author: MR. JUSTICE DAVIS

text:
    Frank Hinduliak, Plaintiff-Appellee, v. Inn of the Four Lakes, Inc., an Illinois Corporation, Aubrey J. Greenberg, et al., Defendants-Appellants.
    Gen. No. 68-95.
    Second District.
    September 13,1968.

      Nadelhoffer, Hennessy and Dommermuth, of Naperville, for appellants.

      Irving S. Friedman and Stiller and Strauss, of Chicago, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is a proceeding wherein the plaintiff sought to enjoin the defendants from interfering with or molesting him in the operation of the restaurant and bar business of the defendant, Inn of the Four Lakes, Inc. On motion of the plaintiff and before the service of summons, the court entered an order for such injunction. Prior to the signing of the order, the court refused to consider or allow a petition for change of venue as requested by one of the defendants. This appeal, from the order for the issuance of injunction, followed.

The defendants responded to the plaintiff’s notice of motion for the issuance of temporary injunction and filed a special appearance “contesting the jurisdiction of the Court to hear the motion of the plaintiff before the summons is served on the defendants.”

The notice indicated that the motion would be heard by Judge William L. Guild. Due to the magnitude of the motion call, Judge Guild assigned this motion to Judge Philip F. Locke.

The defendant, Fisher, who was present with counsel, requested him to file a petition for change of venue from Judge Locke, based on prejudice. Counsel called his office for the appropriate forms and directed that they be delivered to him at the courthouse.

The attorney for the plaintiff and the attorney for the defendants, then entered Judge Locke’s courtroom. The plaintiff’s attorney told Judge Locke that he had served notice of hearing, before Judge Guild, on motion for temporary injunction; that “counsel who is not yet of record, has indicated that he wanted to object to the assignment to you”; and that “he is filing a special appearance for the purpose of contesting the jurisdiction.”

Counsel for the defendants informed the court that he did have a special appearance, but at the time of filing it he first wished leave to file his petition for change of venue which was being prepared in accordance with the statute. Counsel asked for a continuance of five minutes while he prepared the required petition and affidavit. The court refused this request and granted the defendants leave to file the special appearance only.

When the special appearance was filed, the court directed counsel for the defendants to proceed with it. He informed the court that he could not proceed with it since the law requires that a petition for change of venue be presented at the earliest possible moment; and that proceeding with the special appearance prior to filing a petition for change of venue, would, in his judgment, constitute a waiver of the right to a change of venue.

Counsel made repeated requests for a brief continuance to enable him to prepare proper application and affidavit for change of venue, all of which were cursorily refused. Thereupon, the defendant withdrew from the bench and waited in the hall for the forms for change of venue which were being sent to him; The court then asked the plaintiff to offer evidence on his motion. This was done and the court signed an order, written in longhand, for the issuance of temporary injunction without bond.

At the approximate time when the order for temporary injunction was being signed, counsel for the defendants presented to Judge Locke, an executed petition and affidavit for change of venue. Judge Locke refused to accept such petition. The petition was thereupon filed in the office of the clerk.

This appeal seeks the reversal of the order for the issuance of temporary injunction and the remandment of the cause with directions to grant the requested change of venue. The order for the issuance of an interlocutory injunction is an appealable order under Rule 307 of the Supreme Court (Ill Rev Stats c 110A, par 307).

The threshold question here presented is: whether, under the circumstances of this case, the court properly denied the defendant Fisher’s request for a change of venue because a written petition supported by affidavit was not presently prepared and ready for filing, where the request was timely made, and counsel for the defendants indicated that he would immediately draft and present such petition and affidavit. The main issue is the propriety and validity of the injunction order.

In considering the statute with reference to change of venue in civil cases, the court, in People v. Scott, 326 Ill 327,157 NE 247 (1927), at page 341, stated:

“The spirit of our laws demands that every case, whether a statutory proceeding or otherwise, shall be fairly and impartially tried, and no judge should think of presiding in a case in which his good faith in so doing is open to such serious question as that presented by this record. These provisions of the statute should receive a broad and liberal, rather than a technical and strict, construction, and should be construed so as not to defeat the right attempted to be attained therein.”

In the light of this pronouncement, the defendants should have been granted a reasonable time within which to file a petition for change of venue, and such petition should have been granted if it complied with the requirements of the Venue Act.

In the court below, counsel for the plaintiff echoed the pronouncements of the court with reference to the filing of a petition for change of venue on behalf of the defendants. On this appeal, the plaintiff asserts that the application for change of venue was properly denied in that only one of the four defendants alleged prejudice; and that section 9 of the Venue Act (Ill Rev Stats 1967, c 146, par 9) requires that where there are two or more defendants, an application for change of venue must be made by or with the consent of at least three-fourths of the defendants. The record indicates that all of the defendants were represented by the same counsel. Defendant Fisher was the only defendant who attended the hearing. Consequently, he signed the petition for change of venue and its supporting affidavit. Had objection then been made to the petition on this basis, the defendants would have been afforded an opportunity to amend their petition in this respect. See: Cory Corp. v. Fitzgerald, 403 Ill 409, 86 NE2d 363 (1949).

[3-5] It is for this reason that reviewing courts have held that an issue not presented to, or considered by the trial court, cannot be raised for the first time on review. Woman’s Athletic Club v. Hulman, 31 M2d 449, 454, 202 NE2d 528 (1964); Benson v. Isaacs, 22 Ill2d 606, 610, 177 NE2d 209 (1961); McMillen v. Rydbom, 56 Ill App2d 14, 28, 205 NE2d 813 (1965).

“The procedural aspects of due process and equal protection of the laws require that a person be given notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. . . .

“A fundamental requisite of procedural due process is that every man shall have the protection of his day in court and the benefit of an orderly proceeding according to the general law or established rules; and that the hearing shall not be arbitrary, but rather shall afford to him an opportunity to be heard in his defense and shall assure to him an inquiry on the issues of the case, wherein judgment is rendered only after trial. There must be an intrinsic fairness of procedure by which any judgment, order or decree is rendered. This is essential to the untainted administration of justice — the most cherished aspect of our judicial system.” Pettigrew v. National Accounts System, Inc., 67 Ill App2d 344, 350, 351, 213 NE2d 778 (1966).

Tested by these standards, the defendants were not afforded procedural due process. The procedure followed by the court was so lacking in principles basic to our system of justice that it offends the system. Pettigrew v. National Accounts System, Inc., supra.

[7] Where a petition for change of venue on the ground of prejudice is presented in due time and in proper form, the court is without power to render any further order except in connection with the order allowing the change of venue. In Agar Packing & Provision Corp. v. United Packinghouse Workers of America, 311 Ill App 502, 36 NE2d 750 (1941), at page 508, the court stated:

“The very filing of the petition for change of venue challenged the fairness of the chancellor to pass upon the motion for a temporary injunction. The courts hold that a change of venue is not a matter of practice, but a substantial right of a litigant. (Witherstine v. Snyder, 231 Ill App 251; Mockler v. David F. Thomas & Co., 273 Ill App 121.) To allow the chancellor to pass upon the motion for a temporary injunction after the petition for a change of venue had been presented, would nullify the intent and purpose of the venue act.

“The order of the circuit court granting the temporary injunction is reversed.”

In view of our conclusions, we do not reach the main issue of this appeal. Consequently, the order for the issuance of a temporary injunction is reversed and the cause is remanded to the Circuit Court of the 18th Judicial Circuit with directions to transfer the cause to another judge of the circuit for hearing on the petition for change of venue.

Reversed and remanded with directions.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE SMITH

license: Public Domain

text:
    Edward Don & Company, a Corporation, Irene K. Don, et al., Plaintiffs-Appellants, v. Pearl Don Ufland, et al., Defendants-Appellees.
    Gen. No. 50,007.
    First District.
    September 11,1968.
    Rehearing denied October 18,1968.

      Arvey, Hodes & Mantynband, of Chicago (Sidney R. Zatz, G. Gale Roberson, and J. Herzl Segal, of counsel), for appellants.
    Albert E. Jenner, Jr., Thomas P. Sullivan, Muller Davis, and Jack A. Cohon, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellees.
   MR. PRESIDING JUSTICE SMITH

delivered the opinion of the court.

The question is simple. Who are the officers of Edward Don & Company, a corporation, and who owns the corporate stock? The answer must be found in a thicket of testimonial and documentary diction, fiction and contradiction arising out of 97 trial days, a record of over 8,500 pages, and exhibits in excess of 2,000. On November 13, 1957, the plaintiffs met and elected directors and officers on the theory that they as individuals were the owners of a majority of the corporate stock. On the same day, the defendants elected directors and officers of the corporation on the theory that a family partnership owned 100% of the stock and that they constituted a majority of such partners. The plaintiffs promptly filed their complaint alleging that the defendants were unlawfully acting as officers and directors of the corporation and sought an injunction restraining the defendants from acting as such officers and directors and likewise restraining any interference with the plaintiffs as officers and directors. All collateral issues have been resolved and settled by agreement between the parties and an agreed order entered except as to the two issues here presented. The defendants answered th complaint and filed a counterclaim alleging that the purported issuance of stock to individuals was abortive, a sham and without any legal force whatsoever. The trial court so held and found that the family partnership was the owner of 100% of the stock of the plaintiff-corporation and that the stock purportedly issued to the individuals was null and void. A decree so finding was entered and the suit of the plaintiffs for an injunction was dismissed for want of equity. The plaintiffs appeal.

Edward Don, the husband of the plaintiff-Irene and the father of the plaintiffs, Richard and Daniel, founded the business in 1921. The defendants are brothers and a sister of Edward, who entered the business from time to time as they completed their education, beginning in 1921 through 1927. The business progressed from an individual proprietorship doing business as Edward Don & Company to a partnership and then to a corporation. The company manufactured nothing, operated as a restaurant supply house and grew from a $16,000-a-year business into a multimillion-dollar corporation. The record is clear that Edward, as the founder and the oldest member of the family, was the patriarch, the leader, the bellwether sheep, and it is fair to say the dominant and dominating individual in the business until his untimely death on February 11, 1956. It was he who made the decisions and directed the operation of the business. During this period, as between themselves, there is an atmosphere of hard work, honesty, integrity, diligence, mutual respect and confidence in each other. In this atmosphere and on this record, it is not even debatable but that each of the parties occupied a fiduciary relationship one with the other. Rizzo v. Rizzo, 3 Ill2d 291, 120 NE2d 546. The juridical marathon that we now review does not result from an intentional or malevolent breach of that fiduciary relationship by anyone. The controversy has its origin in a policy persistently practiced before and after Edward’s death of showing one picture of the family business organization in the privacy of the family and presenting an entirely different picture of the family organization to creditors, loaning agencies, advertisers, tax agencies and the public generally. Expediency was the watchword when any problem arose with a minimal if not an almost total lack of legal direction and guidance prior to Edward’s death and for awhile thereafter. This has in no sense retarded the growth and the development of the corporation nor has the policy thus pursued in any manner adversely affected any in the business world with whom the corporation dealt. It has, nevertheless, created an evidentiary and documentary swamp which we now explore for some solid ground for the corporate ownership.

From the entry of Julius into the business in 1921, it was conducted under the apparent sole proprietorship of Edward. His individual income tax returns were prepared and filed on that theory. From its inception, however, the brothers and sisters were on a salary, plus a profit-sharing plan, and the profits not required for individual personal living were ploughed back into the business as working capital. Annually the amount ploughed back into the business by each individual was represented by a treasury note signed by Edward and later by Edward and Dave. It is clear that all parties during this period acquiesced in and consented to this arrangement. Whether these treasury notes created a debtor-creditor relationship or a partnership between Edward and his brothers and sister is now more or less immaterial. In 1946, this practice brought Edward Don & Company into a head-on conflict with the wartime Wage and Stabilization Board because Edward’s personal income tax returns showed salary increases to his brothers and sister in violation of the Wage Stabilization Act.

A partnership agreement dated January 1, 1947, was formalized and submitted to the Wage and Stabilization Board to establish the fact that the business operation was a partnership. In reliance upon this contract, the Government settled the Wage Stabilization Act violation with a savings of some $75,000. In lieu of his individual returns previously filed, Edward filed partnership returns for the business for the years 1942-1945, showing the earnings of the business as an income of the partnership, the date of origin of the partnership as 1922, and the partners as Edward and the defendants. This partnership contract provided in substance the following:

1. Appointed Edward Don as sole general manager with authority to operate the ventures of the partnership under the apparent ownership of Edward Don personally, “whenever necessary, but for the benefit of all the partners,”

2. Provided for 3% interest to be paid on the capital accounts of the partners for the sums ploughed back into the partnership by each partner,

3. Provided that wherever the assets were assigned or transferred in whole or in part, the division between the partners would include not more than 48% of the total to Edward Don individually, and that the remaining should be distributed proportionately to the other partners, or their legal representatives pro rata,

4. That if Edward Don died or ceased to be connected with said business owning more than 48% of the business, his executors or administrators would transfer that amount over 48% to the remaining partners pro rata according to the respective percentage of the then remaining partners, or if such division was not practicable, then to the said partners jointly as tenants in common,

5. And that “the purpose of the above paragraph is to make impossible the dictatorship of any partner’s widow, or widower or any heirs and their attorneys.”

In their answer to the counterclaim, the plaintiffs charged that this agreement is not a true, correct or accurate picture of the agreement, but was prepared for the express purpose of justifying the payments heretofore made to some of the defendants and to neutralize the charge that the company was in violation of the Wage Stabilization Act. Expedient though it may have been, the cold fact remains in this record that this contract saved the business a substantial sum of money and whatever may have been the interests of the partners at this time, they all profited by it. They cannot enjoy its fruits and repudiate its terms. Either it was devised to knowingly mislead the Government or it was fairly, intentionally and honestly entered into. We conclude the latter and in so doing suggest that good conscience, simple equity and common honesty dictates this conclusion.

This experience triggered the thought that the business should be incorporated — a suggestion which had been made for some time by Goldfine, the company auditor, and the internal revenue agent who had been assigned to this account. This was accomplished notwithstanding the fact that Julius, Pearl and Sam testified they were not consulted about nor did they participate in the decision to incorporate, but learned about it some months later. Their statements are torpedoed by the fact that the corporate charter was issued by the State of Illinois on April 14, 1947, and their genuine signatures appear on the application for that charter.

On May 1, 1947, the operating assets of Edward Don & Company, a partnership, were transferred to the corporation and on that day, Stock Certificate 0 for 500,000 shares at $1 par value was issued to Edward Don & Company, a partnership. The record shows that this was a bona fide dollar for dollar transfer of assets from partnership to corporation. About this time, Edward discussed with his auditors the question of breaking up Certificate 0 and making stock distributions to the individual partners for estate planning purposes. Both sides agree that Rootberg, one of the auditors, advised against it at this time for the reason that the proposed distribution suggested by Edward was at a variance with the capital account and profit account owned by each party and thus the danger of tax consequences was present. Five years later, the same subject was brought up and under date of September 18, 1952, a memorandum concerning Federal gift tax and Federal estate tax was prepared and forwarded to all members of the partnership. By an assignment dated April 30, 1952, the partnership assigned Certificate 0 with all partners signing the transfer and the certification at the bottom that the transfer of the shares did not constitute a sale. In conformity with the specific terms of that assignment, Certificates 1-6 were then issued as follows:

Certificate 1

Edward Don and Irene Don 310.000 shares (62%)

Certificate 2

Julius K. Don and Charlotte Don 50.000 shares (10%)

Certificate 3

Sam Robert Don and Esther Don 50.000 shares (10%)

Certificate 4

Meyer Don and Eva Don 30.000 shares (6%)

Certificate 5

David Don and Nora Don 30.000 shares (6%)

Certificate 6

Pearl Don Schneiderman 30.000 shares (6%)

In 1954, the corporation was in need of cash. The two banks who were financing the corporation insisted that the corporation’s indebtedness to the partnership be eliminated. Accordingly, Stock Certificate 107 for 55,000 shares at $3 was issued to “Don Bros. Management and Investment Company.” That partnership paid $10,000 cash to the corporation and canceled notes of the corporation for an aggregate of $155,000. In December, 1955, this certificate was assigned to the same parties as had been Certificate 0 with the same percentage and with Edward receiving 34,100 shares, Julius 5,500, Sam 5,500, Meyer or Mike 3,300, David 3,300 and Pearl 3,300. Certificate 107 was actually completed after Edward’s death on February 11, 1956. That certificate and the breakup Certificates 108-113 were actually completed by using facsimile signatures of Edward and Pearl. We cannot fail to observe, however, that the percentages used were identical with the breakup of Certificate 0. Financial statements to the financing banks signed by the individual stockholders after Edward’s death reflected the stock ownership of the individuals to be as set forth above. At this point, it is easy to conclude that the plaintiffs were the majority stockholders and entitled to elect directors and officers of the corporation.

In this whole record, about the only transaction that stands unsullied and unspotted under the brightness of the noonday sun is the incorporation of Edward Don & Company and Certificates 0 and 107. Actually Certificate 107 is slightly tainted as it carries the authorized signatures of nobody. It was completed after Edward’s death by the auditors without authority by using a facsimile signature stamp of Edward and Pearl. Neither side questions the integrity of either of these two certificates. We therefore remove the discoloration of 107 by use of the equitable doctrine that that which should have been was done. Thus Certificates 0 and 107 were honest eertificates and the shares of stock represented by each were originally owned by the family partnership.

The integrity of these two certificates and the stock represented by them provides a solid foundation for the organization and the operation of the corporation to the date of Edward’s death. Irrespective of assignments, transfers and technical stock ownership, no one questions this result. At a meeting held in Irene Don’s apartment on February 17,1956, just six days after Edward’s death, Irene, Richard, Daniel, Julius, Sam, Dave, Pearl, and Eva, the wife of Mike who was then ill, appeared. This group selected Irene, Richard, and the five defendants as the Board of Directors. The Board met and chose Julius as chairman, Dave as president, Mike, Irene and Richard as vice-presidents, Pearl as secretary, and the business of the corporation was thereafter conducted with these officers in charge. They steered the corporate ship through the financial crisis immediately following Edward’s death. At this time, the atmosphere of hard work, honesty, integrity, diligence, mutual respect and confidence in each other which had permeated the family enterprise over the years was still present. The posture of all was then for the best interest of the corporation and its future. In the aftermath of the unexpected death of their leader and its possible impact upon the financial structure of the corporation, all present at the meeting voted, without any inhibition, for the welfare of the corporation— and, perhaps for the last time, unshackled by misunderstandings, misgivings, or personal individual financial motivation. The owners of a vast majority of all outstanding stock were present and voted for such officers. These officers in our judgment are still the officers of the corporation unless superseded by others in a lawful manner.

Under the pleadings in this case, we must now turn to the breakup of Certificates 0 and 107 to determine whether they conceal rather than reveal the proper equitable ownership of this corporation. This we may do. In Tilley v. Shippee, 12 Ill2d 616, 623, 147 NE2d 347, 352, the Supreme Court said:

. . the trial court, in the exercise of its equitable powers, can penetrate behind the screen of a corporate entity or other forms of business in order to apply the equitable maxim that equity will look through the forms to the substance of a transaction in order to ascertain the relationship of the parties. (Caprillo v. O’Hara, 400 Ill 518, 81 NE2d 513) . . .”

When Certificate 0 was issued, the auditors inquired as to whether it was going to be broken up into individual ownership. Edward suggested a division with the dollar-wise value comparable to the percentages in which Certificates 1-6 were actually issued. The auditor then stated that to do so would possibly involve tax consequences under the Internal Revenue Code of 1939 for the simple reason that the capital accounts and the profit accounts of the individuals were at a different ratio than the proposed stock issue ratio. The auditors suggested that a period of five years elapse before any stock distribution to the individuals. Edward acquiesced. It seems perfectly reasonable to conclude that Edward was thus fully aware that his proposed breakup of Certificate 0 was not in accordance with the several percentage interests of the parties in the partnership and would involve a taxable capital gain to him. Five years passed — Certificates 1-6 were then issued at Edward’s direction, but pursuant to an assignment signed by all. After his death, the auditors completed Certificates 107 and 108-113 with facsimile signatures in the same ratio as had been used in Certificates 1-6.

When the corporation was organized and the physical assets of the operating partnership were transferred to that corporation in exchange for Certificate 0 and later Certificate 107 was issued, it is clear that the equitable ownership of the stock represented by these certificates should have been in direct ratio to the amount that each partner then owned in the capital assets of the operating partnership on the day of the respective transfers of partnership property to the corporation. The stock became an asset of the partnership in lieu of and replaced other physical assets of the operating business. The ownership of the one should have been in the same ratio as the ownership of the other. Edward knew this; the auditors knew this, everybody knew this. The split up of these certificates did not conform to this pattern. When Certificates 1-6 were issued, Edward’s deficit balance in the partnership capital accounts was $143,457.-76. A like situation existed when Certificates 107 and 108-113 were issued after his death, except that Edward’s deficit balance had now increased to $202,211.34. All the others had a credit balance after payment for the stock issued in their respective names. One naturally wonders how this can be and volumes of the evidence on both sides in this case represent attempts to reconcile the irreconcilable and refute the irrefutable.

The plaintiffs invoke the doctrine of estoppel and the doctrine of unclean hands against the defendants. To invoke either or both of these doctrines on this record brings us dangerously close to the brink of a stalemate. Our only possible course, therefore, was to run this entire record through the wringer in the hope that what is left will enable us to reach a conscionable result. The defendants are charged with a conspiracy of silence in not making available to the plaintiffs the true facts of the corporate enterprise and thus they have dirty hands and are now estopped to make known the facts. It is clear that Goldfine and Rootberg both knew at the time of the incorporation that Certificates 1-6 did not reflect the respective interests shown by the records, that Edward also knew this, and that either Edward or Goldfine

persuaded the brothers and sister to “go along.” Shortly after Edward’s death, Goldfine testified that he and some of the defendants had a discussion in which they suggested that he sit down and explain to Irene, Richard, and Daniel the true situation. Goldfine testified that on an occasion or two, he tried to do that and “then I found that Irene did not seem to want to listen to me. I can’t tell you why.” Both David and Mike spoke directly to Richard and Irene about it and advised them that the stock record book did not show the truth of the matter nor the respective ownerships. This testimony is not denied by either Irene or Richard. Mike talked to Irene about it and when Irene started to cry, the conversation ended. Richard told David that they would stand on the stock record book and that was all that amounted to anything. There can be little doubt but that the plaintiffs were well aware of the fact that there was a dispute, that the matter ought to be investigated and that they deliberately closed their ears to any explanation. In addition all of the original partners signed the 1947 contract upon which the settlement with the Wage Stabilization Board was founded. Plaintiffs, now standing in the shoes of their ancestors, state in their pleadings that this purported partnership agreement is not a true writing of any agreement between the parties at that time, but was a “document prepared for the purpose of justifying certain payments theretofore made by the enterprises then operating as Edward Don & Company in order to overcome objections by the United States of America.” This contract, they assert, was in force only during the war years. They refer to agreements dated in November 1945, as representing the true agreement between the parties and that these superseded the 1947 agreements. It is difficult for us to see how a 1945 contract can supersede a contract dated January 21, 1947. The 1947 agreement certainly purports to be otherwise. Yet the plaintiffs seem perfectly willing to toss it aside as a sham and to indict their husband and father and all of the defendants with deliberate misrepresentations and, albeit, a legal fraud on the United States Government. A court of equity ought not condone such conduct. We don’t. Perhaps the strict application by us of either the doctrine of estoppel or the doctrine of unclean hands to all parties in this case would be to freeze us into total immobility. We elect not to be frozen. We prefer to wash their hands for them and act. We choose to conclude that the doctrine applies to neither side and that they are both bound by the 1947 contract.

It should again be noted that in the 1947 contract permission was given to Edward to show personal proprietorship “whenever necessary, but for the benefit of all the partners.” The defendants had followed his lead for more than 30 years — they had never been betrayed and could reasonably believe that they never would be. His statements to the auditors indicate he never intended it otherwise. Edward’s untimely death undoubtedly precluded just that. Be that as it may, this record thoroughly establishes that Certificates 1-6 were never intended to reflect the true and precise ownership of the corporate assets. On the day prior to Edward’s death, Goldfine was preparing the partnership return showing the ownership of the stock in the partnership at the close of the year 1955. At this time, Certificates 91-114 were not signed and some of them had not even been typed. Goldfine, Rootberg and Harold Levison (all internal auditors of the corporation) obtained a rubber facsimile of Edward’s and Pearl’s signatures as president and secretary, respectively, and one or the other of them signed all of these certificates with such facsimile rubber stamp. At this time, they also made entries in the partnership general journal and general ledger purporting to remove the stock of Edward Don & Company as a partnership investment and reducing the partnership capital accounts by $665,000. They then conformed the 1955 tax return to the records as thus changed showing the stock already issued to individuals. Thus came into being a new picture as to records and tax returns. The reason for this is best explained by Goldfine’s testimony as abstracted. “[He] Edward told the banks that the stock of the company was in the hands of the partners. However, the partnership books did not reveal that, and when he died we had a session, almost I think on the day he died, with Phil Rootberg, Harold Levison, and we thought it would be the proper thing to make these entries on the books in order to keep his word with the bank. The man was gone, and we deemed it advisable at that time to do so and we proceeded to do it.”

From 1952 to 1956, they didn’t make the entries — a failure said by the plaintiffs to be inadvertence on the part of the auditors. This is pure fiction. The auditors knew Edward was representing to the banks that he owned more than 50% of the stock, that the stock certificates were all in the stock record book and not in the physical custody of purported stockholders, and that they had been told not to deliver the stock. Because of Edward’s death, the credit status of the company was dubious and the auditors no doubt honestly recognized the danger of the banks refusing credit if the true facts were now known. They told David of their plans and they “thought it was good business and good conduct” and “the wise thing to do.” David merely said, “if you think it is the right thing to do, do it.” David signed the 1955 partnership return without any discussion or examination nor was he then aware that it did not reflect the stock as a partnership asset as the prior returns had. Goldfine testified that it was customary for the partners to accept and sign a document he prepared without question. He testified “they just signed if I told them to sign.” The foundation for new bank financing following Edward’s death was under way. Financial statements of the individuals on a bank form were prepared and showed individual ownership of the stock. Julius and Sam protested that the reflection of their ownership of the stock was incorrect. Goldfine testified that he told them that could be straightened out later — that we had to have these individual statements on account of the credit relationship with the banks and they went ahead and signed it because “they had a lot of faith in me.” The same thing happened so far as Dave was concerned. The financial statements signed by Meyer and Pearl did not even contain the page showing the ownership of the stock.

At the suggestion of Irene’s attorney, an indemnity agreement was prepared by Levison which recited the opening sentence: “The parties hereto are the principal stockholders in Edward Don & Company, an Illinois Corporation, that the interests of the parties in the corporation were not equal and that the loss if any in guaranteeing the bank loan including interest shall be borne by the parties hereto in ‘direct proportion to their respective interest in the said Edward Don & Company, an Illinois Corporation.’ ” Sam protested the agreement and stated that he had more stock in the corporation. Levison pointed out to him however that the indemnity agreement did not set out what amount of stock was in his or anybody else’s name. There is little or nothing inconsistent in signing this agreement as all were members of the partnership and either through it or individually in fact were the shareholders of the corporation. The bank insisted upon a copy of the partnership agreement — none could be found. (The 1947 contract showed up later.) Accordingly, in 1956, Levison drafted a new partnership agreement. The defendants testified that this contract was intended to apply only to partnership assets other than stock in Edward Don & Company, i. e., to the nonoperating assets of the investment company. The plaintiffs, of course, can hardly avoid this conclusion for the reason that the corporation was an operating company and if at the time of the contract the stock in that company was owned by individuals, as they claim, it obviously could not be an asset of the partnership investment company. If the stock was individually owned as plaintiffs claim, there was no occasion for a partnership contract that related to anything except noncorporate assets. In any event, this document, like so much in this record, was an expediency utilized to induce the banks to extend credit and without which the whole boat was in danger of catastrophic floundering. So far as individual stock ownership is concerned, it is evidence of little or nothing except that the signatories to it, in the aggregate, owned all the controlling stock in the corporation either through the partnership or individually in unspecified proportions. It preserved the integrity of Edward with the banks, presented a nice “showcase” to the bank and accomplished its purpose for the benefit of all. The loans were made and in a few months paid, and the ship, as well as the shipmates, were all back safe in quiet financial waters again. This conduct was, we think, neither unclean hands nor estoppel as to any of the parties, but the practical exercise of the customary family practice of practical expediency.

Prior to and after the incorporation of the company, the capital investment of each of the partners was reflected by a treasury note signed on behalf of the partnership. Annually these notes were adjusted to reflect the withdrawals of the various partners, their share of the profits, bonuses, etc. The old notes were marked paid and new notes executed. In 1952, each note showed a deduction of each partner’s account for the purchase of the corporate stock. Edward’s note did not show a sufficient capital balance for the purchase of the 310,000 shares and instead indicated a deficit of $143,457.76. The others had a credit rather than a debit balance and this suggests that the 62% of the stock represented by Certificate 1 was considerably in excess precentagewise of Edward’s then interest in the business. It is further noted that in the partnership income tax return for the year 1952, after the issuance of Certificates 1-6, Edward signed the partnership return showing that at the end of the year that partnership still had a $665,000 investment in the corporation. The same condition is reflected for 1953 and 1954 with these two latter returns signed by David Don. During this same period, Edward was representing to the banks that he was the owner of in excess of 50% of the corporate stock, whereas the three partnership returns reflect that his interest, together with that of his sons, Richard and Daniel, was less than 40%. The explanation for these contradictory positions follows.

When David, Julius, Sam, and Meyer saw the proposed percentage in the breakdown of Certificate 0 into 1-6 and the deductions on their treasury notes, they asked Goldfine about it and stated that the stock certificates did not represent correctly their interests in the corporation. Goldfine testified that he spoke to Edward about it and was told not to worry about it “when the time will come, I will straighten it out, I’ve always treated the boys right.” Goldfine also testified that he had conversations with Edward with reference to removing the stock certificates from the stock record book and distributing them. Goldfine testified “he told me it was none of my business, to go about my business, and take care of the auditing and he would take care of the boys.” All of the stock certificates were still in the stock record book at the time of Edward’s death, and it is so stipulated between the parties. David, Julius, Sam, and Meyer all talked with Edward about the stock certificates and told him it did not reflect their correct interests in the business and neither did the notes. Edward told them in substance that he was trying to work out a deal for a public offering of the stock, or a merger with some other company, and it was necessary for him to show that he had complete control of the business. He also told them that in order to borrow money at the bank, it was necessary to show the banks that he had a controlling interest in the business so that if a default was made, it could be cared for without asking anybody else about it. He further told Mike not to worry about it when Mike had difficulties with Richard and a fight ensued. Mike expressed the feeling that it would be difficult to get along with Richard, and Edward then told him that the stock certificates did not represent the correct ownership in the business and not to worry about Richard for the simple reason that his family would never have over 48% of the business and never have control (note that the 48% is referred to in the 1947 contract). He represented that in any deals he would make for a public offering or for the sale of the business or for a merger of the business, it was necessary that he have apparent authority to consummate that deal without consulting anyone. The plaintiffs urge that these are statements of a dead man and should be scrutinized with care. The status of this testimony has been rather aptly stated as follows:

“. . . This evidence, which uncorroborated might have been regarded as the lifeless bones of an unarticulated skeleton, was given flesh and contour by the other facts in evidence, undisputed and unimpeached.” In re Connors’ Estate, 53 Cal App2d 484, 128 P2d 200, 203.

The partnership investment records show the ownership of this stock in the partnership and had done so from 1947. The partnership income tax returns likewise reflected this condition and continued to do so up to and after his death. Both the investment account and the partnership income tax reports tend to corroborate his statements to his brothers and to Goldfine and the Chancellor was correct in so concluding.

Having determined that Certificates 0 and 107 furnish a solid foundation for the election of officers immediately following Edward’s death, we turn now to the question as to if, when and how those officers and directors were ever superseded. Fundamental is the fact that stock certificates are muniments of ownership in the property of a corporation and documentary vehicles for the transfer of such ownership. The break down of Certificate 107 by the auditors through the use of facsimile signatures is without authority, without justification, with knowledge that the percentage amounts were in dispute and carry on its face the bar sinister. They are a nullity. We conclude therefore that the 55,000 shares represented by Certificate 107 an honest certificate, are owned by the partnership and not by individuals and are controlled by the 1947 contract.

The original partnership was terminated by operation of law with Edward’s death. A new contract creating a partnership between his heirs and the surviving partners was prepared and executed effective February 11, 1956. The record establishes that this contract did not in any way apply to operating assets, but rather to nonoperating assets and “the business of managing businesses and making investments.” The two 1945 contracts to which reference has been made segregated the operating assets from the investment assets of the family enterprises. The testimony clearly establishes that the 1956 contract was not intended to apply to the operating assets, and indeed this position is clearly consistent with the position of the plaintiffs throughout that the stock in the corporation was individually owned. We have already indicated that the 1947 contract superseded the 1945 contract as to operating assets. It therefore follows that the 55,000 shares of stock are controlled by the 1947 contract and under it at no time could Edward or his estates or assignees ever have more than 48% of the operating business. In this state of the record, the plaintiffs fall far short of establishing that their rump election of officers was conducted with a majority of the stock represented and it is and it was therefore a nullity and accomplished nothing.

We think a like result obtains so far as the defendants are concerned. Acting on behalf of the 1947 partnership, they voted the 55,000 shares of stock. They undertook to vote the 500,000 shares of stock represented by Certificate 0. We do not agree with the trial court that Certificates 1-6 were a sham or a complete nullity. Rather they were certificates issued for a specific purpose to meet a specific situation and are valid to the extent that they effectively accomplished that purpose. All parties joined in transferring Certificate 0 into the six certificates numbered 1-6. They are in our judgment bound by this action. They made innumerable subsequent transfers of their respective interests and exercised dominion and control over the stock represented by such certificates. None of the certificates in question were ever delivered to the respective transferees, none were ever removed from the stock record book and there is no evidence that the respective transferees ever actually knew that they had such ownership prior to Edward’s death. The keeping of all such certificates in this and other enterprises with the business records was a consistent practice of the several enterprises and unquestioned by the several owners. To permit the surviving partners to completely repudiate these transactions and vote the stock in totality as partnership property is to judicially create a whirlwind of legal problems, tax problems, and consequences wholly unwarranted by this record. We therefore hold that the rump election of the defendants was likewise a nullity, elected no officers and/or directors and did not supersede the election held in February, 1956.

Frey v. Wubbena, 26 Ill2d 62, 185 NE2d 850, 855, dealt with the creation of joint tenancies in stock certificates and other interests. Certificates 1-6 created joint tenancies. In that case, the Supreme Court said at page 70:

“We do not mean to imply that where joint ownership is set up in conformity with the statutory provisions, a court of equity is thereby foreclosed from looking behind the form of the transaction and determining questions of real and beneficial interest as between the parties. . . .”

It was there held that the registration of stock ownership upon the books of the corporation in proper statutory language is sufficient to vest legal title subject nevertheless to divestments if the circumstances surrounding the transaction warrant it. In interpreting this holding, the court observed in Lytle v. Northern Trust Co., 39 Ill App 2d 372, 377, 188 NE2d 743, 745, that the reference to divestment relates “. . . to the preservation of those forms of equitable relief afforded in cases involving a confidential relationship, fraud, undue influence, the investiture of nominal title for the purpose of convenience, and situations of like character.” (Emphasis supplied.) We have already observed that we have here present a confidential relationship. The in-depth and exhaustive analysis of the circumstances surrounding these certificates contained in the Chancellor’s opinion clearly establishes that they were certificates of convenience and thus we may look behind the veil to ascertain whether or not these certificates represent the true ownership of the corporate property and in what proportions. For reasons previously stated, we have legitimated Certificate 107 but treat its progeny as stillborn.

The plaintiffs rely basically upon the stock registration book of the corporation and this is admittedly prima facie evidence of ownership, but is not conclusive. All of the partners joined in the transfer of Certificate 0 into Certificates 1-6 and the named transferees were designated by them. The corporation had been in operation for five years. Thirty percent of its profit was at all times retained in the corporation and even today remains undistributed. That thirty percent should follow the actual ownership of the corporate stock. The plaintiffs at no time before Edward’s death participated in any partnership meetings and have never then regarded themselves as having any interest in the partnership assets which were transferred to the corporation. If Certificates 1-6 represented the true interests in the corporation, there would be little point in this litigation. Edward knew that they didn’t — Goldfine knew that they didn’t— Rootberg also knew that they didn’t — those who are now the surviving partners were protesting and plaintiffs refused to listen to or accept any explanation. The fact that as certificates of convenience or necessity they served those purposes does not mean that they reflected at any time the proper ownership of the corporate assets in the individuals. With the exception of Edward, all of the owners of these certificates were charged on the books of the partnership with their dollar value. The transfer of the stock to Edward transposed him from a creditor to a debtor of the partnership — and the only one. We see little foundation for the claim that Certificates 1-6 legally or equitably accurately reflect the true ownership of the individual interest in the corporation assets. The Chancellor elected to treat them and their progeny as stillborn. We do not deem this necessary. We prefer to regard them as valid to the extent that they knowingly transferred actual interest in the corporate assets.

The income tax returns, the journal and the general ledger investment records of Don Bros. Management and Investment Company, a partnership, reflected the ownership of the corporate stock in the partnership. Sub-ledgers, work sheets and so called “area of agreement” document reflected the individual status of the partners. Using several methods of computations, the Chancellor concluded “thus, in short review, we find by one method of calculation the probable interest of Edward at the time of the split was 34.74% — or over a period of years — using the same hypothesis, that it could be as high as 39.09% ; that by statutory method, it would be as low as %th or 16.06% and by the agreement of 1947, limited in all events to 48%.” Edward selected arbitrarily the figure of 62% and directed the issuance of Certificates 1-6 accordingly. By joining in Certificates 1-6, all of the partners acquiesced in the issuance of the stock in this fashion. We have previously discussed the purposes. These facts do not militate against the proposition that all of these partners occupied a fiduciary relationship. In Rizzo v. Rizzo, 3 Ill2d 291, 302,120 NE2d 546, 552, the court stated:

“. . . even though the deed was absolute on its face, it is clear from the understanding of the parties, and from the nature of Michael Rizzo’s fiduciary obligation, that this property should be deemed to be held for the benefit of the firm, and was properly found to be partnership property.”

No matter what Certificates 1-6 may show on their face, it is thus abundantly clear that the individuals were effectively removing this stock from the partnership as an operating operation for the many reasons we have already discussed. Divided in 1952, it was controlled by the partnership contract of 1947. Each certificate holder by virtue of his or her interest in the partnership was the owner of the property for the benefit of all. To the extent therefore that each certificate represented the actual percentagewise share of each of the partners in the partnership, it was a valid conveyance and likewise the progeny of each certificate is valid to that extent and to that extent only. The Chancellor could not and neither can we from the records before us determine with precision the proper individual interest in the corporation and an accounting for that purpose is necessarily required in accordance with sound general accounting principles. When so determined, then the 30% reserved, together with the earnings of the corporation, must follow a like distribution wholly separate and distinct from bonuses or salaries properly paid during the course of the corporation operation. To hold otherwise and treat this stock as still owned by the partnership is to invite a rerun of this litigation to dissolve the partnership, nullify the purposes in which all parties acquiesced and particiated and destroy the interest, if any, that transferees from the several beneficial owners now have without such owners being parties to this litigation. The 1947 contracts provided specifically what was to be done with the operating assets of the supply company upon the death of Edward. Nothing remains to be done except to carry out the terms of that contract as stated therein. To do so requires only a determination of the percentage interest of the respective partners and to conform and deliver the certificates of stock to them properly reflecting such interest and to recognize transfers by them up to but not exceeding such actual interest.

One other matter deserves comment. Plaintiffs filed a motion for new trial before another judge for the reason that the court consulted two accountants separately about general principles of accounting prior to his final opinion and this, they say, is a denial of due process. The record contains a long explanation by the court, the examination of the two accountants by defendants, the refusal of plaintiffs to examine them and the failure of this record to show that either side was prejudiced by the action. The questions asked were hypothetical, the name or parties to the case were not disclosed and no factual issues were discussed. There is nothing which suggests any improper motives, any influence on the decision and certainly nothing that has affected this court’s determination. Plaintiffs were not denied due process. They were offered the cup and refused to drink. They can’t complain of being thirsty. As we view it, the result in this case is wholly unaffected by principles of accounting. On remand generally accepted principles of accounting will determine the interests of the parties in the capital stock. The plaintiffs fall far short of showing any prejudice to them as a result of these consultations nor were they denied the opportunity to show it. Under these circumstances, plaintiffs have “failed to establish prejudicial error.” People v. Wilson, 24 Ill2d 598, 602, 182 NE2d 683, 685.

Accordingly, this cause is reversed and remanded to the trial court with directions to enter a decree providing in substance as follows:

I. That Certificate 0 and Certificate 107 are bona fide certificates representing the partnership assets transferred to the corporation at the time of their respective issuance and that from the date of each transfer, such property became the property of and subject to the control of the corporation;

II. That such transfers operated in law as a sale, transfer or assignment for a consideration suitable and agreeable to all the partners within the meaning of the 1947 contract and that the breakup certificate as required by said contract should “include not more than 48% of the total to Edward Don individually, and the remaining shall be distributed proportionately to the other partners hereto, or their legal representatives pro rata”;

HE. That Edward Don did remain connected with “said business or ventures or any of them” until the time of his death on February 11, 1956, and thus by its terms, the 1947 contract controls;

IV. That the officers and directors elected at the meeting on February 17, 1956, were duly and properly elected and still are the officers of said corporation;

V. That the percentage interest of each of the partners in the physical assets transferred to the corporation in consideration of Certificate 0 and Certificate 107 be determined as of the time of the respective transfers, either (a) by the unanimous agreement of the directors or (b) in default thereof by an auditor employed by them and directed to determine such percentage interest in accordance with accepted accounting practices, or (c) if an auditor or auditors cannot be agreed upon that the court designate an auditor or auditors at the cost of the corporation to make such percentagewise determinations ;

VI. That Certificate 0 and Certificate 107 be surrendered and in lieu thereof new certificates be issued to the partners properly reflecting their respective percentagewise ownership of the corporate assets;

VII. That subsequent derivative stock transfers having as their original ancestor Certificate 0 be recognized and validated by the corporation to the extent that the totality of such transfers by any transferor does not exceed his interest in the corporation as finally determined and to the extent that such transfer was authorized by the original partner-donor;

VIIL That previous interlocutory or permanent order designed to maintain the status quo and to effectuate the continued effective operation of the corporation and in particular the order of July 2,1964, relating to the agreement of the parties as to their conduct under the decree pending appeal in lieu of the supersedeas be reaffirmed; and

IX. That the decree shall expressly retain jurisdiction of this cause for the purpose of giving direction to the officers as herein determined or to enforce such decree if necessary or appropriate.

Reversed and remanded with directions.

TRAPP and CRAVEN, JJ., concur.


author: MR. JUSTICE SULLIVAN

text:
    Jamee H. Barrett, Plaintiff-Appellant, v. Edward Fritz, Defendant-Appellee.
    Gen. No. 50,803.
    First District, Third Division.
    July 3,1968.
    Edward J. Bradley, of Chicago, for appellant.
    Dowd, Dowd and Dowd, of Chicago (Joseph V. Dowd and Philip J. McGuire, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This suit arose out of an injury sustained by plaintiff, Jamee H. Barrett, on a golf course. She brought suit against defendant, Edward Fritz, to recover damages incurred as a result of that injury. After a trial the jury returned a verdict in favor of defendant and plaintiff appealed.

Plaintiff contends on appeal that the court erred in giving an instruction on assumption of risk under the facts of this case; that, even if such rule of law were applicable, the instruction given on the affirmative defense was erroneous, and that the court erred in striking a paragraph of plaintiff’s complaint which charged defendant with negligently failing to keep a good and sufficient lookout.

Plaintiff testified that on September 3, 1956, she was playing golf at Edgewater Golf Course in Chicago in a foursome with her husband and another couple in the finals of the husband and wife championship. She and her husband had been members of the club for seven years prior to the day in question. The course is very tight and relatively short with narrow fairways. If a golfer sliced or hooked a ball, in all likelihood it would go into the next fairway. The day of the occurrence was a clear day with a rather strong wind.

Plaintiff and her group finished the 17th hole, left the green and walked to the 18th tee. The 18th tee is about 40 yards from the 17th green and 160 yards from the 17th tee. Before leaving the 17th green plaintiff looked back and saw no one at the 17th tee. At the 18th tee plaintiff walked to the ball washer (about 10 feet from the tee) while another member of her group teed off.

Meanwhile defendant Fritz and two other men, Quinlan and O’Keefe, arrived at the 17th tee and defendant teed off first. The 17th hole is about 135 yards long. He saw the foursome at the 18th tee. He selected a number four wood club and hit the ball which went directly toward the 17th green. He lost sight of it while it was rising. The next he saw of the ball it was going into the trees near the 18th tee. Defendant’s handicap at the time of the incident was 36, which indicates that he was not a good golfer.

One of his companions was able to follow the ball and saw it go quite high, veer left and go into a tree. At no time did defendant or any one of his companions yell “fore.”

Plaintiff was struck on the head by the ball and knocked unconscious. She suffered brain injury and thereafter underwent major operations.

Plaintiff first contends that the court erred in giving an instruction on assumption of risk under the facts of this case. A study of Illinois law shows that the courts of this state, with few exceptions, have limited the application of the doctrine of assumption of risk to master-servant cases and cases involving a contractual relationship between plaintiff and defendant. The Illinois Supreme Court in Pennsylvania Co. v. Backes, 133 Ill 255, 24 NE 563, refused to apply the doctrine to a negligence action and said on page 262:

“But in this case the relation of master and servant did not exist between the plaintiff and the railroad company. The former was a stranger to the latter. He was not employed by the company, and had nothing to do with it or its employees. Appellee was a laborer in the employ of the Star and Crescent Flour Mills Company. His business was to assist in moving cars on the scale platform and shovel wheat from them into the shed of the mill company, and we are inclined to hold that the exemption of the master, growing out of the relation of master and servant, and the servant’s contract to assume ordinary risks incident to the business, does not apply.”

The court adhered to that position in later cases such as Conrad v. Springfield Consol. Ry. Co., 240 Ill 12, 88 NE 180, wherein it stated at page 17:

“Appellant’s contention that appellee must be held, as a matter of law, to have assumed the risk cannot be sustained, since the doctrine of the assumption of risk is only applicable to cases arising between master and servant. Shoninger Co. v. Mann, 219 Ill 242.”

The Appellate Court cases are similar in language and limitation. In Davis v. Springfield Lodge No. 158, 24 Ill App2d 102, 164 NE2d 243, the court refused to allow the defense of assumption of risk where plaintiff, a longtime member of the defendant lodge, was injured on the lodge premises. The court held that the “doctrine of assumption of risk is applicable only in cases arising between master and servant.”

The courts have sometimes spoken of the doctrine in terms of the contractual relation between the parties but generally have not gone so far as to extend the application to instances wherein no such relation exists. See Mueller v. Phelps, 252 Ill 630, 97 NE 228; Walsh v. Moore, 244 Ill App 458, and Reed v. Zellers, 273 Ill App 18.

As defendant points out, there have been some cases in which the doctrine was applied without use of the terms of master-servant or contractual relationship of the parties. The court in Murphy v. White City Amusement Co., 242 Ill App 56, allowed the defense but did so because the plaintiff had knowingly contracted for a dangerous ride. Therefore, there was a contractual relationship in that case, although the court did not specifically refer to that as the reason for allowing application of the doctrine of assumption of risk. In Campion v. Chicago Landscape Co., 295 Ill App 225, 14 NE2d 879, the plaintiff sought recovery from the operator of a public fee golf course in Chicago. The court discussed the applicability of the doctrine and set forth pertinent language from many cases. The court evidently felt that the defense of assumption of risk should be available to a defendant in a golf case, but the language so indicating was in fact obiter dictum since the court first found that “plaintiff failed to show that defendant was guilty of any negligence proximately causing the injury to plaintiff, . . . .” The judgment in favor of plaintiff was therefore reversed. Leave to appeal was denied by the Supreme Court. However, that does not necessarily indicate agreement by the Supreme Court with the reasoning and language of the Appellate Court.

The Appellate Court in Hensley v. Hensley, 62 Ill App2d 252, 210 NE2d 568, refused application of the doctrine in a negligence action. The court said on page 259:

“In support of his position that the doctrine has been applied in cases not involving the master servant relationship, he cites Brownback v. Thomas, 101 Ill App 81, and Campion v. Chicago Landscape Co., 295 Ill App 225, 14 NE2d 879. Assuming that these cases support defendant’s position, neither opinion cites authority sufficiently persuasive to cause this court to disregard the clear pronouncement of our Supreme Court. However, even if we did agree with him, we do not believe that it is the function of an appellate court to overrule or attempt to overrule or criticize the decisions of the highest judicial tribunal of our state or nation. We hold that the defense of the assumption of the risk is not available to the defendant in this case and therefore the trial court’s refusal to instruct on this defense was not error.”

See also Maytnier v. Rush and Chicago Nat. League Ball Club, Inc., 80 Ill App2d 336, 225 NE2d 83.

Plaintiff and defendant have cited numerous cases from other jurisdictions dealing with assumption of risk generally and with regard to golf cases. While a study of those cases presents clear arguments for and against the application of the doctrine, we feel, as did the court in Hensley, supra, that under the Illinois case law, we must hold that the giving of the instruction of assumption of risk in this case was error.

The doctrine of assumption of risk, if applicable to an injury sustained by a golfer, would presuppose that the plaintiff was participating in activities which exposed him or her to the risk of the injury complained of; that the dangers involved were the dangers which ordinarily accompany the activities contemplated in participating in the game of golf; that the plaintiff knew, or by the exercise of ordinary care should have known, this danger existed and realized the possibility of injury from playing the game of golf on the day in question, and that some one or more of these dangers were the cause of plaintiff’s injuries. We feel that such a defense is a sound one in an action such as this involving an injury to a golfer. However, because of the decisions of our Supreme Court, the most recent of which was handed down several decades ago, to the effect that this defense may be employed only in actions between master and servant, and in contractual relationships, we are in no position to sanction its use in this case. We do believe that the restricted application of this defense should be reviewed.

The above holding does not change our position as expressed in Sweeney v. Matthews, 94 Ill App2d 6, 236 NE2d 439. In that case we held that the doctrine of assumption of risk could not logically be prohibited in strict tort liability actions for the reasons set forth therein.

Plaintiff further contends that the instruction given on the affirmative defense of assumption of risk was erroneous in that it did not include all the essential elements necessary to prove the defense. In view of our holding that assumption of risk could not properly be invoked as a defense, the question of the sufficiency of the instruction on assumption of risk need not be discussed.

Plaintiff finally contends that the court erred in striking the paragraph of plaintiff’s complaint which charged defendant with negligently failing to keep a good and sufficient lookout. The refusal of a court to instruct the jury upon the theory of a party is reversible error when and only when the party introduced evidence in support of that theory. (Blachek v. City Ice & Fuel Co., 311 Ill App 1, 35 NE2d 416.) It is argued that there was ample evidence in the record to support the allegation. The record shows that defendant hit his ball into the air, lost sight of it and did not see it again until it entered the trees where plaintiff was standing. One of defendant’s companions saw the ball the entire time it was in the air. It is clear that defendant sought to keep his ball in view although, for a time, he lost sight of it. Losing sight of the ball differs considerably from failure to keep a lookout for it. After an examination of the instructions we conclude that the jury was instructed adequately based upon the evidence introduced in the case. The paragraph was properly stricken for lack of any evidence in support thereof in the record.

The judgment in favor of defendant is reversed and the cause is remanded for a new trial.

Reversed and remanded.

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


text:
    Paul Schmidt, Jane W. Schmidt, and Lumbermens Mutual Casualty Company, a Corporation, Individually and as Use Benefitee of E. L. Harlin, PlaintiffsAppellants, v. Archer Iron Works, Inc., a Corporation, A. T. Scannell, and W. F. Scannell, Defendants-Appellees.
    Gen. No. 50,890.
    First District.
    September 11, 1968.
    Rehearing denied October 18, 1968.
    William P. Nolan, Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellants.

      Vogel & Vogel, of Chicago (L. H. Vogel, R. C. Vogel, and R. A. Walkovets, of counsel), for appellee, Archer Iron Works, Inc.
   MR. PRESIDING JUSTICE SMITH

delivered the opinion of the court.

Plaintiff, Paul Schmidt, was awarded $250,000 for injuries sustained when a part of a tubular tower then being used for pouring concrete fell upon him. His wife’s suit for loss of consortium resulted in a $15,000 verdict and his Workmen’s Compensation insurance carrier was awarded $35,871.58 on its subrogation claim. The trial court set aside the jury verdicts, vacated the several judgments and entered judgment notwithstanding the verdict for the defendant-Archer and conditionally denied defendant’s motion for new trial. Plaintiffs appeal.

The tubular tower and equipment was used for pouring a concrete shore approach for a bridge across the Missouri River. It was about 104 feet in height and quadrangular in shape. The concrete was elevated in a bucket, dumped into a hopper and manually poured into a chute which channeled it by gravity flow to its proper place on the bridge approach. There was a swivel operating device consisting in part of what is termed a boom spout bridle and bridle seat assembly. The evidence is conclusive that there was an “eye” pin 1% inches in diameter and 8 inches in length, a part of this assembly, which broke at a factory weld and permitted the chute to disengage at its tower end and plunge downward on the plaintiff. There is no issue in this case as to what happened or how it happened or whether or not the pin was defective nor the extent of the injuries. The defendant denied that it made, sold or assembled the pin in question and the trial court directed the verdicts on the theory that the plaintiffs’ evidence wholly failed to show that the defendant made, delivered or furnished the pin.

Archer had for many years been engaged in the manufacture of both wooden and tubular construction towers and accessories for such towers. The tower in question was manufactured by Archer in response to an order from Victor L. Phillips Company, not a party to this suit, and a dealer in construction machinery and supplies. It was shipped to Pacific Bridle Company, not a party to this suit, at North Jefferson, Missouri, and delivered in boxes on the banks of the Missouri River. Pacific had the tower and its accessories constructed on a man-made island near the bridge approach, used it for their purposes, dismantled it and returned it to the banks of the Missouri River, unboxed, and thereafter sold it to Harlin Construction Company, who was plaintiff’s employer. The plaintiffs’ testimony clearly establishes that the steelworkers who erected this equipment erected a tower completely functional for pouring of concrete. In so doing, they did not add any parts, purchase any parts, or repair or weld any parts. It is fair to say also that after the equipment was dismantled, it remained on the banks of the river for some considerable time and Harlin then reconstructed it without likewise adding any material or equipment and had a functional piece of equipment. Harlin did, however, add to the tower a type of platform upon which an employee could stand and manually operate the chute. As we view it, the change in construction is in no way material to the issues. There is no affirmative evidence that any part of this equipment was manufactured or purchased elsewhere than from Archer. The evidence on behalf of the defendant shows that a boom spout bridle seat was ordered, but a boom spout bridle is not mentioned. Neither the order, the invoice nor Archer’s stop order specifically include a boom spout bridle and it is the defective pin in the boom spout bridle that is the item whose failure is responsible for the injuries sustained. The pin is an essential, single unit, and integral part of the bridle. The bill of sale between Pacific and Harlin does not specifically include a boom spout bridle. There is therefore no documentary chain of title connecting Archer with the specific piece of equipment which caused the injury. The record is silent as to what items of equipment were specifically shipped to Pacific, whether it was delivered to Pacific on the banks of the river or to some other location or who, if anyone, had access to the equipment between the purchase by Pacific and the purchase by Harlin. The trial court, therefore, concluded that the record was totally devoid of any evidence by the plaintiffs tracing the source of the pin to Archer and that this was particularly true since there was an unequivocal denial by Archer that it was manufactured or supplied by them.

Archer’s catalog and the testimony establishes that over the years Archer manufactured parts and accessories for multiple-purpose wooden and tubular towers. The use of the tower determines the accessories ordered and in each instance the assembling of the tower unit was by the contractor on the job and not by Archer. It is clear from the 1926 catalog that a boom spout bridle is necessary to convert ordinary spouting into a boom spout on the job. It is equally clear from the 1929 catalog and the testimony that “whenever spouts are to be hung off from the tubular tower, the first section is supported on the sliding frame under the tower hopper with a boom spout bridle. This bridle bolts to sliding frame under hopper in hole provided.” This legend is directly opposite a photograph of the boom spout bridle seat. Both were a part of the equipment used on the job. In the hands of both Pacific and Harlin, they had this swivel-type equipment functional for channeling the concrete in various directions without the necessity of moving the tower. Pacific assembled and used it for just such purpose, dismantled it and then within a few short months sold it intact to Harlin. It is thus clear that either the boom spout bridle was shipped by Archer to Pacific or Pacific got it elsewhere. If Pacific got it elsewhere, it is not likely that the plaintiffs would have produced such testimony or if producible would have considered that it had any suit against Archer under such facts. Defendant is correct in stating that they are not obliged to prove the plaintiffs’ case. On the other hand, it is but common sense that if it was probable that Pacific did acquire this boom spout bridle elsewhere, Archer had an impregnable defense. It strains credulity to the breaking point to believe that such a defense was available and not used. With a tower completely functionable on a swivel basis the reasonable inferences are that the boom spout bridle came with the equipment.

Three different pins were offered in evidence and considered by the jury. The first was offered by the plaintiffs and was the pin which was taken from the tower after the accident to Capital Machine Shop in Missouri, repaired, replaced and used by Harlin until the job was completed. Defendant and his engineer denied that Archer ever made a pin like it. A second pin was produced by Archer and identified as the type of pin they always manufactured and it is clear that it is substantially different from the one offered by the plaintiffs. A third pin offered in evidence by the defendant was obtained from the Perry Farm where this tower was reassembled for the purpose of taking pictures used in this lawsuit. The testimony shows that the damaged pin had been removed, marked and a duplicate pin provided. Obviously this pin was not prepared by Archer. It is thus clear that neither of the two pins identified by the defendant and offered in evidence were the pins involved in the injury. We think the evidence clearly shows that the pin offered by the plaintiffs was the pin involved in the accident. Was it a part of the equipment furnished to Pacific?

An officer of Archer testified as to the function of a boom spout bridle that “it is my understanding that the one shown in the catalog that the function is to connect the chute to the boom spout bridle seat. I am referring to catalog 1926. It bears No. 18 in the catalog numbering system of this 1926 catalog” and again when called on behalf of the defendant, he was asked this question, “Just the one number, number 18, covered both the boom spout bridle and the related pin whether it be Defendant’s Exhibit 6 or Defendant’s Exhibit 22 or Plaintiff’s Exhibit 32A, whatever pin would be used to fit into the boom spout bridle seat, that pin with the boom spout bridle which was attached to the chute was in your organization a single item?” Answer “Yes.” It thus seems reasonably clear to us that a boom spout bridle and a boom spout bridle seat were essential in the functioning of this equipment, that the defendant company knew the basic purpose for which the tower and the accessories were to be used and that every reasonable inference is that it was supplied to Pacific, that the parallel plates into which the “eye” pin was placed were shown in the catalog as a part of both the bridle and the bridle seat. There was testimony to the effect that the red oxide paint used on the rest of the tower was the same color as that of the defective pin. It seems to us to be pure speculation from this record to assume that Pacific had a boom spout bridle of their own and ordered only all of the remainder of the equipment from Archer, or to assume that someone else supplied it when certainly such information was readily available, if a fact, from Pacific. It is true that the specific item was not ordered, it is true that the specific item was not mentioned in the shop order. It is true that Pacific did not pay the $38 price shown on the price list of Archer for the bridle and were not billed for it. Yet the evidence is reasonably conclusive that there was a bridle and bridle seat in the functional equipment delivered and used by both Pacific and Harlin.

Under such circumstances, it appears to us clearly and squarely that there was an issue of fact which the jury determined in favor of the plaintiffs. It is further shown by the evidence that a platform for raising material was furnished. The platform was not specifically ordered, but it was testified that the platform was a part of the equipment. Neither was the platform specifically ordered or billed. It has been recently held in Pedrick v. Peoria & Eastern Railroad Company, 37 Ill2d 494, 510, 229 NE2d 504, 513:

“. . . In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

We do not believe that the evidence which we have reviewed considered most favorable to the plaintiffs so overwhelmingly favors the defendant that no contrary verdict based on the evidence could ever stand.

The defendant urges that in any event it is entitled to a new trial because of improper argument on behalf of the plaintiffs and because of the use of improper photographs. We here note that the trial court in its memorandum opinion stated “Thus, if the evidence had established the source of the pin, then there was sufficient evidence for the jury’s consideration as to the manner in which the pin was manufactured and there being no substantial error on which to base a motion for new trial, it is denied.” We do not deem it necessary to further extend this opinion by a discussion of these matters. It is apparent that the trial court did not feel that they affected the verdict. It is likewise apparent that had the trial court felt that a fair trial was not received, his alternative order would have been to grant a motion for new trial if the judgment n. o. v. was reversed on appeal.

Accordingly, the order of the trial court granting the several judgments n. o. v. are hereby reversed and the cause remanded to the trial court with directions to reinstate the judgments entered originally on the jury’s verdict.

Reversed and remanded with directions.

TRAPP and CRAVEN, JJ., concur.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Lanier and James Hemphill, Defendants-Appellants.
    Gen. Nos. 50,976, 50,977.
    First District, Fourth Division.
    June 26,1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carl M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged in the Indictment

Armed robbery. Ill Rev Stats (1965), c 38, § 18-2.

Defense at Trial Alibi.

Judgment

After a bench trial, the court found both defendants guilty, sentencing Lanier to a term of 1 to 10 years and Hemphill to a term of 2 to 10 years.

Points Raised on Appeal

(1) Defendants were erroneously denied access to a police report.

(2) The identification evidence was not sufficient to establish defendants’ guilt beyond a reasonable doubt.

(3) Defendants were prejudiced by a policeman’s testimony that they fitted the description given him by the complaining witness.

Evidence

D<m C. SMpp, for the State.

He had driven a taxi for the Yellow Cab Company for five and one half months on August 23, 1964. At approximately 4:00 a. m. on that date two men hailed his cab and he stopped. The two men stood there talking for about two minutes before entering the cab and during that time he observed them. He then drove them to their destination. Upon arrival, the men held him up at knife point, took $27.60, pushed him out of his cab, and drove away in it. Thereupon, he went to the police to report the robbery.

On cross-examination Shipp testified that he had given to the police a description of the two robbers as being males; one dark brownskinned, the other light brownskinned; one five feet seven inches tall, the other about one to three inches shorter; one had a thin face, the other was round faced; one man had a tooth missing; both men had processed hair and wore black suits, black ties and white shirts; neither man wore a hat.

About two hours later that morning, Shipp saw the two men again and gave a description of the men to the police. Still later he saw defendants at the police station and identified them as the men who had robbed him.

Joseph Cehner, for the State.

He had been a police officer for 19 years and was on duty at the time in question. He took the report of the robbery from Shipp and “beamed it in.” The cab was recovered three blocks away by another squad. About two hours later he and the other policemen arrested defendants as they were leaving a bowling alley. The defendants fitted Shipp's description and were in the general vicinity where the crime was committed. They were then taken as “suspects” to be seen by Shipp and, after he identified them as the robbers, they were taken into custody.

Defendant William Lanier.

He and his codefendant were together at a party at the time of the robbery. Later, after escorting their female companions to their car, defendants took a bus to a bar and when it closed at 5:00 a. m., they went to a bowling alley to get something to eat and to watch the people bowl. They had just left there when they were arrested. He denied the crime charged. One of his front teeth was missing and had been missing on the date of the robbery.

Emma Willis and Pearline Holmes, for the defense.

On the morning of the robbery they were at a dancing and drinking party with defendants. Hemphill arrived at about 1:30 a. m. and Lanier came at 3:30. They all stayed until approximately 4:10 a. m., when defendants walked them to their car which was parked near 7324 S. Carpenter Street, the scene of the party.

Opinion

(1) Defendants make the point that the trial court committed reversible error by denying their request to be furnished with a police report incorporating a statement given to the police by the complaining witness. They rely on People v. Cole, 30 Ill2d 375, 381, 196 NE2d 691, in which the court said: “[Wjhere it appears that there is evidence in the possession and control of the prosecution favorable to the defendant, a right sense of justice demands that it should be available, unless there are strong reasons otherwise.” Recognizing this principle, it is a prerequisite, nevertheless, that defendant “lay a foundation to show that a transcribed statement of the witness exists.” People v. Colson, 37 Ill2d 419, 422, 226 NE2d 610. See also People v. Wright, 30 Ill2d 519, 532, 198 NE2d 316; People v. Wolff, 19 Ill2d 318, 328,167 NE2d 197.

On cross-examination, the complaining witness in the instant case recounted the description of the robbers he gave to the police on the night of the robbery. The record then discloses:

Defense Counsel: And, did they [the policemen] write in their information, did they write their information down as you were talking to them?

Witness: Yes, they wrote it down.

Defense Counsel: And, did you sign anything at that time?

Witness: Yes, I did.

Defense Counsel: At this time, I will ask the State’s Attorney to furnish me with any statements.

State’s Attorney: He signed a complaint.

Defense Counsel: If there is a statement reduced to writing, Judge, signed by the complaining witness, I will ask the State’s Attorney to tender to me at this time.

State’s Attorney: We do not have any at this time.

The Court: Do you have any ?

State’s Attorney: No.

The Court: Well, he said he signed a paper. Do you know what kind of paper, Mr. Martwick [State’s Attorney] ?

State’s Attorney: No, Judge, he signed a complaint, Judge.

The Court: Well, he did not say he signed a statement.

Defense Counsel: I make a motion at this time if there is none—

Defense Counsel: I — Judge, I laid the foundation as to the matter of it being reduced to writing from his conversation wherein he gave a description to the police of the 2 men that robbed him.

Defense Counsel: Did you sign a statement, sir?

Witness: I don’t know nothing about no statement.

Defense Counsel: Judge, I renew my motion.

The Court: What is the man’s answer?

Defense Counsel: He does not remember.

The Court: You do not remember; you signed a paper, you do not know what was in that, is that what you are trying to say?

Witness: I signed a paper.

The Court: What? I cannot hear you. Did you sign a paper ?

Witness: Yes, I did sign a paper.

The Court: And do you know what was on the paper?

Witness: I didn’t pay any attention.

The Court: Oh, he said he did not pay any attention what was on the paper. It could have been the complaint.

State’s Attorney: For the record, we have no statement of the complainant.

The Court: All right. Let the record show that the State’s Attorney knows there is no statement.

From this colloquy two things should be noted:

(1) defendants’ request for “a statement reduced to writing, . . . signed by the complaining witness,” and (2) the State’s uncontroverted denial of having such a statement in its possession. We therefore conclude that the foundation required by the Golson case was not established. In this court, however, and for the first time in the case, defendants claim that they should have been given a copy of the police report, presumably the one “beamed in” by Officer Celmer. (See his testimony above.) This belated request is not only not supported by defendants’ attempted foundation relating to a signed statement, but it also lacks any showing that such a transcribed police report was in existence at the time of the trial. Furthermore, the request comes too late when made for the first time in this court.

(2) Defendants also argue that the identification evidence was insufficient because of the preconditioning by the police officers of the complaining witness prior to his identifying defendants as the robbers. Here, defendants rely on People v. Sanders, 357 Ill 610, 622, 192 NE 697, where the court said:

We have heretofore called attention to the fact that where the witness is told, in advance of the identification, that the guilty party is in the custody of the police officials and the prisoner is produced alone for the purpose of identification, the weight of the evidence of identification is impaired. (Emphasis supplied.)

[2] A review of the police officer’s testimony in this case, however, shows that the complaining witness was not, as contended by defendants, “apprised of the fact that they [the police] had the culprits in custody.” The record of the arresting policeman’s testimony reads:

Well, at that time I told Mr. Shipp and Mr. Brown that I had — we had two suspects that we wanted them to take a look at. So we took them out of the cab — the squad car, and had them in the squad car where Mr. Shipp looked them over. (Emphasis supplied.)

The difference between an advance statement that “the guilty party” was in custody, and a request to look at “two suspects,” is sufficiently patent to distinguish the cases without more. We find no prejudice to defendants in the procedure followed here.

(3) While not raised in their briefs, defendants made a point on oral argument that they were prejudiced by the testimony of the police officer that defendants fitted the description given to him by the complaining witness, citing People v. Wright, 65 Ill App 2d 23, 212 NE2d 126, and People v. Lukoszus, 242 Ill 101, 89 NE 749. There are important distinctions, however, as the testimony in those cases was given on direct examination, and in Lukoszus was admitted over the objection of defense counsel, whereas in the case before us the statement was elicited on cross-examination and no objection was made. We consider that this did not constitute reversible error or prejudice, or, if it did, that it was not the kind of “plain error” which we should notice without its having been brought to the attention of the trial judge. Supreme Court Rule 615; Ill Rev Stats (1967), c 110A, § 615, superseding c 38, § 121-9. See People v. Van Hyning, 72 Ill App2d 168, 175-176, 219 NE2d 268.

Decision

The judgments of the Circuit Court are affirmed.

Affirmed.

McCORMICK, P. J. and DRUCKER, J., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles W. Jackson and Clyde G. Jackson, Defendants-Appellants.
    Gen. Nos. 50,981, 50,982.
    First District, Fourth Division.
    July 3, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

CHARGE: Attempted murder.

Defense at Trial : Denial that either of the defendants had or discharged a gun on the date in question.

Judgment : After a jury trial each defendant was found guilty; Charles Jackson was sentenced to 7 to 15 years in the penitentiary, and Clyde Jackson sentenced to 5 to 15 years in the penitentiary.

Points Raised on Appeal : Judicial error occurred when the State

1) attempted to show that Charles Jackson had been in trouble for fighting while in military service;

2) improperly attempted to impeach defendants; and

3) improperly introduced incompetent hearsay.

Opinion : The first question raised by the defendants is that the State improperly tried to show that Charles Jackson had been in trouble while in the military service. Charles Jackson testified that he had been a member of the U. S. Air Force, at which time he was an amateur boxer. On cross-examination the State’s Attorney asked him if he had gotten into any difficulty in the Air Force about his fighting. When the defendant answered no, counsel for defense objected, and the objection was sustained. A conference was then held in chambers. The defendants argue in this court that the holding of a conference in chambers was highly prejudicial to them. It is common practice in trials for a court to hold a conference in chambers to determine whether or not an objection should be sustained. Afterwards, when the trial is resumed, the court rules in the presence of the jury that the objection is sustained. We find no prejudice in this procedure.

Defendants also argue that an improper attempt was made to impeach their testimony. Police Officer Mannion had testified on direct examination that he had attempted to talk to Charles Jackson but that he was incoherent. Defendant Charles Jackson testified that when he was in the hospital he had a conversation with Officer Mannion. When asked what he had said to the officer, he said he told him, “This man had taken my watch.” Oddly enough, this conversation does not appear in the abstract. Defendant Clyde Jackson testified that he had a conversation with a police officer in the hospital and told him he had been robbed. Officer Mannion was recalled and in rebuttal stated that he had not talked with either of the defendants and that neither of them had said anything to him about a watch being stolen. This testimony was allowed in evidence over the objection of defense counsel. The defendants argue that this was improper impeachment; that it was so prejudicial that it denied them a fair trial; and that the prejudice was made greater because the court overruled the objection of the defense counsel to this testimony. We cannot so hold.

In People v. Thomas, 7 Ill2d 278,131 NE2d 35, the court held that where evidence has been given by a defendant to support an alibi, the People are entitled to offer any-evidence which tends to contradict or disprove the same, even though such evidence could have been admitted in chief. The same rule could be applied in the instant case, since the only testimony of Officer Mannion on direct examination was that he had no conversation with the defendants. Subsequently the defendants testified that they did have conversation with the officer. The officer was properly recalled to rebut that specific testimony.

Both Charles and Clyde Jackson testified that they had entered the Magnolia Lounge for the purpose of telephoning their parents. Clyde testified that he lived with his parents and his brother in Maywood; that on December 25, 1964, his telephone number was 343-6872 and that his mother’s number was 343-6972. In rebuttal the State introduced the testimony of Police Officer Garble, who said that on April 23, 1965, he checked telephone number 343-6972, and that it was not registered to the mother of the defendants. No objection was made to that testimony, and we do not consider it to have been prejudicial. The defendants were not deprived of a fair trial.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


author: JUSTICE McNAMARA.

text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. Mary Quane, Defendant-Appellant.
    Gen. No. 51,029. (Abstract of Decision.)
    First District, Second Division.
    July 9,1968.
    Adamowski, Newey & Riley, of Chicago (Francis X. Riley, of counsel), for appellant; Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen and Ronald S. Cope, Assistant Corporation Counsel, of counsel), for appellee.
   Opinion by

JUSTICE McNAMARA.

Not to be published in full.