here. Hence, we do not believe that the statements involved in this case were inadmissible under the principles of either Mtoaihery or Miranda. We also note, parenthetically, that the Mwathery court did not specifically find reversible error in the situation there, even though the prosecutor had breached his explicit agreement not to use a particular statement at trial, but rather the court indicated that the error was insufficient of itself to require a reversal of the case. See also People v. Milligan (1969), 107 Ill.App.2d 58, 63—4,245 N.E.2d 551.

Defendant further suggests that the prosecution intentionally and dishonestly deceived him concerning the existence or anticipated use of the statements in question. Under these circumstances, he argues, it was error to allow the statements into evidence. We have carefully reviewed the entire record in this case and found no evidence of any intentional bad faith or chicanery by the prosecution. The statements were, as we have indicated, properly admitted into evidence and as such were proper subjects for consideration by the jury and, therefore, proper subjects for fair comment by the prosecution in its closing argument. We note also, before passing to the second contention, that defendant has failed to demonstrate that he suffered any significant harm by the introduction of the statements. He asserts in his written brief that the statements were “damaging to the defendant since they were inconsistent with other evidence adduced at trial.” While it may be true that much of the State’s evidence was inconsistent with the content of defendant’s statements, it is also true that the statements were entirely consistent with defendant’s primary defense of consent by Miss Miller. Defendant may not validly claim that he was highly prejudiced and denied a fair trial merely because the statements were inconsistent with other trial evidence. Indeed, this court would be hard pressed to find a trial record which did not contain inconsistencies and contradictions in the evidence. Such evidentiary conflicts, in fact, define the very function of a trier of fact. Hence, for the reasons indicated, we find no merit in defendant’s claims of prejudicial harm and reversible error as he has presented them in his first contention.

Defendant’s second contention also concerns the oral statements which were the subject of his first contention. Defendant argues that the trial court erred by refusing to conduct a preliminary hearing to determine the admissibility of those oral statements. We do not agree. The record reveals that at trial defense counsel objected to the introduction of the statements prior to their introduction and asked for an immediate hearing outside the jury’s presence. The trial judge took counsel for the defense and the State to his chambers (outside the presence and hearing of the jury) and heard arguments concerning the admissibility of the statements. Defense counsel, who had withdrawn his written motion to suppress at the pretrial hearing, asked leave to file a motion to suppress confession. Leave was granted instanter and the motion was denied. Defense counsel was then advised that he had the right to file a written option to suppress if he so desired. The basis of the court’s ruling on defendant’s motion to suppress was that the statements in question did not constitute a confession by defendant. Defendant’s objection to the testimony concerning Officer Marusich’s conversation with defendant was then overruled and the statements were introduced. Defendant never renewed his motion to suppress, i.e., never filed a written motion as he had a right to do, but did move for a mistrial at the conclusion of Officer Marusich’s testimony. The motion was argued in chambers and largely centered about the admissibility of defendant’s oral statements to Officer Marusich. The motion was denied and the trial continued.

Under the particular circumstances which we have carefully recited, we believe that the trial court’s ruling on the admissibility of the statements was neither arbitrary nor in total disregard of defendant’s rights to a hearing on the issue. The court had before it aU relevant evidence concerning the circumstances under which the statements were made and the character or quality of the statements themselves. Counsel for both sides were aUowed to argue their respective positions on the issue of admissibility. Based upon the evidence and its understanding of the applicable law, the court denied defendant’s oral motion to suppress and overruled his evidentiary objection to the admission of the statements. We concur with the court’s ruling and we find no merit in defendant’s contention that the trial court abused its discretion by allowing the statements into evidence. Moreover, we do not believe that the statements complained of could have caused the jury to return a verdict contrary to all the other evidence and any error resulting from the recital of defendants remarks did not, in our view, constitute reversible error.

For his third contention, defendant argues that the court erred by failing to conduct a preliminary hearing concerning the competency of a twelve-year-old child to testify. At trial, the State called James Green, a twelve-year-old boy, to testify. Defendant quickly objected to the competency of the boy and moved for an examination as to competency. The State offered no particular objection to defendant’s request but noted that the court had an opportunity to hear the boy testify at a pretrial hearing. The court denied defendant’s motion, stating “* * * the Court has observed this witness at a previous hearing as part of this proceedings. It is the Court’s opinion that this witness is competent to testify.” Defendant argues that the court abused its discretion by allowing the witness to testify.

In Illinois a witness is not presumed competent to testify until he is fourteen. Shannon v. Swanson (1904), 208 Ill. 52, 69 N.E. 869. When a child is under fourteen, his competence is ascertained by examining him as to his intelligence, understanding and moral sense. People v. Davis (1957), 10 Ill.2d 430, 140 N.E.2d 675, cert, denied, 355 U.S. 820 (1957). To be competent the child must be “* * * sufficiently mature (1) to receive correct impressions by his senses, (2) to recollect these impressions, (3) to understand questions and narrate answers intelligently, and (4) to appreciate the moral duty to tell the truth (and comprehend the meaning of the oath).” People v. Sims (1969), 113 Ill.App.2d 58, 61, 251 N.E.2d 795. It is clear, therefore, that it is not age, but the degree of intelligence of a child, which determines the question of the child’s competency. In the case at bar, the intelligence of the witness was ascertained by his appearance, conduct and manner of testifying at a pretrial hearing where, incidentally, he was called as a witness by the defense. The tenor of his testimony during the pretrial hearing and, indeed, during the trial itself indicates that the child was entirely competent to testify as measured by the standards set forth in Sims. Defendant has not demonstrated that the child was in any way incompetent or of substandard intelligence and our independent review of the record reveals no evidence of any deficiency in the child’s ability to testify competently. It is only where there has been an abuse of discretion or a manifest misapprehension of some legal principle that a decision to admit such testimony will be reviewed. People v. Davis (1957), 10 Ill.2d 430, 437, 140 N.E.2d 675, cert. denied, 355 U.S. 820 (1957). We find no reason to disturb the court’s determination that the witness was competent.

Defendant argues in his fourth contention that the trial court erred by denying his motion to suppress certain physical evidence, i.e., a blue jacket and a pair of brown trousers. The jacket was removed from defendant’s apartment prior to or contemporaneous with his arrest and the trousers were removed from his person after his arrest. The thrust of defendant’s contention is that the police unlawfully entered his apartment and, therefore, unlawfully seized the jacket, that the unlawful seizure of the jacket led to his detention thereby rendering the detention unlawful, and that the unlawful detention led to the seizure of his trousers thereby rendering their seizure unlawful. The crucial determination to be made, therefore, is whether the police had a right to enter defendant’s apartment. If their entry was lawful, defendant would not dispute that the seizure of the jacket was proper. Hence, we need inquire only into the propriety of the initial entry by police into defendant’s apartment.

The facts disclose that numerous police units were involved in the investigation of Miss Miller’s abduction. Speed was, of course, essential under the circumstances for any delay on the part of police might have seriously endangered the life of the alleged kidnap victim. Moving swiftly, therefore, and constantly exchanging information over their radios, the police obtained the details of the offense and a description of the suspects from the eyewitnesses. Shortly thereafter, as evidenced by radio transmissions between police vehicles, the police determined that one of the suspects used the alias of “Mad Dog.” “Mad Dog” was identified to be Robert Hall, the defendant. The police then received information concerning defendant’s address, i.e., the second floor apartment at 6022 South Union Street, Chicago. Officer John Marusich was the first policeman to arrive at that location. He proceeded to the front door of the apartment and was met by defendant’s mother. He spoke with her briefly and apparently inquired about the missing girl. Defendant’s mother left him standing in the hallway while she went to the rear of the apartment to speak with her son. The door of the apartment was left open and, after waiting a few moments, the officer walked in and saw Miss Miller lying unconscious on the kitchen floor with defendant standing nearby.

Under the circumstances which we have presented, we are of the opinion that Officer Marusich had reasonable grounds to believe that a crime had been committed and that defendant had committed it when he arrived at defendant’s apartment, and his entry without a warrant was valid under the “exigencies of the situation.” Warden v. Hayden (1967), 387 U.S. 294, 298. His cautious approach before entering indicates his concern for the safety of the victim and reflects favorably upon his competence as a police officer. This is clearly not a case where probable cause was developed only as a result of an unlawful entry, and authority to the effect that an entry cannot be justified by its fruits is inapplicable. Because the basis for a valid arrest existed prior to the entry, the entry was clearly justified under Ill. Rev. Stat. 1967, ch. 38, par. 107 — 5(d): “All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to make an authorized arrest.” People v. Johnson (1970), 45 Ill.2d 283, 288, 259 N.E.2d 57. The seizure of the blue jacket and brown trousers thus cannot be barred as being tainted from the outset by an unlawful invasion.

For his fifth contention, defendant asserts that he was denied a fair trial because of an alleged improper remark by the prosecutor during closing argument. After defense counsel had concluded his closing argument, which centered largely around the issue of consent by Miss Miller, the prosecution argued in rebuttal. We now set out the relevant portion of the record:

“THE STATE: * * * All our indictment indicates is that he took this girl with force, against her will, and raped her. Now, he comes with some amazing determinations, I presume that it is legal in nature. Well, [he says] she gave him consent. She is 15 years of age. She could not properly give him consent under the law—
THE DEFENSE: Objection, your Honor. It is not the law.
THE COURT: The Court will instruct the jury as to the law. Let us proceed.”

Defendant argues that the prosecutor’s remark was an improper attempt to incorrectly instruct the jury concerning the applicable law and was so prejudicial because of an adverse effect on the jury that a new trial is necessary. We find no merit in defendant’s fifth contention.

First, we note that the prosecutor was not able to finish his sentence before being interrupted by the defense objection. Hence the propriety of the remark cannot be fairly determined. Second, we note that the trial judge quickly interjected with a curative remark. Third, the prosecutor made no other similar comments concerning the law of consent. Fourth, the jury was later instructed by the court as to tire applicable law involved in the case. The existence of these factors clearly distinguishes the instant case from People v. Weinstein (1966), 35 Ill.2d 467, 220 N.E.2d 432 and People v. Wright (1967), 80 Ill.App.2d 300, 225 N.E.2d 460, upon which defendant relies. Moreover, even if the remark by the prosecutor was viewed as an improper one, we are of the opinion that it could not have been a material factor in defendant’s conviction, and therefore did not constitute reversible error. Improper remarks do not constitute reversible error unless they result in substantial prejudice to the accused. People v. Nilsson (1970), 44 Ill.2d 244, 248, 255 N.E.2d 432, cert. denied, 398 U.S. 954 (1970).

Defendant’s sixth contention concerns the instructions given to the jury prior to their deliberation. Defendant contends that the court erred by refusing to give Defense Instruction No. 14, which stated: “When I use the words *by force and against her will’ I mean that under the circumstances the female did not voluntarily consent to sexual intercourse.” Defendant argues that his entire case rested on the issue of consent and he seems to suggest that the jury was inadequately instructed on this issue. We do not agree. The record indicates that State’s Instruction No. 7, which recited the statutory definition of rape, was given and was immediately followed by Defense Instruction No. 15, which stated:

“To sustain the charge of rape, the State must prove the following propositions:
# # #
Third: That the act of sexual intercourse with Deborah Miller was by force and against her will, and that she did not voluntarily consent to it. Emphasis added.

We believe that these instructions, when considered as a whole, fairly reflect that the jury was fully instructed as to the law applicable to the facts underlying the defense of consent. This factor clearly distinguishes the cases upon which defendant relies for in those cases the jury received no instructions concerning the issue of voluntary consent by the prosecutrix. Defense Instruction No. 14 was merely repetitious and the trial judge’s refusal to give it was not, therefore, reversible error.

Defendant did not testify at trial and, for his seventh contention, he argues that certain remarks by the prosecutor in closing argument constituted a denial of his constitutionally protected privilege against self-incrimination because those comments were an impermissible reference to his failure to testify. See Griffin v. California (1965), 380 U.S. 609. The remarks to which defendant objects are as follows: “If you [the jury] will recall, Officer Marusich asked Mr. Hall, What happened?’ pointing to the young Deborah Miller as she lay unconscious at that location. His answer was, ‘She fainted when she saw you.’ Uncontradicted. Uncontroverted.”

The Illinois Supreme Court has held that an appropriate test in determining whether a defendant’s right to remain silent has been violated is whether the reference in closing argument was “intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal right to testify.” People v. Burton (1969), 44 Ill.2d 53, 56, 254 N.E.2d 527. It is permissible, however, for a prosecutor to comment on the uncontradicted nature of the State’s case even where the only person who could have contradicted the State’s evidence was the defendant himself. People v. Mills (1968), 40 Ill.2d 4, 8, 237 N.E.2d 697; People v. Keagle (1956), 7 Ill.2d 408, 131 N.E.2d 74, cert. denied, 351 U.S. 942 (1956). In the instant case, the prosecutor stated only that the testimony of Officer Marusich concerning the conversation he had with the defendant had not been contradicted. We do not believe that the prosecutor’s reference exceeded the limits of allowable comment. See People v. Mentola (1971), 47 Ill.2d 579, 582—3, 268 N.E.2d 8.

For his eighth contention, defendant asserts that he was denied a fair trial because the prosecutor showed a police officer and a crime lab technician their respective case reports in the presence of the jury. The record indicates that the prosecutor, at the conclusion of his direct examinations of the officer and the technician, had certain documents marked for identification and then asked each of the witnesses to examine the documents. Each witness indicated that the documents he was shown constituted his case report in the matter. Defendant suggests that this procedure by the prosecutor was an improper attempt to strengthen and corroborate the witnesses’ testimony and had the effect of forcing defense counsel to use the reports for cross-examination or suffer the inference that he was hiding something from the jury.

The rule of law upon which defendant bases his contention is that it is error for such reports to be tendered to the defense in the presence of the jury. People v. Lowe (1967), 84 Ill.App.2d 435, 228 N.E.2d 563; People v. Beard (1966), 67 Ill.App.2d 83, 214 N.E.2d 577. Although in the instant case the reports were not actually turned over to defense counsel in the jury’s presence, we agree that the prosecutor’s actions were generally of the same improper character. However, though we do not approve of the prosecutor’s conduct, we do not find reversible error in the case at bar. Here the prosecutor made no other references to the reports during trial or closing argument and did not suggest to the jury that the reports were of any corroborative value. Moreover, timely objections by the defense and detailed instructions given to the jury prior to their deliberation clearly nullified any adverse effect suffered by the defendant. We befieve, therefore, that the error was harmless and could not have affected the result in this case. See People v. Cunningham (1970), 123 Ill.App.2d 190, 260 N.E.2d 10; People v. Bickham (1968), 91 Ill.App.2d 465, 235 N.E.2d 400.

Defendant’s final contention is that the State failed to prove beyond a reasonable doubt that the sexual intercourse was by force and against the will of the complaining witness. In deciding this question, we are mindful that the examination of evidence in a rape case demands utmost caution and circumspection by a reviewing court because a female’s accusation, often stemming from clandestine circumstances, is easily made, difficult to prove and frequently even more difficult to disprove. We are also mindful, however, that a jury is in a far superior position to observe witnesses, determine their credibifity and resolve evidentiary conflicts. With these principles guiding us, we have carefully scrutinized the entire record and have concluded that the evidence was indeed sufficient to establish defendant’s guilt beyond a reasonable doubt. Hence we find no merit in defendant’s final contention.

The judgment of the trial court is affirmed.

Judgment affirmed.

BURKE, P. J. and GOLDBERG, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE RURKE

license: Public Domain

text:
    Alfred Fein, Plaintiff-Appellant, v. Al Turchen, et. al., Defendants-Appellees.
    (No. 54874;
    First District
    September 21, 1971.
    Martin Tiersky, of Chicago, for appellant.
    Medansky, Cohan, Medansky & Valentino, of Chicago, (Peter J. Valentino, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE RURKE

delivered the opinion of the court:

This was an action to recover for medical services allegedly rendered by plaintiff to defendants’ son at defendants’ request. Summary judgment was entered for defendants and plaintiff appeals.

The amended complaint alleged that plaintiff is a doctor licensed to practice medicine in this State; that the defendants, AI Turchen and Sarah Turchen, are husband and wife; and that they have a son, Arthur Turchen. It was further alleged that defendant Sarah Turchen, acting with authority, engaged plaintiff to perform medical services for Arthur, and that there was a balance due for said services in the amount of $738.

The defendants’ answer to the amended complaint denied, inter alia, that they were indebted to the plaintiff in any amount, and, as an affirmative defense, alleged that defendants had made payment to plaintiff for all services performed by him.

Defendants thereafter filed a motion for summary judgment, alleging that in a discovery deposition taken by defendants, plaintiff admitted that he was a sole medical practitioner; that he billed defendants for treatments of Arthur which were in fact performed by doctors other than the plaintiff and for which services he did not compensate the other doctors; that during a period of time when Arthur had been hospitalized for treatment by plaintiff, plaintiff himself was also hospitalized in a different hospital; that plaintiff requested the other doctors to look after his patients while plaintiff was in the hospital; and that defendants were charged the sum of $800 for services not actually rendered by the plaintiff himself.

Plaintiff filed a motion to strike the motion for summary judgment on the ground that defendants failed to file with the cotut the deposition taken of plaintiff with which they supported their motion for summary judgment, as required by section 57(3) of the Civil Practice Act. (Ill. Rev. Stat. 1969, ch. 110, par. 57(3). Plaintiff also filed a counter-affidavit in opposition to the motion for summary judgment, alleging in substance that plaintiff had actually treated the defendants’ son in the hospital where the son had been confined for a specified period of time; that plaintiff received some $1800 from defendants on account of the said services; that such amount advanced was for services apart from those rendered by the other doctors; that defendants’ son was treated by two doctors other than plaintiff who acted for and on behalf of plaintiff, and under his direction and control; that during the period of the treatments of the other two doctors, plaintiff consulted with them and prescribed suitable treatment for defendants’ son on an almost daily basis; that defendants continually stated to plaintiff that they would pay for the services he rendered in the consultations with the other two doctors; and that plaintiff would testify to such matters if called as a witness at a trial of the issues.

The trial court denied plaintiff’s motion to strike the motion for summary judgment, and judgment was entered for the defendants and against the plaintiff, from which the plaintiff prosecutes this appeal.

Plaintiff initially contends that the defendants’ motion for summary judgment should not have been granted inasmuch as it was based substantially upon excerpts taken from a deposition given by plaintiff which had not been filed with the court as required by Section 57(3) of the Civil Practice Act. Assuming, but without deciding, that the matters quoted from the unfiled deposition were properly before the trial court, it is nevertheless clear that this was not a proper case for the granting of a summary judgment; there existed genuine issues of material fact which necessitated a trial of the cause.

Section 57(3) of the Civil Practice Act recites in part: “* * * The judgment or decree sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law * *

The summary judgment procedure permits the trial court to determine if there exists any genuine issue of material fact, but does not permit the court to arrive at a final determination of any such issue which may exist. Kobus v. Formfit Co., 35 Ill.2d 533, 538.

In the instant case, the defendants’ affidavit in support of their motion for summary judgment, and the plaintiff’s counteraffidavit in support of his motion to strike the motion for summary judgment, create a genuine issue of material fact as to whether the plaintiff was entitled to recover for the services which he alleges he rendered to the defendants’ son, in the form of consultations and prescriptions of treatment with the other doctors who were actually treating the defendants’ son at the time of plaintiff’s own hospitalization. Further, there is an issue of fact as to the number of days the plaintiff was hospitalized, as well as the number of horns for which he was allegedly entitled to compensation in this regard. Whether defendants knew of plaintiff’s alleged services in this regard and agreed to compensate him for those services was likewise an issue of fact to be tried. Under the circumstances, summary judgment should not have been granted.

For these reasons the judgment is reversed and the cause is remanded for a trial of the issues.

Judgment reversed and remanded.

LYONS and GOLDBERG, JJ., concur.


author: Mr. JUSTICE GOLDBERG

text:
    Richard Herglund, et al., Plaintiff-Appellant, v. New York, Chicago, & St. Louis, Railroad Company, et al., Defendant-Appellee.
    (No. 55038;
    First District
    September 21, 1971.

      Fitzpatrick & Gulbranson, of Chicago, (Peter Fitzpatrick and John W. Burgess, of counsel,) for appellant.
    Winston, Strawn, Smith & Patterson, of Chicago, (Edward J. Wendrow and Stanley A. Walton, III, of counsel,) for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Richard Herglund (plaintiff) sued New York, Chicago and St. Louis Railroad Company, an Illinois corporation also known as Nickel Plate Railroad but now known as Norfolk and Western Railway Company (Railroad) for negligence. Plaintiff seeks damages individually for his personal injuries and also as administrator for alleged wrongful death of plaintiíFs late wife, Glenda Sue Herglund. The cause involves a train and automobile collision at a grade crossing in Paxton, Illinois.

A jury trial was held after which verdicts were returned against plaintiff in both capacities. The jury also returned affirmative answers to three special interrogatories: “1. Was decedent, Glenda Sue Herglund, guilty of negligence which proximately contributed to cause the occurrence in question? 2. Were the plaintiff, Richard Herglund, and the decedent, Glenda Sue Herglund, engaged in a joint enterprise at the time of the occurrence? 3. Was plaintiff, Richard Herglund, guilty of negligence which proximately contributed to cause the occurrence in question?”

The trial court entered judgment on the verdict in favor of the Railroad, from which plaintiff appeals. A statement of the pertinent facts is essential.

Paxton, Illinois, a town of some 4000 people is located in Ford County. Railroad operates a main track traversing Paxton in an east-west direction. Going to the west, the main track and another closely parallel set of tracks cross, in order, Washington Street, Union Street, Vermillion Street, State Highway 45 and Market Street. The train in question, operated by Railroad personnel, was a freight train proceeding west on the main track which is to the south of the other tracks. Some 800 feet to the east, the main track curves to the north. The occurrence took place on May 22, 1963, at about 4:45 p.m. Daylight Savings Time, or 3:45 P.M. Railroad or Standard Time. The weather was sunny and clear.

The crossings at State Highway 45 and at Market Street are equipped with signal flashers to warn motorists. The crossing at Vermillion is protected only by wooden crossbuck signs which are north and south of the tracks. The southern crossbuck, which is visible by northbound motorists, is placed some 33 feet south of the main track and nine feet east of the east side of the Vermillion pavement. At a point on Vermillion Street 200 feet south of the main track, the track is three feet over the grade of Vermillion. At a point 25 feet south of the main track, it is one and one-half feet over the grade of Vermillion. Otherwise expressed, the grade percentage from a point 25 feet south of Vermillion Street is six per cent. The train involved in this occurrence was made up of three diesel units, each some 15 feet high and 44 freight cars. The tracks add about five inches to the height of the locomotives. The train was operated by a crew of five Railroad personnel. An engineer controlled the train from the north side of the first diesel unit. A fireman was stationed on the south or left side of the first diesel. A brakeman was seated just behind the fireman. A conductor was stationed in the second diesel. There was a flagman in the caboose, some 2500 feet from the front of the train.

We will next attempt to describe the physical aspects of the crossing although that can be best shown by the photographs and a scale survey received in evidence. Vermillion Street is a 20 foot street with bituminous paving. Looking to the right, or to the east, there are a series of wooden bins and buildings, all owned by the Railroad. The first three of these are from 22 to 34 feet south of the main track and from 14 to 55 feet east of Vermillion. Going farther to the east, there is a one-story frame structure about 32 feet south of the track and some 62 feet east of Vermillion. Next in line is a one-story building about 26 feet south of the track and approximately 100 feet east of Vermillion. There are additional frame structures used by the Railroad located farther to the east. The next building is 26 feet south of the track and 128 feet east of the pavement. This is followed by a one-story building 25 feet south of the track and 175 feet east of the pavement. The last building is 25 feet south of the track and almost 200 feet east of the pavement. There are no trees north of any of these buildings.

Plaintiff testified that on the date of the occurrence his view to the east was restricted to 30 or 40 feet by the presence of two or three cars and two trucks which were parked between the Railroad buildings and the main track to the east of Vermillion. Plaintiff indicated the location of these vehicles on the scale survey. This shows two cars parked parallel to the main track north of the Railroad properties, next to the east a truck parked diagonally and further to the east another truck parked parallel to the tracks. Plaintiff testified that these vehicles were approximately ten feet south of the tracks. He described one truck as having a box-like structure. He described the other truck as having a flat bed with a rack on it. A photograph introduced in evidence by plaintiff shows two automobiles and two trucks parked between the tracks and the Railroad property. These trucks agree with plaintiffs description. This photograph was taken on September 14, 1963, close to four months after the occurrence. There is evidence by a Railroad employee that this photograph portrays the cars parked in their customary manner.

However, there is testimony by four Railroad employees, including three members of the train crew, that no cars were parked in this area on the date in question. This is corroborated by Railroad employees who worked in the buildings in question. Their testimony is to the effect that only two employees ever parked their cars south of the tracks and that both of them had left work and removed their cars prior to the accident. There is also testimony from three members of the Rain crew and from a truck driver employed by the Railroad, that only one truck was parked in the area in question. This truck was described by Railroad employees as being approximately eight to nine feet in height.

As the crossing is approached from the south, looking to the left or west, there is a paved road running east and west parallel to the main track and approximately ten or 12 feet south thereof. This road runs east to a T-shaped intersection with Vermillion. There are three trees located south of the road and about 45 feet south of the main track. A wooden pole is situated approximately halfway between the road and the railroad tracks, some 65 feet west of Vermillion. There is a one-story frame house some 48 feet south of the track.

Plaintiff and his wife were both young people, then approximately 20 years old. Plaintiff was stationed at an Air Force Base some ten miles from Paxton. The deceased was employed in Paxton at a location south of the railroad Rack and slightly east of State Highway 45. Plaintiff drove from the Base to the decedent’s place of employment. The automobile was jointly owned by plaintiff and decedent. At about 4:30 P.M. Daylight Time, she entered the automobile and they proceeded toward their home which was north of the raihoad crossing. Plaintiff drove east to Vermillion SReet then made a left turn and drove north on that street toward the crossing. Plaintiff testified that he had taken this route some two or three times a week for a period of two to three months before the fatal accident. Plaintiff had previously seen only one Rain at the crossing; in March or April of 1963. This Rain was going east and had crossed Vermillion SReet when plaintiff was about a block south.

Plaintiff testified that when he was some half block south of the crossing, he drove at approximately 25 miles per hour. Plaintiff first looked to the right when he was 25 feet south of the crossing. This would place his automobile at that time some eight feet north of the crossbuck. When plaintiff looked right, he saw only the buildings above described, two Rucks and two or three automobiles. At that point, he could see from 30 to 40 feet down the tracks in an easterly direction. At that time, plaintiff had reduced his speed to some 15 miles per hour and he had his foot on the brake.

Plaintiff looked right for about one-half a second or so and then looked left. At that time, he was approximately 15 feet south of the main track. He testified that here he could see 50 to 75 feet down the track looking to the left or in a westerly direction. Plaintiff could see nothing on the track. He put his foot on the gas because of the grade. Plaintiff then looked to the right for the second time. At that time, the front end of his automobile was on the track and his speed was some five to ten miles per hour. Plaintiff testified that he did not hear anything at that time. The train struck the automobile instantly after plaintiff had looked to the right for the second time. Plaintiff was wearing sun glasses but they did not obstruct his vision. Plaintiff testified that his window was down at that time. He did not know if his wife’s window was open or closed. The deceased was sitting in the front seat next to plaintiff. As a result of the impact, plaintiff’s wife was instantly killed and plaintiff suffered personal injury.

Plaintiff testified that he did not hear a whistle or bell from the train. Furthermore, he testified that he did not hear the train. When plaintiff had previously seen a train at this crossing, he had heard the train from a distance of perhaps a block away. At the trial plaintiff testified that the car radio was not on. However, on his deposition, plaintiff had testified that the car radio was on and that he was listening to music, which was his usual practice. Also plaintiff and the deceased were engaged in conversation as they approached the track.

As regards to the blowing of the whistle and sounding of the engine bell, testimony was given by the fireman that the whistle and bell were sounded commencing when the train came to a point some 1500 feet east of the crossing of Washington Street. It will be recalled that this street is the second block to the east of Vermillion. He testified that the whistle and bell were also sounded for the crossings of Union Street and Vermillion. This testimony was corroborated by the head brakeman and by the conductor. The engineer was in the act of blowing the train whistle when the fireman directed him to make an emergency stop. In addition, some six citizens who lived in the area testified that they heard the train whistle or bell and heard the crash a few seconds later.

Also, a motorist approaching the crossing on Vermillion Street from the north saw the impact. He heard the noise of the approaching train for about five or six seconds before he saw plaintiff’s car. He testified that plaintiff’s car approached the tracks at about 20 miles per hour or probably quite a bit slower. This speed did not vary until the collision; which occurred about three seconds after he first saw the car. The mother of this witness was a passenger in his car. She first heard the train coming when they were three-quarters of a block, or about 300 feet, north of the tracks. The impact was ten seconds later. In her estimation, plaintiff’s car traveled about one-fourth of a block during that time.

The engineer testified that the authorized speed of the train through Paxton was 49 miles per hour. At the time, the train was traveling at a speed of about 45 miles per hour. The engineer was stationed on the north side of the train in the cab of the diesel unit. He did not see the automobile at any time before the impact. When alerted by the fireman, he made an immediate emergency stop. The train did not come to a stop until a point some 2000 feet west of Vermillion Street.

None of the remaining members of the train crew saw plaintiff’s automobile prior to impact, except for the fireman. He was stationed on the left or south side of the locomotive. He testified that the train was moving approximately 45 miles per hour. When he first saw the automobile, the train was approximately 100 feet east of Vermillion Street and the automobile was then some 140 feet south of the main track. At that time, he could not estimate its speed. After his first glance at the car, his view was temporarily obstructed by one of the buildings south of the track. He next saw the car at the crossbuck sign. He estimated that its speed was then about 25 miles per hour. It did not slacken or vary this speed thereafter. He then called to the engineer for the emergency stop but the collision occurred within the second.

In seeking reversal, plaintiff contends:

1. Erroneous instructions given by the trial judge effectively removed from consideration by the jury the issue as to whether the railroad crossing was extrahazardous.
2. Plaintiff was deprived of a fair trial because the trial court erroneously received in evidence incompetent photographs offered by defendant.
3. There was no evidence of joint enterprise between plaintiff and his wife. Therefore, the trial court erred in submitting the issue of joint enterprise to the jury by instructions and by a special interrogatory.
4. The trial judge erroneously gave an excessive number of instructions repeating propositions of law regarding contributory negligence in connection with the separate claims of plaintiff individually and also as administrator.
5. The trial court erred in refusing to submit to the jury the question of whether defendant was guilty of willful and wanton misconduct.

In each instance, Railroad takes a contrary view of these contentions. It argues strongly that the special finding of the jury that plaintiff was guilty of contributory negligence rendered harmless all possible trial errors which did not tend to produce this result. Further, defendant urges that plaintiff was guilty of contributory negligence as a matter of law. We will consider these various contentions virtually in the order stated. As required, we wiU give separate consideration to plaintiff’s causes of action as an individual and as administrator.

We will first consider the issue of contributory negligence of plaintiff. As shown, the jury found by answer to special interrogatory that plaintiff was guilty of negligence which proximately contributed to cause the occurrence. There is evidence by four employees of Railroad, and also by six unimpeached and apparently impartial eyewitnesses, that the whistle and bell were being sounded by the train crew long before the time of impact. The motorist and his mother, traveling south on VermiUion, both testified that they heard “a noise” from the train for some time before impact. As against this, plaintiff testified only that he did not hear the train. Yet plaintiff testified that on another occasion, in approaching his same crossing, he did hear the train when about a block away.

Plaintiff’s testimony is weakened by impeachment. He testified that his front window was open and that his car radio was not turned on. However, on cross-examination, he admitted that his deposition testimony was that his car radio was in operation and he was listening to the music. He also admitted that at this time he was engaged in a conversation with his wife. Under these circumstances, it must be concluded that the answer given by the jury to this special interrogatory was correct by a great preponderance of the evidence based upon failure of plaintiff to use his sense of hearing. In a closely analogous case, Pedrick v. Peoria & Eastern RR. Co., 37 Ill.2d 494, 511, the Supreme Court contrasted the dubious probative value of highly equivocal testimony with, “* * ” the uinequivocal testimony by persons with no apparent interest in the outcome of this lawsuit and the corroborative testimony of the railroad employees * * * The Supreme Court held that the evidence there, even viewed most favorably to plaintiff, so overwhelmingly favored defendant that no contrary verdict could ever stand. In the case at bar, we need not apply the same principle. It is not necessary for us to hold that the trial court should have directed a verdict at the close of all the evidence because of plaintiff’s contributory negligence. We reach the patent conclusion that the finding of the jury in this regard is supported by a great preponderance of all the evidence.

The above conclusion, based upon failure to heed the audible warnings of the approach of the train is further buttressed by unheeded visual evidence of danger. As regards plaintiff’s view to the west, or his left, it is clear from all the evidence that plaintiff’s view was not obstructed. The absence of obstruction in this direction is not probative since the train came from the east and toward the west. However, plaintiff’s testimony regarding the view to the west is important because, in our opinion, it was one of several decisive factors in impeaching plaintiff and in causing the jury to find him guilty of contributory negligence. Plaintiff testified that when he was about 15 feet from the tracks he looked to the left, which was west, and could see only about 75 feet. The evidence, including photographs introduced by plaintiff, shows that this testimony was incredible. There is an improved street running roughly parallel to the main track some ten or 12 feet to the south. Thus, when plaintiff was 15 feet south of the track he had virtually an unlimited view to the west. This necessarily caused the jury to lose faith in plaintiff’s testimony.

As regards plaintiff’s view to the east, or right, from which direction the train was arriving, plaintiff testified that he looked for the first time when he was 25 feet south of the crossing and was able to see only 30 or 40 feet down the track. This testimony was completely contradicted. Plaintiff based his inabfiity to see for a longer distance upon the presence of two automobiles and two trucks parked north of the Railroad bufidings. But, as shown above, the evidence given by Railroad employees established that there were no cars, and only one truck parked in the area southeast of the tracks. To add to the finality of this evidence, an additional factor is the height of a diesel unit of 15 feet, plus the five inch height of the tracks, plus the elevation of the tracks one and one-half feet above the grade of the street. These matters combined, all serve to destroy plaintiff’s testimony regarding obstruction of his view.

Plaintiff testified that he was traveling at low speed. The alleged obstructions pointed out and depended upon by plaintiff in this case have no materiality because plaintiff testified that he did not look to the east until he was about 25 feet south of the main track. Plaintiff knew from his familiarity with the area that he was at a railroad crossing. He had seen a train at this very spot. He knew that he was approaching a place of grave danger. He had seen the warning crossbuck a number of times before. On this day, he had seen the crossbuck when he was a block south of the tracks. He knew that there was no protection at this crossing other than his own audio and visual powers. Yet, plaintiff chose to approach to a point 25 feet south of the main track before looking in either direction. Plaintiff’s own testimony thus establishes that any obstruction of his view to the east from any point more than 25 feet south of the main track could not have been the proximate cause of his mishap. The evidence here hows that at a speed of 15 miles per hour plaintiff’s car advanced 22 feet per second. Even considering plaintiffs testimony that he reduced his speed, it is evident that he allowed himself very little time indeed for the exercise of due care in examination on both sides of the crossing. Only the presence of a complete obstruction could arguably excuse plaintiff from his duty to look before approaching the tracks beyond the crossbuck.

The conclusion, therefore, is inevitable that plaintiff was guilty of contributory negligence and the special finding of the jury in this regard as well as the general verdict against plaintiff individually were both eminently proper and fully justified by the evidence.

It remains to consider the effect upon this special verdict of the various trial errors alleged and depended upon by plaintiff. The first error regards the contention that the court removed from consideration by the jury the issue as to whether the crossing was extrahazardous. We need not consider or pass upon this alleged error. Since we approve the special verdict that plaintiff was guilty of contributory negligence, it follows necessarily that plaintiff’s individual cause of action is barred regardless of whether the proof showed that Railroad was guilty of negligence. The law of this jurisdiction, although assailed as being harsh and even unjust, is clear and definite that the issue of contributory negligence is separate and distinct from the defendant’s guilt of negligence and, “* * * it has been repeatedly held that notwithstanding the negligence of the defendant, if such is shown, contributory negligence bars recovery.” Prill v. City of Chicago, 317 Ill.App. 202, 209. See also, Carter v. Winter, 32 Ill.2d 275, 284; Siebens v. Konicek, 108 Ill.App.2d 300, 303; Jellen v. New York, Chicago & St. Louis RR. Co., 53 Ill.App .2d 44, 49.

The next alleged Rial error is directed against the ruling of the court in receiving in evidence certain of Railroad’s exhibits despite objection aptly made that they were posed photographs taken long after the occurrence and did not accurately portray the circumstances which existed at the time in question. The purpose of the photographs; and, indeed, their only effect, was to demonstrate to the jury that the engine was larger and taller than an automobile. This is a fact of universal common knowledge. The photographs were cumulative at best. In addition, the comparative height of engine and car had no bearing or effect upon the finding of contributory negligence which, as above pointed out, rested upon failure of plaintiff to use his sense of hearing, impeachment of plaintiff and plaintiff’s complete failure to look in either direction until he was 25 feet from a known danger.

The third and next assignment of error pertains to the issue of joint enterprise. This issue has no bearing whatsoever upon plaintiff’s guilt of contributory negligence.

The next and fourth alleged error is directed to repetition in the instructions by the court. Plaintiff points out that the court instructed the jury that it was the duty of plaintiff to use ordinary care and also that it was the duty of the decedent to use ordinary care. I.P.I. 10.03 as revised was thus repeated as to plaintiff and decedent. In addition, I.P.I. 11.01, defining contributory negligence, was similarly repeated. Separate instructions on burden of proof on the issues were given as to plaintiff and as to decedent and both of these instructions stated the burden of proof concerning use of ordinary care (I.P.I. 21.02).

It is true that needless repetition in instructions should be avoided. In fact, one of the many benefits resulting from adoption of pattern instructions was elimination of repetition caused by homemade instructions created by both sides with only the benefit of their respective clients in view. This appears from the authorities cited by plaintiff which antedate I.P.I. (Randal v. Deka, 10 Ill.App.2d 10; Raker v. Thompson, 337 Ill.App. 327.) However, it seems to us that the trial court was properly anxious to avoid confusion which might well result if the diverse elements in the separate causes of action for injuries and wrongful death were commingled. (See Freer v. Rowden, 108 Ill.App.2d 335.) In addition, these repetitions were, in two cases, simply definitions. The only mandatory instruction was that regarding burden of proof. This instruction was mandatory against Railroad just as it was, in a sense, mandatory against plaintiff. In view of the strong character of the evidence of contributory negligence of plaintiff, we cannot see from this record that plaintiff was prejudice in any manner by this repetition in the instructions. Under these circumstances, with no showing of prejudice, it is our duty to affirm the judgment. Sherman v. City of Springfield, 111 Ill.App.2d 391, 410; Christianson v. City of Chicago Heights, 103 Ill.App.2d 315, 327; Hedge v. Midwest Contractors Equipment Co., 53 Ill.App.2d 365, 386.

The last point raised by plaintiff pertains to refusal of the trial court to submit to the jury the issue of Railroad’s guilt of willful and wanton misconduct. The second count of the amended complaint alleged that Railroad was guilty of willful and wanton misconduct in that it maintained an extrahazardous crossing without means of warning of approaching trains; operated the train at excessive speed; failed to sound a whistle or bell and failed to maintain a lookout for motorists. At the close of all the evidence, the trial court ruled that these issues would not be submitted to the jury for lack of evidence to support the second count of the amended complaint.

The words “willful and wanton” describe a legal concept which is simple of definition but often difficult of application. These words have been defined in so many learned legal opinions that further definition is unnecessary. We need simply refer to Klatt v. Commonwealth Edison Co., 33 Ill.8d 481, 488, which in turn sets forth the commonly accepted definition given to us in Schneiderman v. Interstate Transit Lines Inc., 394 Ill. 569, 583.

The parties have cited some 30 cases bearing upon this question. To consider them all would expand this opinion to volume length. We have considered these authorities as well as aU of the evidence in the vohiminous record. Plaintiff cites and depends strongly upon Maltby v. Chicago Great Western Ry. Co., 347 IlLApp. 441, where the court was unable to say that the trial court erred in permitting the case to go to the jury on the willful and wanton counts. The most recent decisions cited by defendant are Trumbo v. Chicago, Burlington & Quincy RR. Co., 389 Ill. 213 and Robertson t>. New York Central RR. Co., 388 Ill. 580; both railroad crossing cases. In these cases, the Supreme Court reversed the Appellate Court and held that the evidence did not support the charge of willful and wanton conduct.

In the case at bar, there is no evidence of excessive speed. The engineer testified that the authorized speed in Paxton was 49 miles per hour and the train was traveling at 45 miles per hour. If the crossing was extrahazardous so as to require some warning in addition to the wooden crossbuck, this would have shown negligence but would not have shown willful and wanton misconduct under plaintiff’s evidence here as applied to any accepted legal definition of that phrase. The evidence as to sounding of a whistle or bell preponderates greatly in favor of defendant. As regards the issue of lookout, there is no evidence of willful failure by Railroad employees to maintain a proper lookout and no evidence that such lack of proper lookout was a proximate cause of the occurrence. In short, we find a complete failure of proof of any element of willful and wanton conduct. In our opinion, the trial court acted correctly in withdrawing the second count of the amended complaint from consideration by the jury.

It follows from the above analysis that the judgment against plaintiff in his individual action for personal injuries was correct and should be affirmed. It remains to consider the cause of action for wrongful death of the wife. The initial issue here is whether the cause of action for wrongful death would be barred because of the established contributory negligence of a beneficiary. In Nudd v. Matsoukas, 7 Ill.2d 608, the court cited decisions from other jurisdictions holding that the negligence of one of several beneficiaries is not a bar to a wrongful death action. The court further held that the negligence of a beneficiary who was also a defendant did not bar the action; but, rather, prevented his own right to recover for pecuniary loss, (7 Ill.2d 608 at 616. See also, Kinsch v. Di Vito Con struction Co., 54 Ill.App.2d 149, 156-57.) In the case at bar, it appears from the abstract and supplemental abstract filed by plaintiff’s counsel that plaintiff is the sole beneficiary of the cause of action for wrongful death.

The problem here is solved with finality by the statute which has been the law of Illinois since 1955 and which was applicable to this occurrence. (Ill. Rev. Stat. 1955, ch. 70, pars. 1,2. See also Ill. Rev. Stat. 196.1, ch. 70, par. 2.) The statute provides that it shall not be a defense that the wrongful death was caused in whole or in part by the contributory negligence of one or more of the beneficiaries on behalf of whom the action is brought. However, damages assessed are not to include compensation to any contributorily negligent beneficiary and such person “* * * shall not share in any amount recovered in such action.” As noted above, plaintiff appears to be the only surviving next of kin of his deceased wife. Consequently, since the statute prevents him from participation in any recovery, it would be a completely futile and useless act for us to reverse the judgment against plaintiff as administrator and to direct a retrial of the wrongful death action, even assuming that the errors urged by plaintiff require reversal of the judgment on this claim.

We note that sections 2(a), (b) and (c) of the applicable statute above cited, provide that where the deceased “* * * left no widow or next of kin entitled to recovery * * *” recovery may be had for hospital and medical services and for other costs and expenses. (Ill. Rev. Stat. 1961, ch. 70, par. 2.) However, this portion of the statute is limited to cases in which there is no next of kin surviving. Chidester v. Cagwin, 76 Ill.App.2d 477, 484.

We accordingly hold that in a situation such as appears from this record, where the contributory negligence of the single and only beneficiary of the action for wrongful death has been legally and properly established, that such contributory negligence operates to bar prosecution of the cause of action.

It follows necessarily that our determination for affirmance of the judgment in favor of Railroad and against plaintiff in his individual action requires affirmance of the judgment in favor of Railroad and against plaintiff as administrator. Hence, we need not consider claimed trial errors pertaining to the remaining special interrogatories or to the verdict in favor of Railroad and against plaintiff as administrator. Consequently the judgment on both verdicts in favor of Railroad is affirmed.

Judgment affirmed.

BJJRKE, P. J., and LYONS, J., concur,


author: Mr. PRESIDING JUSTICE BURKE

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Archie, Defendant-Appellant.
    (No. 55900;
    First District
    September 21, 1971.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, (James N. Gramenos, Assistant Public Defender of Cook County, of counsel,) for appellant.
    William J. Scott, Attorney General, of Springfield, and Edward V. Hanrahan, State’s Attorney, of Chicago, (James B. Zagel, Assistant Attorney General, and Robert A. Novelle and Arthur L. Belkind, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

Defendant was found guilty at a bench trial under two indictments charging him with the crime of forgery; he was sentenced to a term of one year to one year and one day in the penitentiary. On appeal defendant contends that the trial court committed error in denying his motion for release from custody under the 120-day statute (Ill. Rev. Stat. 1969, ch. 38, par. 103 — 5), and further that the instant prosecution is barred by a prior plea of guüty in a Federal prosecution for crimes allegedly arising out of the same transactions as do those charged in the instant indictments. Ill. Rev. Stat. 1969, ch. 38, par. 3 — 4(c).

It appears from the record that the defendant was arrested on June 16, 1969, by officers of the Harwood Heights (Illinois) Police Department. On the same day defendant was turned over to the Federal authorities, who had theretofore issued a warrant for defendant’s arrest in connection with the theft of or receipt of checks stolen from the United States mails, and was placed in the Federal tier of the Cook County Jail pending his trial on those charges. On August 7, 1969, defendant entered a plea of guüty to the Federal charges and was sentenced to a term of two years in the Federal penitentiary, to be followed by a period of five years probation. Defendant was thereupon transported to the Federal Penitentiary at Sandstone, Minnesota on August 16, 1969.

On September 15, 1969, the instant indictments were filed against the defendant, charging him with forgery of several checks on June 12 and June 16, 1969, and bail was set on each indictment. On September 19, 1969, a writ of habeas corpus ad prosequendum was issued by the lUinois authorities requesting the warden of the Sandstone, Minnesota Federal Penitentiary to present the defendant for trial in Cook County. Defendant was returned to Illinois from Minnesota on October 7, 1969, and on the foHowing day he appeared before the Circuit Court of Cook County, counsel was appointed, and defendant was arraigned.

On October 24, 1969, defendant filed a “Petition for Discharge” with the trial court, alleging that more than 120 days had elapsed since he had been taken into custody on June 16,1969, that he had not caused any delay in this matter, and that he was therefore entitled to discharge under the terms of section 103 — 5 of the Criminal Code. After a hearing, the Petition was denied, and defendant was thereafter tried and found guilty as charged in the indictments. (The sentence imposed by the trial court in the instant case was to run concurrently with that imposed by the Federal Court upon defendant’s plea of guilty to the charges of mail theft.)

The chronology of events related above reveals that the circumstances of the instant case are not such as to warrant the invocation of the 120-day rule. Defendant was initially arrested on June 16, 1969, by the local authorities, but the grounds of that arrest do not affirmatively appear of record. It does appear from the record, however, that at the time of the arrest a Federal warrant was in existence for the defendant’s arrest on mail theft charges, and that defendant was turned over by the local authorities to the Federal authorities that same day. Defendant remained in Federal custody from June 16th until his return to the State of Illinois from Minnesota on October 7, 1969, pursuant to the write of habeas corpus issued by the Illinois authorities. Defendant was thereafter tried for the charges of which he now stands convicted within 120 days of October 7,1969, the date he was taken into custody by the Illinois authorities for those crimes.

The case of People v. Clark, 104 Ill.App.2d 12, is factually in point. In the Clark case the defendant and others had traveled from Peoria to Rock Island where they visited a number of stores, cashing or attempting to cash several checks. The manager of one of the stores became suspicious and notified the local police who arrested the defendant and his companions shortly thereafter. The day following the arrest, the sheriff of Rock Island County turned the defendant over to the sheriff of Peoria County where the defendant was under indictment for a crime, the former sheriff requesting the latter sheriff to “hold” the defendant for trial in Rock Island County. Thereafter, while still in the custody of the Peoria authorities, defendant was indicted for the crime of forgery in Rock Island County. Defendant was later transferred to Rock Island County where he was tried and convicted of the crime of forgery, some 180 days after his initial arrest by the Rock Island authorities, but within 120 days of his transfer from Peoria County.

In analyzing the facts of, and adhering to the logic and rationale of the cases of People v. Jones, 33 Ill.2d 357, and People v. Stillioagon, 373 Ill.2d 211, the court in the Clark case held that the 120-day period commenced from the day defendant was transferred from Peoria County to the custody of the authorities in Rock Island. The court noted that, as in the instant case, defendant was not arrested by the Rock Island police on any specific charge, and also that, as in the instant case, no formal charges had been placed against him by the Rock Island authorities prior to his transfer to the custody of the Peoria authorities. The court in the Clark case further noted that it could not be inferred that the defendant’s arrest in Rock Island was for the forgery of which he was subsequently convicted in Rock Island, or that the Rock Island authorities’ request that the Peoria officials “hold” defendant for trial in Rock Island County related to the forgery, inasmuch as defendant was not indicted for the crime of forgery until four weeks after his arrest; such are also the circumstances of the instant case.

It cannot be said that the defendant in the instant case, at the time of his arrest, was in the custody of the local authorities for the charges of which he now stands convicted, so as to have commenced the running of the 120-day period from that date. Rather, the 120-day period commenced to run from the date defendant was returned to the State of Illinois from the Federal Penitentiary in Minnesota, October 7, 1969.

Defendant’s contention that the present prosecution is barred by his prior plea of guilty in the Federal prosecution for mail theft is without merit.

While it is true that the checks which constitute the basis of this prosecution were stolen from the United States mails, to which theft the defendant entered a plea of guilty in the Federal prosecution, there is not such a relationship between the mail theft and the check forgeries as would bar prosecution for the latter after a prosecution for the former. The Federal government could not have prosecuted the defendant for the forging of the checks, and conversely, the State of IUinois could not have prosecuted the defendant for the theft from the United States mails. The circumstances here do not fall within those contemplated by section 3 — 4(c) of the Criminal Code.

For these reasons the judgment is affirmed.

Judgment affirmed.

LYONS and GOLDBERG, JJ., concur.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    Bobby Gray, a minor, by his mother and next friend, Velma Gray Plaintiff-Appellant, v. Yellow Cab Company, Defendant-Appellee.
    (No. 54663;
    First District
    September 23, 1971, as modified on denial of rehearing.

      Patrick E. Mahoney, of Chicago, for appellant.
    Jesmer and Harris, of Chicago, (Julius Jesmer, Robert D. Jesmer and Richard C. Smilgoff, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court as modified on the denial of the petition for rehearing.

This is an appeal by plaintiff to reverse an order dismissing a complaint and denying a petition to vacate that order of dismissal. The issue is whether the court abused its discretion either in dismissing the cause of action or in refusing to vacate the order of dismissal which had been entered because of plaintiff’s failure to answer certain supplemental interrogatories. There is no dispute as to the facts.

On July 19, 1964, Velma Gray, as mother and next friend of Bobby Gray, filed a complaint for injuries sustained by Bobby, then 6 years of age, when he was struck by a cab operated by an agent of defendant Yellow Cab Company. In August, 1964, defendant filed an appearance and answer, and thereafter in October, 1964, filed certain interrogatories. Plaintiff answered these interrogatories in December, 1964, and subsequently in 1967 filed amended answers to the above interrogatories. On July 24,1969, defendant filed six supplemental interrogatories. Calling for such information as whether plaintiff had new witnesses or had received additional medical treatment since the filing of the previous answers, these supplemental interrogatories are used to bring discovery up to date prior to trial. Under the rules, plaintiff’s answers to the interrogatories were due within twenty-eight days, but they were not filed. On August 27, 1969, defendant moved to strike the complaint and dismiss the case for plaintiff’s failure to answer the supplemental interrogatories, and the court entered an order requiring plaintiff to answer the interrogatories within ten days. Plaintiff did not do so.

On September 10,1969, the case came onto the assignment call of cases subject to immediate assignment to trial. Representatives of both sides answered the call; plaintiff answered ready, while defendant advised the court that answers to the supplemental interrogatories had not been filed. The court held the case on the call until September 12, advising plaintiff to file the answers within two days. On September 12 the answers had not been filed, and the case was held until September 15. On that day plaintiff again answered ready for trial. When defendant advised the court that the answers to the supplemental interrogatories had not been filed, the court struck the complaint and dismissed the case with prejudice. On October 3,1969, plaintiff without support of affidavit moved to vacate the order of dismissal. This motion was denied.

On October 15, 1969, plaintiff again moved to vacate the order of dismissal. The motion was supported by affidavits made by Velma Gray and by plaintiffs counsel. The affidavit of Velma Gray recited that she was plaintiffs mother and was caring for her nine minor children. Just before school resumed, she was contacted by her lawyer who requested that she come to the office to sign answers to supplemental interrogatories. Each time that she made an appointment to go to the office, one of the children became ill and she was unable to do so. Over the Labor Day weekend and during the week following, two of her children were home ill and it was necessary that she remain home. Finally, after numerous telephone calls from her attorney, she was able to go to his office to sign the answers on September 16. The sworn answers to the supplemental interrogatories were attached to her affidavit. These answers revealed no change in the status of the suit. There were no new witnesses and Bobby Gray had received no additional medical treatment since the filing of the previous answers to interrogatories.

The affidavit of plaintiff’s counsel recited that the case had been referred to him for trial by an attorney who had entered government employ, and that he was a sole practitioner in the law. His secretary, who was without legal training, had answered ready for trial at the assignment call at his direction, but did not inform him that answers to interrogatories were due. The affidavit further recited that the assignment court rules were that motions would not be heard during the assignment call, but only at the 11:00 A.M. motion call after notice, and that this had not been done. The affidavit also stated that the answers to the supplemental interrogatories contained no new information and defendant was in no way prejudiced in its defense. It further recited that he had tendered the answers at a previous date, but they had been refused by defense counsel. The affidavit finally recited that the minor plaintiff had a good and meritorious cause of action. Defendant did not file an answer to the verified petition.

We agree with defendant that the court acted within its discretion in entering the order striking the complaint and dismissing the case on September 15, 1989. (Supreme Court Rule 219(c) (v); Ill. Rev. Stat. 1967 ch. 110A par. 218; See also Robertson v. Western Bearing Co. (1964), 50 Ill.App.2d 173, 200 N.E.2d 48.) Discovery rules must be obeyed, and one of the permitted sanctions for failure to comply with orders for discovery is dismissal of the cause of action. However under the facts and circumstances of this case, we believe that the corut on October 15, 1969 abused its discretion in refusing to vacate the order dismissing the complaint. Admittedly, plaintiff acted with due diligence in seeking to vacate the order, filing a motion within 18 days and a verified petition within 30 days. These sworn pleadings plainly showed a reasonable excuse for plaintiff’s failure to answer the supplemental interrogatories in time. The uncontradicted affidavits filed by plaintiff revealed that from the end of August, 1969, until September 16, 1969, Velma Gray was unable to sign the answers because of the illness of her children. The affidavits further disclosed that there had been no wilful refusal to comply with the order of the court. It should also be noted that the interrogatory answers attached to Velma Gray’s affidavit revealed no new information concerning the lawsuit. Thus defendant was not prejudiced by the short delay in receiving the answers. As this court stated in Booth v. Sutton (1968), 100 Ill.App.2d 410, 241 N.E.2d 488, at p. 415-16: “The dismissal of a party’s cause of action is drastic punishment and should not be invoked except in those cases where the actions of the party show a deliberate and contumacious disregard of the court’s authority.”

With the exception of one case, the cases cited by defendant in support of its contention that the court properly exercised its discretion in refusing to vacate its order of dismissal all involved Section 72 petitions wherein the reviewing courts found that petitioners had failed to exercise due diligence. In the case cited not involving a Section 72 petition, Brantley v. Delnor Hospital, Inc. (1970), 120 Ill.App.2d 185, 256 N.E.2d 369, this court found that refusal to vacate an order of dismissal entered at a general docket call after a year’s unexcused inactivity by plaintiff was not an abuse of discretion. Clearly the facts in that case are distinguishable from the instant case. Plaintiff here acted diligently, and set forth valid reasons for failure to answer the supplemental interrogatories.

The order of the Circuit Court is reversed, and the court is directed to allow plaintiff to file answers to supplemental interrogatories instanter, and further directed to place the cause on the trial call for immediate assignment.

Order reversed and cause remanded with directions.

DEMPSEY and McGLOON, JJ., concur.


author: Mr. PRESIDING JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edwin Diaz, et al., Defendants-Appellants.
    (No. 54697;
    First District
    September 28, 1971.

      Donald J. Stang, of Chicago, for appellants.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Arthur L. Belkind, of counsel,) for the People.
   Mr. PRESIDING JUSTICE LEIGHTON

delivered the opinion of the court:

After a non-jury trial, defendants Edwin Diaz and Joseph Luke were convicted of attempt theft of a cash register. Diaz was sentenced to serve six months. Luke was admitted to probation for one year. Urging four contentions, they appeal to this court.

First, defendants contend that on two occasions the trial judge refused to consider competent and material evidence. It is claimed that in one instance, during the testimony of a prosecution witness, the trial judge refused to consider finger and palm print evidence. We are satisfied, however, that, as was his prerogative, the trial judge, in the exercise of judicial discretion, limited the scope and extent of direct and cross-examination of a witness. Mac-Aire Aviation Corp. v. Corporate Air, Inc. (1970), 6 Conn. Cir. 238, 270 A.2d 849; People v. Jones, 343 Ill. 291, 175 N.E. 414; People v. Wilder, 119 Ill.App.2d 422, 256 N.E.2d 103.

It is claimed that the other instance occurred when Diaz testified and his lawyer asked him to describe his mental state at the time of the offense. In answer, Diaz said, “Like numb. Quiet sensation.” Then the assistant state’s attorney objected. The objection was sustained. No motion was made to strike the answer. It is well known that “[wjhere objection to testimony is sustained, but no motion to strike is made, the answer becomes part of the record.” (State v. Abbey (1970), 13 Ariz. App. 55, 474 P.2d 62. See People v. Carson, 341 Ill. 11, 173 N.E. 97; State v. Shimon (Iowa 1970), 182 N.W.2d 113; 1 Wigmore on Evidence (3d ed. 1940), § 18.) Therefore, since Diaz’s answer was not stricken, it was in the record for whatever materiality it possessed. It foUows that in neither occasion did the trial judge refuse to consider competent and material evidence.

Second, defendants contend that Luke was not proven guilty of the crime charged. We have examined the record and find there was evidence, including testimony of the two defendants, which if believed, proved Luke guilty beyond a reasonable doubt. See People v. Rossolille, 38 Ill.2d 316, 231 N.E.2d 585; People v. Bullock, 123 Ill.App2d 30, 259 N.E.2d 641; People v. Turner, 121 Ill.App.2d 205, 257 N.E.2d 186.

Third, defendants contend that improper evidence was received during the aggravation and mitigation hearing. Defendants argue that the State was allowed to prove a 1969 burglary charge reduced to theft for which Diaz, then a minor, was given one year supervision and ordered to pay $50 restitution. It is argued that supervision is not conviction; therefore, defendants insist, Diaz was only arrested. City People v. Jackson, 95 Ill.App.2d 193, 238 N.E.2d 196, defendants argue that Diaz was prejudiced when the trial judge, in aggravation of the offense, considered a charge in which he was only arrested and not convicted.

Supervision, as practiced in cases dealing with minors, is a judicial mechanism which is used after evidence shows a defendant guilty of the offense charged. Entry of the finding is delayed with the defendant’s consent and he is placed on supervision for a specific period of time. People v. Parr, (Ill.App.2d), 264 N.E.2d 850. Therefore, the 1969 case involved more than an arrest. In any event, the trial judge was entitled to the fullest information possible relevant to the sentence to be imposed. People v. O’Laughlin, 122 Ill.App.2d 218, 258 N.E.2d 154.

Fourth, defendants contend that they were denied a fair trial and deprived of due process of law when on three occasions, before all the evidence was presented to him, the trial judge pronounced them guilty. The first occasion occurred when defendants’ counsel completed cross-examination of the State’s second witness.

“Mr. Stang: That is all.
The Court: Finding of guilty.
Mr. Stang: We would like to put on our defense.
The Court: Alright. I will reserve my ruling.”

The second occasion was after the State rested its case and cross-examination of defendant Diaz was completed.

“Mr. Weinberg: That is all.
The Court: Finding of guilty.
Mr. Stang: I would like to call Mr. Luke.
The Court: Okay.”

The third occasion was after Luke testified.

“Mr. Stang: That is all.
The Court: Finding of guilty.
Mr. Stang: Defense rests.”

Defendants argue that these premature findings of guilty reveal an impatient, biased and prejudiced trial judge. In support of the contention that they were denied due process of law, they insist that their trial was an empty formality; that the judge found them guilty before hearing the evidence and without giving them or their counsel the opportunity to argue their cause. In reply, the State points out that the trial judge was willing to reserve his ruling, a willingness he expressed each time the premature action was called to his attention.

Our constitutional “[gjuaranty of due process of law requires that every man shall have the protection of his day in court and the benefit of the general law, a law which hears before it condemns, which proceeds not arbitrarily or capriciously but upon inquiry and renders judgment only after trial * * *.” (City of Chicago v. Cohn, 326 Ill. 372, 374, 158 N.E. 118.) A fair and impartial trial is a judicial process by which a court hears before it decides; by which it conducts a dispassionate inquiry and renders judgment only after receiving evidence. Pre-judgment is the antithesis of a fair trial. In a criminal case, our statutes and constitution contemplate that the trial include an opportunity for the defendant to argue his cause by counsel. Therefore, where a defendant is found guilty before he rests his case, without an opportunity given him or his counsel to argue his cause, and without waiver of the right to argue, he is denied a fair trial and deprived of due process guaranteed by our state and federal constitutions. Floyd v. State, Fla. 1956, 90 S.2d 105, 108.

The right to argue a cause in a criminal case is absolute, even though exercise of the right is subject to the discretionary power of the trial judge to control, within reasonable limits, how the right shall be enjoyed. (See People v. McMullen, 300 Ill. 383, 133 N.E. 328; White v. People, 90 Ill. 117, 32 Am. Rep. 12.) The disposition of a criminal case that has the effect of denying a defendant the right to argue his case by counsel infringes on an important constitutional right. People v. McMullen, supra; Commonwealth v. McNair (1954), 208 Pa. Super. 369, 222 A.2d 599; Annot, 38 A.L.R.2d 1396, 1404.

We are mindful that this case originates in a division of the circuit court where judges administer crowded dockets, decide many cases and work under difficult circumstances. However, despite these handicaps, our standards of judicial conduct require that a judge be “attentive, patient, impartial # (Supreme Court Rule 61(c) (5), Ill. Rev. Stat. 1971, ch. 110A, par. 61(c) (5).) And, it must never be forgotten that the People of the State and the defendants were both entitled to an unbiased and unprejudiced finder of the facts, be it judge or jury. (People v. Barr (1970), 64 Misc.2d 94, 313 N.Y.S.2d 155.) A defendant who waives trial by jury and submits his rights and liberty to a trial judge is entitled to the same fair, patient and impartial consideration he would be entitled to by a jury composed of fair, impartial, careful and considerate jurors. (People v. Trefonas, 9 Ill.2d 92, 100, N.E.2d 817.) Deeply rooted in our criminal jurisprudence, is the principle that one accused of crime has these rights in all the stages of the trial, no matter how strong may be the evident of his guilt; and if fundamental fairness is lacking in his trial, he is denied due process of law. People v. Finn, 17 Ill.2d 614, 162 N.E.2d 354.

These principles compel us to conclude that when defendants were found guilty by the trial judge three times before he had heard the evidence and given them the opportunity to argue their cause by counsel, they were denied a fair and impartial trial. It is insignificant that the judge was apparently willing to reserve his ruling. Compare People ex rel. Przyblinski v. Scott, 23 Ill.App.2d 167, 161 N.E.2d 705.) Therefore, the judgments are reversed and the causes are remanded for a new trial.

Reversed and remanded.

SCHWARTZ, J. and STAMOS, J., concur.