text:
    Ruth Froman and Claude Froman, Plaintiffs-Appellants, v. Murril L. Day, Defendant-Appellee.
    Gen. No. 10,889.
    Fourth District.
    November 1, 1967.

      James J. Massa, of Collinsville, for appellants.
    Reed, Armstrong & Gorman, of Edwardsville (James L. Reed, of counsel), for appellee.
   SMITH, J.

The plaintiff-wife filed her suit to recover damages for personal injuries sustained in an automobile accident, and her husband’s suit is to recover damages to his automobile. The jury returned a verdict of not guilty, motion for new trial was denied, and an appropriate judgment was entered on the verdict. The plaintiffs appeal from this judgment order and assert that: (a) the trial court should have directed a verdict in their favor; (b) the verdict of the jury was against the manifest weight of the evidence; (c) the prejudicial conduct of defense counsel accounts for the verdict, and (d) the trial court erred in giving an instruction on speed.

Whether or not the trial court should have directed a verdict is not before us for the simple reason that such issue was never presented to the trial court. Factual or legal issues not presented or considered by the trial court are “men without a country” when they appear only in a brief in this court. Pefferle v. Prairie Mills, Inc., 72 Ill App2d 440, 218 NE2d 247. “. . . Stated in another way, the action of the trial court in failing to do what it was never asked to do cannot be assigned as error. . . .” ILP, Appeal and Error, § 181, p 237. A directed verdict was not requested during the course of the trial nor in the post-trial motion. “. . . A party may not urge as error on review of the ruling of his post-trial motion any point, ground or relief not particularly specified in the motion. . . .” Ill Rev States 1965, c 110, § 68.1. The failure to direct a verdict is not before us for review.

Turning now to the occurrence events, Mrs. Froman testified that she was proceeding on S.B.I. Route 108 in a westerly direction toward Carrollton; she saw a truck approaching on a side road to her left; he was coming to a stop sign; she let up on the accelerator; as she came to the crossroads, he darted out in front of her and all she could see was his red truck, and she hit him. On cross-examination, she stated that the truck was on her left when she first saw it; she was about a block away and going about 45 or 50 mph; she didn’t know how far the truck was from the intersection; her best estimate would be that he was twice as close to the intersection as she was when she first saw it; she did not know how fast the truck was going when he was a half-block to a block from the intersection; the truck was in her visibility the entire time; she didn’t know whether the truck stopped at the stop sign and the highway before he came onto the highway; she just glanced at it; it was raining at the time of the accident and she did not have her headlights on, but did have the windshield wipers on. When she first saw the truck, she put her brakes on; she put her brakes on because she didn’t know whether he was going to stop; the brakes took hold; she then let off the brakes because she thought he was going to stop; she again put her brakes on before the collision occurred; she had them on at the time of impact; she didn’t know how far she was from the point of impact when she put her brakes on before the collision; she was in her lane of traffic when they hit, and she swerved off onto the right shoulder after the impact. The defendant Day came over to her car and said, “I’m sorry it happened, I didn’t see you coming. It was my fault.”

A police officer testified that the Day vehicle was damaged on the right-rear side of the bed and windshield; very little damage was done to the cab from the car striking it; the major impact was on the bed of the truck to the rear near the right-rear wheel; the entire front end and windshield of the Froman vehicle was damaged, and it was a wet day and the road was slick.

Mr. Day testified that when he got to the hard road, he stopped, looked both ways at least twice, didn’t see anything coming, put it in gear and started across the hard road. When he looked to the right it was raining right down. I would say you could see 300 or 400 feet — I don’t think any farther. On a clear day you could see a quarter to a half-mile. The rain and fog line limited visibility on the day of the accident. The right-rear wheel of his truck was hit. His truck was knocked about 55 feet from the point of impact to where it came to rest. It was stopped at the end of the 55 feet when he hit a telephone pole with the bumper and bounced off hitting the fence. He did not tell Mrs. Froman that it was his fault. “I told her I was sorry, but I didn’t tell her it was my fault.”

Ill Rev Stats 1965, c 95%, § 167, provides that one approaching a preferential highway shall yield the highway to other vehicles “which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard.” The Illinois decisions do not provide a precise formula for determining whether a particular vehicle has complied with this statute. That question must be determined by the jury. It involves considerations as to relative speeds and distances of the vehicles from the intersection. Pennington v. McLean, 16 Ill2d 577, 158 NE2d 624; MacMullen v. Danner, 51 Ill App2d 148, 201 NE2d 173.

Likewise the conduct of the plaintiff on the preferential highway is a question of fact for the jury. In Conner v. McGrew, 32 Ill App2d 214, 217, 177 NE2d 417, 418, it is said:

“. . . The authorities agree that a driver on a preferential highway does not have an absolute or unqualified right of way that can be asserted regardless of circumstances, distances or speed. Such a driver may not plunge blindly ahead in reliance upon an assumption that the other motorist will obey the law and yield the right of way, nor may he heedlessly proceed into obvious danger. Rather, there is a duty upon such driver to observe due care in approaching and crossing the intersection and to drive as a prudent person would to avoid a collision when the danger is discovered or, by the exercise of reasonable care, should have been discovered. (Citing cases.) ”

Like the girls in the chorus line, the facts in intersection collisions vary in detail, but the fundamental essentials are the same. The facts in Pennington, Mac-Mullen and Conner are strikingly similar to the case at bar. Day looked both ways twice, but did not see the plaintiff. Defendant’s truck was in plaintiff’s vision the entire time, but she didn’t know whether it stopped at the intersection. The collision occurred in her lane of traffic and on the north side of the intersection. The defendant’s truck was struck at the rear wheel and along the bed. The defendant’s truck caromed a distance of 55 feet, spun around, hit a telephone pole and bounced off into a fence. The defendant heard no horn. Under the three cases cited, these circumstances raised a question of fact for a jury determination as to whether plaintiff’s vehicle on the preferential highway constituted an immediate hazard to the defendant. These circumstances raised questions of negligence and contributory negligence which are peculiarly within the province of a jury. We cannot say that their conclusions were erroneous or that their verdict was against the manifest weight of the evidence.

The plaintiffs further complain of the following instruction given by the defendant.

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

Since, as we have seen, the determination of the issues in this case involves consideration as to relative speeds, distances and visibility, the giving of this instruction was appropriate.

The plaintiffs further complain that the jury verdict was based on an innuendo deliberately injected into the case by the defense counsel that the plaintiff was engaged in an extramarital frolic with a hitchhiker passenger who was never identified and who did not appear and testify. Plaintiff herself testified that she took her husband to a train at Granite City on his way to Chicago about 10:00 a. m. She returned home and then departed to do some shopping for some paper plates, cups, tablecloth, and for a baby shower gift. She left home about 11:00 a. m. and proceeded to Wood River and Alton. Unable to get the baby shower gift, she inquired at one shopping place and was advised that there was a shopping center north of Alton. She then headed north and wound up at the intersection with 108. At the intersection, she saw a man standing there and asked him if he knew whether there was a town nearby and he said, “Yes, to the left.” He asked for a ride and got in. He was in the car at the time of the accident. On cross-examination, plaintiff testified that she did not know what happened to the fellow who was with her; she didn’t see him leave the scene; she didn’t know his name; she had never obtained his name, and didn’t know how he left the scene. She further testified on cross-examination that she didn’t know whether he was a young man, a middle-aged man, or an old man, and she didn’t know whether or not he had a tie on. At the time of the accident, the plaintiff was some 50 miles away from her home, and the defense counsel conducted a rather detailed examination of the route that she followed, the time she consumed, a description of the hitchhiker and what happened to him. On cross-examination, she stated that she and her husband left home to catch the train about 10:00 or 10:30 a. m.; that she expected him back any time that day or night, and that it takes about 5 hours to get to Chicago. Defense counsel then asked, “Did you actually expect him home that night?” An objection to this question was sustained and the subject was dropped. The husband testified on cross-examination that he arrived home the following day and that he had made no effort to ascertain the name or the whereabouts of the hitchhiker. If either was known to anybody, it was never revealed in the trial. It is clear that the presence of this hitchhiker in the plaintiff’s car had to be explained in some way to avoid any unfavorable inferences from the failure to call him as a witness. The probability or improbability of plaintiff’s explanation arises from the facts to which she herself testified. What prompted him like the Arabs to fold his tent and silently steal away without giving his name or communicating with any of the parties under these circumstances is anybody’s guess. Any innuendo was created by the facts in the case and not by any improper innuendo deliberately injected into the case by the defendant. The cross-examination was appropriate and proper. When the specific facts and the occurrence events are considered, it does not appear that the conduct of the hitchhiker or inferences arising therefrom affected the verdict. Whatever they were, they would still be present on a second trial and a different result is not likely.

Accordingly, the judgment of the trial court should be and it is hereby affirmed.

Affirmed.

CEA VEN, P. J. and TEAPP, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE CRAVEN

license: Public Domain

text:
    Ruth M. Bailey, Plaintiff-Appellant, v. Jerold Bly, et al., Defendants-Appellees.
    Gen. No. 10,891.
    Fourth District.
    November 1, 1967.
    Hanagan & Dousman, of Mt. Vernon, for appellant.

      Robert Heckenkamp and Gillespie, Burke & Gillespie, of Springfield, for appellees.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

The plaintiff, Ruth Bailey, suffered personal injuries when she fell down the steps from the front porch of a house owned by her brother, Cleo Bly, and his wife, Vola Bly. Cleo’s son, Jerold, lived next door to his parents and owned a dog that was known by the name of Lady. Plaintiff fell from the porch as a result of tripping over Lady who was lying in her path as she sought to exit from the house, across the porch and down the stairs. At the time of the event, the plaintiff was carrying a suitcase together with some clothing draped over the suitcase.

Plaintiff sued Cleo and Vola Bly and Jerold Bly. In each case, the action was predicated upon the applicability of chapter 8, section 12d, Ill Rev Stats 1965, which provides as follows:

“If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term ‘owner’ includes any person harboring or keeping a dog. The term ‘dog’ includes both male and female of the canine species.”

The allegations of the complaint were that Cleo and Vola were harborers or keepers of a dog which injured her and that Jerold was its owner. The theory of her action is that the dog statute imposes absolute liability on all of the defendants. Each of the defendants filed motions for summary judgment supported by filing in the trial court of the deposition of the plaintiff. The plaintiff filed a motion for summary judgment on the issue of liability.

The trial court granted each of the defendant’s motions for summary judgment, entered judgment accordingly, and this appeal is from that order. So far as here relevant, the deposition of the plaintiff establishes that the plaintiff was leaving the home of the defendants Cleo and Vola Bly, her arms were outstretched, and she was holding a suitcase in a flat position and had one suit and two dresses over the suitcase. She started to exit from the door of the house onto the porch and the dog Lady was lying at the door against the screen. She commanded Lady to move, which she did. As abstracted, the deposition of the plaintiff continues:

“I presumed she had moved off the porch but she had not. She had moved to the step which was three or four steps away and layed down. I did not see the dog laying on the top step before I tripped over it. I had no occasion to look down until I got to the steps, and as I assumed ‘Lady’ would get off the porch, I walked to the steps and tripped over ‘Lady.’ I tripped over her and threw my arms out and I fell to the pavement on the drive-way. I walked into the side or back of the dog, I don’t know whether I hit the side or the back, she’s a big dog and she just piles down about anywhere, and at the time I was walking I was still cradling the suitcase. . . .”

The trial court, in granting the motion for summary judgment, determined that the plaintiff was not attacked or injured by the dog in question and therefore the dog statute as above quoted was not applicable, and further found that Cleo Bly and Vola Bly were not harborers or keepers of the dog at the time of the occurrence alleged in the complaint.

The dog statute creates a right of action unlike the common law remedy, and in order to recover under the statute it is unnecessary to prove negligence, at least as to the owner. It is enough to show an attack or injury by a dog without provocation. Beckert v. Risberg, 33 Ill2d 44, 210 NE2d 207 (1965). Plaintiff places primary reliance upon McEvoy v. Brown, 17 Ill App2d 470, 150 NE 2d 652 (3rd Dist 1958), in which case recovery was allowed for a 72-year-old woman who fell when a dog ran between her legs. In that case, the language of the statute is discussed and the rules of construction are discussed. Great reliance is placed upon the fact that the statutory language relates to liability when the dog attacks or injures. The court concluded that the legislature intended the disjunctive and intended to create two liabilities, (1) when the animal injures a person who is peaceably conducting himself in a place he may lawfully be or (2) if the animal attacks a person under such circumstances. In the McEvoy case, the dog involved was a puppy and there was no evidence of vicious propensities.

The McEvoy case is readily distinguishable from this case in that here there is no overt act, vicious or otherwise, attributable to the dog that caused the injury to the plaintiff. Here the dog is not engaged in an attack and is not causing an injury which in any way relates to the fact of being a dog. On the contrary, the dog in this case, as shown by the deposition of the plaintiff, was an inert or passive force so far as it concerns the injuries of the plaintiff. We will not impute to the legislature an imposition of liability, absolute in all respects, when there is no factual or reasonable basis for such liability other than as a pure penalty for dog ownership.

That which is missing in this case is behavior or activity on the part of the dog which caused the injury to the plaintiff, although in reaching this conclusion we necessarily agree with the plaintiff that the statute is not necessarily limited to providing a remedy when a dog physically attacks a victim.

Having reached the conclusion that there is no attack or injury here within the meaning of the dog statute, it is unnecessary to determine whether or not Cleo and Vola Bly were harborers or keepers of the dog as those terms are used in the statute.

The action of the circuit court of Sangamon County in granting the defendants’ motions for summary judgment was correct and the judgment is affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.


author: MR. JUSTICE MORAN

text:
    In the Matter of the Dependency of Terry John Bartha, a Minor. Phyllis Bartha, Appellant, v. William V. Hopf, State’s Attorney of DuPage County, Illinois, Appellee.
    Gen. No. 67-2.
    Second District.
    November 3, 1967.

      Seymour Velk and Robert K. Downs, of Chicago, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton (Frank Wesolowski, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

One Terry John Bartha was found to be a dependent child by the circuit court of DuPage County and his care and custody was placed in his maternal aunt and her husband. The mother appeals from the order declaring her son to be dependent.

Terry John Bartha was bom to the appellant, Phyllis Bartha, on October 30,1959, in Cook County, Illinois. Terry lived with his mother in Cook County for less than one year, at which time she requested her sister and brother-in-law, Mr. and Mrs. Elmer Fessler of DuPage County, to care for the boy. Terry had resided with the Fesslers in DuPage County for nearly four years when he was returned to the care of the appellant. Less than one year later, the appellant, upon entering a hospital for treatment, placed the child in a taxicab with instructions that he be delivered to the home of her brother, where he was then picked up by another of appellant’s sisters, Mrs. Roberts. One week later, Mrs. Fessler came to the home of Mrs. Roberts, removed the child and took him back to DuPage County to her home. On the next day, July 2, 1965, the State’s Attorney of DuPage County filed a petition to declare Terry John Bartha a dependent child.

At the conclusion of the proceedings below, which lasted for fourteen months, the trial court ruled that Terry John Bartha was a dependent child and was to be in the custody of the Fesslers, in whose temporary custody he had been during the entire proceedings.

The principal grounds urged for reversal are (1) that the court below lacked jurisdiction because the child was brought to DuPage County only the night before the dependency petition was filed, (2) that the final order of the trial court did not contain the requisite findings on which to base an adjudication of dependency, and (3) that the adjudication of dependency was contrary to the manifest weight of the evidence. While other grounds are relied upon for reversal, we find it unnecessary, for the purpose of this opinion, to comment on them.

We are not persuaded that these proceedings were commenced in an improper county merely because the child had been within that county for only one day. The only authority cited by appellant in this regard is Empire Mfg. Co. v. Ginsburg, 253 Ill App 242 (1929), a case which involved a plaintiff’s wrongful inducement of a defendant into a jurisdiction in order to obtain service of process, a proposition not in question here. Indeed, it has been previously held that a court has jurisdiction in cases such as this provided only that the child is in the county at the date of the dependency petition. In re Dependency of Finch, 40 Ill App2d 18, 189 NE2d 678 (1963); ILP, Minors, § 14. See also 1948 Op Atty Gen, 78, where the opinion is stated that “the court may properly take jurisdiction in a case where the child is within the county, but not a legal resident thereof.” Finally, our legislature, after the filing of the original petition herein, codified these views by providing as of January 1, 1966, that venue in any case of this nature “lies in the county where the minor resides or is found,” (Emphasis added) and that a transfer of venue is the appropriate remedy where the proceedings are commenced in a county other than that of the minor’s residence. (Ill Rev Stats 1965, c 37, §702-6(1) and (2).) It should parenthetically be noted that DuPage County is hardly an accidental forum in this case. The central issue is the welfare of Terry John Bartha, a child who had spent four of his six years in DuPage County, and this at the request of appellant.

Although we hold that the court below had jurisdiction to entertain the proceedings, we do question the court’s jurisdiction to enter the dependency order in question. Section 7 of the Family Court Act (Ill Rev Stats 1965, c 23, § 2009) provides in part as follows:

“If the court shall find any child under the age of 18 years to be dependent or neglected within the meaning of this Act, the court may allow such child to remain at its own home subject to the friendly visitation of a probation officer, and if the parent, parents, guardian or custodian consent thereto, or if the court shall further find that the parent, parents, guardian or custodian of such child are unfit or im~ proper guardians or are unable or unwilling to care for, protect, train, educate or discipline such a child, and that it is for the interest of such child and the people of this State that such child be taken from the custody of its parents, custodian or guardian, the court may make an order appointing as guardian of the person of such child, some reputable citizen of good moral character and order such guardian to place such child in some suitable family home which such guardian may provide for such child or the court may enter an order committing such child to some training school or industrial school or to some association embracing in its objects the purpose of caring for or obtaining homes for neglected or dependent children, which association shall have been accredited as hereinafter provided. . . .” (Emphasis added.)

In the final order of the trial court, the only “finding” was that “Terry John Bartha is a dependent child.” No basis whatsoever for such an adjudication appears in the order itself. There is no finding that the appellant is unfit or is unable or unwilling to care for, protect, train, educate or discipline the child, or that it is in the interest of the child to be taken from the custody of the appellant. The previous holding of this court in In re Dependency of Rosmis, 26 Ill App2d 226, 230-231, 167 NE2d 826 (1960), where this same question was squarely presented, is pertinent:

“When the court is exercising a special statutory jurisdiction, as in the case of a proceeding to declare a child a dependent and neglected child, there is no presumption of jurisdiction, Oeth v. Erwin, 6 Ill App2d 18, 126 NE2d 526. The record must show on its face that the case is one where the court has authority to act and if the record fails to so show, the order or judgment of the court is without jurisdiction and void, Keal v. Rhydderck, 317 Ill 231, 236, 148 NE 53. The findings required by the statute are mandatory and jurisdictional, and we must hold that since the order appealed from fails to contain the required findings, the court was without jurisdiction to enter that order.” (Emphasis added.)

The appellee acknowledges that certain findings are essential to an adjudication of dependency, but argues that the final order necessarily was based upon such findings by the court, and that these findings need not be set out in the final order if the facts supporting them can be found in the record. We need not comment upon this theory of appellee, inasmuch as an examination of the record in this case discloses conflicting evidence on several different facts, and we are therefore uncertain as to which facts caused the trial court to adjudicate that the child was dependent. Thus, there was either conflicting or incomplete evidence on appellant’s health, on the child’s health, on the appellant’s alleged promiscuity, on the appellant’s history of financially supporting the child, on the frequency of appellant’s visits to the child, and so forth.

This court should not be called upon to review the entire record and make the initial findings of fact in such a case. We can do no more than review the findings of fact of the trial court and determine whether the facts thus found justify the entry of the order appealed from.

For the same reason that we are unable to judge the propriety of the trial court’s holding of dependency, the essential findings not being set forth in the order, we are unable to say as a matter of law that the adjudication of dependency is against the manifest weight of the evidence.

For the reasons stated, this cause must be remanded for further proceedings consistent with this opinion. We assume that if there is merit to the remaining alleged errors claimed by the appellant, but not discussed herein, that the same will not recur.

Reversed and remanded.

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


author: MR. PRESIDING JUSTICE DAVIS

text:
    James E. Lester, Plaintiff-Appellant, v. Board of Education of School District No. 119 of Jo Daviess County, Illinois, Defendant-Appellee.
    Gen. No. 67-94.
    Second District.
    November 3, 1967.

      Gunner and Keller, of Dixon, for appellant.
    Harold D. Nagel, of Stockton, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, James E. Lester, herein called Lester, filed an action for administrative review, asking reversal of the decision of the Board of Education of School District No. 119 of Jo Daviess County, herein called the board, which relieved him of all administrative duties and assigned him to the position of teacher, with a reduction in salary from $11,500 to $6,800. The Circuit Court of the 15th Judicial Circuit affirmed the decision of the board and an order was entered dismissing the complaint.

On June 1, 1959, Lester was employed by the board to serve “as Superintendent of Schools and teach” for a period of nine months at an annual salary of $6,500. He executed a form contract which bore the entitlement, “Teacher’s Contract — Teacher’s Tenure Law (Board of Education).” It provided “that this contract is subject to the School Laws of Illinois and the reasonable and lawful regulations of said Board.”

Lester acquired tenure as superintendent and teacher, and served as superintendent and principal during the 1964-1965 school year, with no teaching duties, at a salary of $9,000. In the 1965-1966 school year, he continued his duties as superintendent and principal, and was also assigned to teach all commercial subjects, at a salary of $11,500. The salary increase of $2,500 was due to the additional teaching duties. At this time, Lester held a life supervisory certificate which had been issued by the State Superintendent of Public Instruction pursuant to sections 21-1 and 20 of the School Code. (Ill Rev Stats 1949, c 122, pars 21-1 and 20.) This certificate qualified Lester to teach and supervise “in any and all grades of the common schools” subject to the requirements set forth therein.

On March 25, 1966, Lester was duly notified by the board that effective with the next school term he would be relieved of his administrative duties, and would be assigned to the position of teacher at a salary of $6,300. The notice did not state any specific reason for the board’s action.

Upon receipt of such notice, Lester promptly requested a bill of particulars and a hearing pursuant to the provisions of the Teacher Tenure Law relative to his removal and transfer as a teacher and his decrease in salary. The bill of particulars furnished by the board stated that Lester was not being dismissed or removed as a teacher, but was being relieved of his administrative duties; that he would be assigned as a teacher only; and that no question was raised as to his competency as a teacher.

A hearing was held by the board on May 18, 1966, pursuant to such request. At the conclusion of this hearing, the board reaffirmed its prior decision, except that it then voted to increase his salary for the next year from $6,300 to $6,800. The record indicates that Lester had a Master’s degree; that $11,500 was the highest salary paid in the county to a school superintendent; and that the salaries of teachers in the county varied from $5,500 to $7,400 for the 1965-1966 school year. At no stage of this controversy was any question raised as to the competency of Lester as a teacher, and the record contains no statement as to the reason for the action of the board in relieving Lester of his administrative duties.

Section 24-11 of the School Code provides, among other things, that “teacher” means any or all school district employees regularly required to be certified under the laws relating to the certification of teachers; that “board” means a board of education; that any teacher who has been employed as a full-time teacher for a probationary period of two consecutive school terms shall enter upon contractual continued service unless given a written notice of dismissal by the employing board at least sixty days before the end of such period; and that such contractual continued service shall continue in effect the terms and provisions of the contract with the teacher during the last school term of the probationary period, subject to the provisions of the Teacher Tenure Law and the lawful regulations of the employing board. It further provides that this section and succeeding sections do not modify any existing power of the board, except with respect to the procedure for the discharge of a teacher and reductions in salary as thereinafter provided; and that contractual continued service status shall not restrict the power of the board to transfer a teacher to a position which the teacher is qualified to fill, or to make such salary adjustments as it deems desirable, but unless reductions in salary are uniform or based upon some reasonable classification, any teacher whose salary is reduced shall be entitled to a notice and a hearing as thereinafter provided in the case of certain dismissals or removals.

Section 24-12 provides, among other things, that a teacher may be removed or dismissed for the reasons or causes provided in section 10-22.4 of the School Code (Ill Rev Stats 1965, c 122, par 10-22.4), which are: incompetency, cruelty, negligence, immorality or other sufficient cause; and whenever in the opinion of the board the teacher is not qualified to teach or the interests of the schools require it. It further provides, that if the removal or dismissal results from the decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, written notice shall be given the teacher by registered mail at least 60 days before the end of the school term, together with a statement of honorable dismissal and the reason therefor, and in all cases, the board shall first remove or dismiss all teachers who have not entered upon contractual continued service before removing or dismissing any teacher who has acquired such status and is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service; and that if the dismissal or removal is for any other reason or cause, it does not become effective until approved by a majority vote of all members of the board upon specific charges and after a hearing, if a hearing is requested in writing by the teacher within 10 days after the service of notice as therein provided.

Lester contends that an individual serving as superintendent and teacher is entitled to retention in grade under sections 24-11 and 12 of the School Code (Ill Rev Stats 1965, c 122, pars 24-11 and 12); and that he was discharged by the Board in violation of the tenure provisions of the School Code.

The board concedes that Lester had “tenure” as a certified employee of the board, and that his salary could not be reduced without a hearing, but denies that he was entitled to continue in effect for succeeding years the terms and provisions of his contract during the last school term of his probationary period, in the absence of cause for removal. The board argues that such contention disregards that part of section 24-11 of the Code which states:

“Contractual continued service status shall not restrict the power of the board to transfer a teacher to a position which the teacher is qualified to fill or to make such salary adjustments as it deems desirable, but unless reductions in salary are uniform or based upon some reasonable classification, any teacher whose salary is reduced shall be entitled to a notice and a hearing as hereinafter provided in the case of certain dismissals or removals.” (Emphasis ours.)

The board further argues, and we agree, that it would be unreasonable to construe that part of section 24-11, which provides for the continuation “in effect the terms and provisions of the contract with the teacher during the last school term of the probationary period,” to mean that neither the board could vary the duties of the teacher thereafter nor the teacher teach or perform any services other than those specified in the contract of the last probationary year. People ex rel. McCoy v. McCahey, 296 Ill App 310, 323, 15 NE2d 988 (1938).

In McNely v. Board of Education of Community Unit School Dist. No. 7, 9 Ill2d 143, 137 NE2d 63 (1956), the court held that a superintendent who did no teaching was included within the provisions of the Teacher Tenure Law, and his dismissal upon the subterfuge of abolishing the job, following which another was appointed to such position, was illegal. At page 147, the court stated:

“The Teacher Tenure Law was enacted primarily for the protection of educational personnel who, prior to its enactment in 1941, served at the pleasure of school directors or boards of education. Its object was to improve the Illinois school system by assuring personnel of experience and ability a contractual continued service status based upon merit rather than insecurity of employment based upon political, partisan or capricious consideration. Donahoo v. Board of Education, 413 Ill 422; Betebenner v. Board of Education, 336 Ill App 448.
“It was for the legislature rather than this court to determine who should be embraced within the scope of its purpose. There is specific statutory direction for the inclusion of educational administrative and supervisory personnel of the type school district in question within the provisions of the Teacher Tenure Law. Judicial construction is not required to accomplish this result.”

At page 148, the court discussed the policy of the legislature in these words:

“It was the policy of the legislature to include within the Teacher Tenure Law only those employees required to be certified. It stated that policy by the simple method of defining teachers for the purposes of the act, as ‘any or all school district employees regularly required to be certified under laws relating to the certification of teachers.’ ”

And, at page 151, the court concluded as follows:

“In 1951 section 21-1 of the School Code was amended to provide: ‘No one shall teach or supervise in the public schools . . . who does not hold a certificate of qualification . . . .’ (Ill Rev Stats 1951, chap 122, par 21-1.) We recognize that this subsequent legislation does not afford proof of prior status of the law; but the force of the long continued administrative construction of the school law requiring the certification of superintendents and public acquiescence therein, coupled with the later statutory enactment in conformity thereto, leaves us with the inevitable conclusion that superintendents are, under present law, and under prior law, ‘teachers’ within the definition of the Teacher Tenure Law.”

In the case of Wilson v. Board of Education of School Dist. No. 126 Union, Madison County, 327 Ill App 338, 64 NE2d 380 (1945), Wilson had acquired tenure as superintendent of the school district in question. The board, without notice or written charges, elected Brown superintendent of schools of the district to fill the position held by Wilson, and elected Wilson as principal of one of its schools at a reduced salary. The board contended that it was not restricted in its power to transfer a teacher to a position which the teacher was qualified to fill, or to make such adjustments as it should deem desirable.

This court noted that the Teacher Tenure Law provided that unless the reduction in salary was uniform or based upon some reasonable classification, any teacher whose salary is reduced is entitled to notice and a hearing as provided in cases of certain dismissals or removals for cause. No notice was given or hearing held in Wilson. Accordingly, the court held that the transfer of Wilson was in violation of the Tenure Law.

It was held in People ex rel. McCoy v. McCahey, supra, that the transfer of a principal from the elementary schools to a high school or from high school to an elementary school, as the best interest of the respective schools may require, and in accordance with the rules of the board, is proper and valid. This case, however, was not governed by the provisions of the Teacher Tenure Law in question, but rather by the pertinent provisions of the School Code pertaining to cities of over 500,000 inhabitants. (Ill Rev Stats 1965, c 122, pars 34-83 through 34-85 (b).)

The foregoing cases, while pertinent, are not decisive of the exact question presented for determination in the case at bar. Here the board served notice on Lester that he would be relieved of his administrative duties, assigned as a teacher and his salary reduced, but no grounds or cause was specified for its action. Lester’s salary was reduced from $11,500 to $6,800 — an amount which exceeded his original salary by the sum of $300 — and said tendered salary was comparable to the mean salaries payable in the county to other teachers holding a Master’s Degree, as well as to those payable by the district in question.

The precise question for determination here is: whether under the provisions of the Teacher Tenure Law, a person employed as superintendent and teacher, who subsequently becomes superintendent, principal and teacher, acquires tenure in the position of superintendent.

In the case of Richards v. Board of Education of Township High School Dist. No. 201, 21 Ill2d 104, 171 NE2d 37 (1961), the court held that a salary reduction without notice and hearing is not improper so long as it is uniform or based upon some reasonable classification. The question presented in Richards was the legality of the school district’s action in combining a program for professional growth in its salary schedule. After discussing the minimum salary provisions of the School Code, at pages 108, 109, 110 and 111 the court stated:

“The only other limitation upon the authority of the board to fix salaries, which has been found or brought to our attention, is in the Teacher Tenure Law ....
“Section 7-14 of the School Code (Ill Rev Stats 1957, chap 122, par 7-14) grants to a board of education all of the powers given to school directors by article 6 of the Code. Among these powers are the passing of rules for the government of the school, and the fixing of salaries for teachers. See: Ill Rev Stats 1957, chap 122, pars 6-20 and 6-22. From the language the legislature has employed, it is clear that a school board has discretionary control over the salaries of its teachers, subject only to any limits expressly fixed by the School Code and to constitutional prohibitions against actions that are arbitrary, discriminatory and unreasonable, or based upon an improper classification. . . .
“It is neither arbitrary nor unreasonable to classify or compensate teachers on the basis of their ability and value to the school system. Plaintiff makes no serious contention to the contrary, but insists that a salary schedule based upon professional growth is discriminatory and based upon an unreasonable classification. . . .
“Plaintiff further contends that defendant’s salary program is in derogation of his life teaching certificate, and that it violates his tenure or continued contractual service status. We think he is mistaken in both respects. The fact that plaintiff has a life certificate does not guarantee him employment, nor compel any particular school board to hire him, nor does it mean that he is entitled to employment at a particular salary, or entitled to pay raises, regardless of his compliance with lawful regulations concerning such pay raises.”

In order for the salary reduction, which the board imposed on Lester, to comply with the provisions of section 24-11 of the School Code, it must either be “uniform” in its application to all of the teachers of the district, or it must be “based on some reasonable classification.” The record indicated that the reduction was not uniform in its application. Therefore, unless it was “based on some reasonable classification,” Lester was entitled to a notice and hearing as provided for in section 24-12 of the School Code with reference to dismissal for cause. Such notice was not given to him and he was not dismissed for cause, but rather was relieved of his administrative duties and assigned as a teacher at a reduced salary.

Section 24-12 does not preclude the board from transferring a teacher to a position the teacher is qualified to fill or prohibit it from making such salary adjustments as it deems desirable as long as such reductions are uniform or are “based upon some reasonable classification.” (Emphasis ours.)

The term “teacher” means any and all district employees regularly required to be certified under the laws relating to the certification of teachers. Thus, the term “teacher” includes superintendents, principals, supervisors, and teachers, as well as certain other certified school employees. McNely v. Board of Education, supra 149. The Tenure Law permits the board to assign a teacher to a position the teacher is qualified to fill.

For these reasons, we construe section 24-11 of the School Code to provide that a superintendent in the public schools does not acquire tenure in the position of superintendent, but rather acquires tenure as a certified employee of the school district. And likewise, we believe that a person serving as superintendent, principal and teacher, or in any two of such positions, may be assigned by the board to any one of the positions he is qualified to fill, provided such action by the board is bona fide and not in the nature of chicanery or subterfuge designed to subvert the provisions of the Teacher Tenure Law.

We also believe that such bona fide assignment may be at a reduced salary in that such reduction would be “based on some reasonable classification.” The salary reduction as applied to Lester, however, could not cause his salary to be below that paid by the district to other teachers in the same classification, based upon training, experience and duties. The evidence in the case at bar indicates that a salary of $6,800 for the 1966-1967 school year, which sum was offered to Lester, met these limitations.

Our courts have often held that the Teacher Tenure Law is in derogation of the common law; that it makes a contract for the parties by operation of law where otherwise none would exist; that it creates a new liability on the part of school boards; and that, therefore, it should be construed strictly in favor of the board. Anderson v. Board of Education of School Dist. No. 91, 390 Ill 412, 422, 61 NE2d 562 (1945); Lingle v. Slifer, 8 Ill App2d 489, 493, 131 NE2d 822 (1956) ; Donahoo v. Board of Education of School Dist. No. 303, 346 Ill App 241, 247, 104 NE2d 833 (1952); Biehn v. Tess, 340 Ill App 140, 148, 91 NE2d 160 (1950); 33 ILP, Schools, § 205, pp 192-195.

In addition to the foregoing reasons, we believe that this view finds support in the pragmatic facts attendant upon the operation of our public schools. The general assembly is charged by constitutional mandate to provide a “thorough and efficient system of free schools, whereby all children of this State may receive a good common school education.” (Article VIII, Section 1, Constitution of Illinois 1870.) It has empowered boards of education to accomplish this end, among which are the powers to adopt reasonable rules and to fix salaries for teachers. (Ill Rev Stats 1965, c 122, pars 10-20.5 and 10-20.7.) Subject to constitutional and statutory prohibitions, such boards must be allowed flexibility consonant with the purposes of the Teacher Tenure Law, in the bona fide assignment of its certificated personnel.

Consequently, the order of the trial court is affirmed.

Order affirmed.

MORAN and ABRAHAMSON, JJ., concur.


author: PRESIDING JUSTICE MORAN.

text:
    Silas Hamson, Plaintiff-Appellant, v. Mervil C. Lionberger, et al., and Gerald W. Peck, Individually and as Trustee for Gertrude Irvin, Defendants-Appellees.
    Gen. No. 67-38.
    Fifth District.
    November 2, 1967.

      Jay B. Stringer, of Mt. Vernon, for appellant;
    Callis, Filcoff and Gitehoff, of Granite City (John Gitchoff, of counsel), and Howard and Howard, of Mt. Vernon (G. W. Howard, III, of counsel), for appellees.
   Opinion by

PRESIDING JUSTICE MORAN.

Not to be published in full.


author: Opinion by PRESIDING JUSTICE CRAVEN.

text:
    Woodford County National Bank of El Paso, a National Banking Corporation, Plaintiff-Appellee, v. Fred Kurtz, Defendant-Appellant.
    Gen. No. 10,878.
    Fourth District.
    November 1, 1967.
    Allen & Korkowski, of Rantoul (John E. Gambill, of counsel), for appellant;
    Dunn, Dunn, Brady, Goebel, Ulbrich & Hayes, of Bloomington (Merrick Hayes, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE CRAVEN.

Not to be published in full.


author: MR. JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert S. Hines, et al., Defendants-Appellants.
    Gen. Nos. 50,522-50,524.
    First District, First Division.
    September 25, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Thomas J. Farrell, Frederick F. Cohn, 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 Truman Larrey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendants were jointly indicted for the crime of burglary and after a plea of not guilty they were tried and found guilty by a jury. They were sentenced to terms in the Illinois State Penitentiary as follows: Willie S. Terry, 6 to 10 years; Robert S. Hines, 4 to 10 years; and Henry R. Clay, 4 to 10 years. The defendants appeal and contend (1) that the court erred in admitting evidence of a lie detector test, and (2) that the court erred in admitting evidence of incompetent and prejudicial matter.

The record indicates that upon the opening of the beauty shop at 4309 South Berkeley, at 8:30 a. m. on June 13, 1964, an employee found the premises were burglarized and an electric stove, irons, hair oil, dyes, spools of thread, a hair dryer and other items were missing. A next door neighbor testified that at 12:30 a. m. she heard a noise, saw a light go on and off inside the back of the beauty shop and saw defendants, Hines and Terry, whom she knew, coming from the rear of the beauty shop carrying shopping bags. Another resident residing two doors from the shop testified that she saw defendant Clay who was carrying a hair dryer, enter a cab about 12:30 a. m. on the morning in question and defendant Terry carrying a bag enter the same cab. A third neighbor testified that he saw Hines, Terry and Clay and another man with two bags which contained items identical to those of the burglarized store.

The defendants, Hines and Clay, denied participation in the burglary. Upon direct examination defense counsel asked defendant Hines about a previous felony conviction and he admitted that he was convicted of possession of narcotics on May 27, 1957, and had served 21 months in the penitentiary. On cross-examination by the prosecutor the following occurred:

Q. In 1957 you were convicted of possession of narcotics, is that right?
A. Yes, I was.
Q. Were you addicted to narcotics at that time?
A. Yes, I was.
Q. And do you still use narcotics ?
A. No.
Mr. Nelson: Objection. That is not relevant to this cause.
Mr. Martwick: Oh, Judge—
The Court: It affects his credibility. He may ask it.
Mr. Martwick: Q. What type narcotics were you addicted to ?
Mr. Nelson: We object to this now. He just asked if he was addicted and he has answered.
The Court: He may ask.
Mr. Martwick: Q. What type narcotics were you addicted to ?
A. Heroin.
Q. What type habit did you have in 1957 ?
A. It was small.
Q. When you say “small” how much were you using a day?
Mr. Nelson: We object to that. He has gone into that. That is objectionable, it has to be.
The Court: That is enough to establish that in 1957.
Mr. Martwiek: How about in 1964, did you use any narcotics ?
A. No, I didn’t.
Mr. Nelson: I object to that. There is no testimony about that.
The Court: Objection overruled. I have said he may question him as to his addiction, if any, because it goes to the credibility, and you know that.
Mr. Martwiek: Q. When was the last time you used heroin?
Mr. Nelson: Judge, we object to that now. There is no establishing whether he did it and he has no right to ask this question and he knows it.
The Court: He may answer.
The Witness: The last time was in 1960.
Mr. Martwiek: Q. 1960?
A. I think so.
Q. In 1960 did you have a habit?
A. No.
Q. How much narcotics did you use during the year 1960?
A. I couldn’t give no figure of how much I was using.
Q. Were you spending a hundred dollars a day on heroin?
A. No.
Mr. Nelson: I object to this.
Mr. Martwick: Judge, narcotics addiction goes to the credibility.
The Court: Strike the reference to $100 a day.
Mr. Martwick: Q. Well, how big a habit did you have?
A. It wasn’t $100.
Q. How big was it?
A. It didn’t exceed over 5.
Q. $5.00 a day ?
A. No, not a day.
Q. How often would you use it ?
A. Once every two weeks.
Q. Once every two weeks you used heroin?
A. Yes.
Q. Since 1960 until you were arrested in 1964, you have never touched heroin?
A. No.
Q. In 1960 what neighborhood did you live in?
A. On 42nd and Greenwood.
Q. In 1964 you still lived there, is that right?
A. Yes, sir.
Q. From 1960 to 1964, you just kicked the habit, is that right?
A. Yes, sir.
Mr. Martwick: Fine. Thank you.
Mr. Nelson: No further questions, Your Honor.

The State argues that as defense counsel opened the door to defendant’s conviction he is in no position to complain. We do not agree. In Illinois, when the defendant testifies in his own behalf, prior convictions of infamous crimes can be introduced by the State for the purpose of impeachment and the jury is instructed that such evidence is shown only for the purpose of affecting credibility. The defendant’s counsel only brought out the conviction knowing full well that the State would offer a certified copy of this conviction if he didn’t, but this maneuver does not open the door to the prejudicial cross-examination that took place. Cross-examination on crimes other than the one for which the defendant is on trial is allowed only where its relevancy is so closely connected with the main issue as to justify admission, which is not the situation here. People v. Cage, 34 Ill2d 530, 216 NE2d 805. In our judgment this rule should not be extended along the lines of the cross-examination which took place here. A defendant’s guilt must be established by legal and competent evidence, uninfluenced by bias raised by irrelevant evidence which serves only to prejudice him in the eyes of the jury.

In People v. Crump, 5 Ill2d 251, 125 NE2d 615, cited by the State, the defendant was charged with murder. The question there was whether a state’s accomplice witness could be properly cross-examined by the defense as to drug addiction for the purpose of impeaching his credibility. The Supreme Court stated that particularly in a murder charge where the jury fixed the punishment the jury was entitled to know whether the witness was or had been a drug addict or had used narcotics on the day of the alleged crime, and the refusal of the court to permit such cross-examination by defense counsel was prejudicial and reversible error. The Court commented that in People v. Bond, 281 Ill 490, 118 NE 14, the court held that evidence must be admitted if it tended to prove a substantial ground to lessen the punishment and reduce it below the maximum punishment fixed for murder. And in People v. McElroy, 30 Ill2d 286, 196 NE2d 651, the defendant was charged with selling narcotics and on direct examination by his own attorney he testified that he was not using narcotics at the time of his arrest and that he had never used narcotics. It was there held that cross-examination concerning his drug addiction had been opened by defense inquiry and therefor the defendant was in no position to complain.

In the case at bar the defendant would not have brought out his prior conviction if the rule in Illinois did not permit the State to do so. Generally, this type of evidence should be restricted to the instruction given by the court which is adequate to bring to the attention of the jury that it may affect the credibility of the witness. The prosecutor, not satisfied with his general cross-examination on this subject, brought to the attention of the jury the details of the conviction and the amount of money needed by the defendant to daily purchase narcotics from 1957 to 1960. The evidence solicited by the prosecutor as to defendant’s conduct in prior years bears no relevant relationship to the issue in dispute, but tendéd only to improperly prejudice the defendant in the eyes of the jury. This examination was an obvious attempt to prejudice the jury and impress them with the fact that defendant might have a present need for money to purchase narcotics and therefor he was more likely to have committed the crime charged. This type of cross-examination is, in our judgment, both incompetent and prejudicial. People v. Donaldson, 8 Ill2d 510, 134 NE2d 776.

We also conclude that the trial judge erred in permitting evidence in regard to a lie detector test and in permitting the prosecutor to refer to it in his argument to the jury. No claim was made by either side that Clay took a lie detector test. In direct examination of a police officer by the prosecutor it was improperly brought out that Clay was questioned in the polygraph section of the crime laboratory. In final argument the prosecutor compounded this prejudicial error by arguing that:

Sure, he [Clay] said why didn’t he sign the statement to that effect. A person would much rather sign a statement saying he didn’t do it than putting in writing he did do it. Naturally, you are reluctant to sign that and Officer Thompson isn’t in the police department to take written statements, he is there to perform lie detector tests. And he didn’t perform one after Mr. Terry — excuse me, after Mr. Clay told him what happened.

We have examined the cases cited by the State on this issue and find that they are distinguishable on the facts and we need not go into detail.

Because of the aforementioned errors the defendants are entitled to a new trial. The judgment of the Criminal Division of the Circuit Court is reversed and the cause is remanded for a new trial.

Reversed and remanded with directions.

MURPHY, P. J. and ADESKO, J., concur.


author: MR. JUSTICE ADESKO

text:
    Harrell Crabb, Plaintiff-Appellee, v. Robert R. Anderson Company, an Illinois Corporation, Defendant-Appellant.
    Gen. No. 50,651.
    First District, First Division.
    September 25, 1967.
    Rehearing denied October 18, 1967.

      Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (Leonel I. Hatch and D. Kendall Griffith, of counsel), for appellant.
    Milroy R. Blowitz and Robert J. Hellgeist, of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Plaintiff, Harrell Crabb, was an ironworker employed by Hunter Construction Company, (Hunter). Hunter subcontracted to do structural steel work for Robert R. Anderson Company, (Anderson), general contractors, who were constructing an overpass at the Northwest Expressway and Milwaukee Avenue, in Chicago, Illinois. While on the construction site, Crabb, was injured when a jib fell from a crane and struck him on the head. Plaintiff’s claim against Anderson is based on violation of the Structural Work Act (Ill Rev Stats 1965, c 48, §§ 60-69). The jury returned a verdict in favor of plaintiff in the sum of $50,000. Judgment was entered on the verdict and Anderson appeals. No questions are raised as to the pleadings.

Defendant contends (1) that there was no evidence that it had charge of the erection of the viaduct within the meaning of the Structural Work Act; (2) that there was no evidence that the alleged violation of the Structural Work Act was the direct or proximate cause of the occurrence in question; (3) that the verdict was against the manifest weight of the evidence; (4) that improper conduct of plaintiff’s attorney was prejudicial; (5) that it was error to allow testimony regarding surgery performed on the plaintiff; and (6) that the damages awarded by the jury were excessive.

On August 26, 1958, Hunter entered into a contract with Anderson to supply labor, equipment and material to erect a bridge at the intersection of the Northwest Expressway and Milwaukee Avenue. One of the pieces of equipment used on the construction site was a Lima 50-ton crane with a 60-foot boom. Attached to the end of the boom, at an angle, was an arm or extension, approximately 20 feet long and called a “jib.” The jib weighed 1,500 to 2,000 pounds and was attached to the end of the boom by cables and a pin.

The crane was placed in a “cut” or trench which had been excavated by Anderson. The “cut” was % of a mile long and 200 to 250 feet wide. The crane was being used to lift and move large steel girders. A girder had just been placed and the crane was moving back to pick up another girder when the jib fell off the boom and struck plaintiff, crushing his hard plastic hat and as one witness described it, “his head was laid open completely.”

Anderson insists that it did not have “charge of” the work as required by section 9 of the Scaffold Act to render it liable. (Ill Rev Stats 1965, c 48, § 69.) Anderson states in its brief that it was not “in charge of the operation involving the alleged violation which occurred during the erection of the structural steel for the Milwaukee Avenue overpass bridge or viaduct. . . . There is no evidence that anyone other than a Hunter employee directed the operation of the crane. . . . This occurrence arose out of the operation of a crane. The defendant was not operating the crane.”

Section 9 of the contract between Hunter and Anderson provided as follows:

“Coordination of Work. The Sub-Contractor agrees to perform the work hereunder diligently, properly and in such manner as the Contractor may determine will best coordinate with the work of the Contractor, other sub-contractors and contractors, and the Contractor shall at all times have access to the work for necessary inspection to insure compliance herewith. The Sub-Contractor shall immediately remove any of his employees objectionable to the Contractor, Owner and other sub-contractors.”

The treasurer of Anderson testified with respect to the duties of the job superintendent it employed:

“His main duty was to see that the job ran smoothly, that everything was programmed correctly, and that a sub-contractor would move in at the right time along with the progress of the job.”

The ironworker superintendent for Anderson also testified that the duties of Anderson’s job superintendent were to oversee the whole job and go around from day to day and make sure every person there was on schedule. Anderson’s job superintendent admitted in cross-examination that all the subcontractors were responsible to the general contractor and were instructed when to begin their work.

Clifton Voight was Hunter’s job supervisor. He testified that “Anderson had notified the office for Hunter Construction and they had sent me on the job to start the erection of steel.” When he arrived on the job, Voight was shown the piers that were ready for placing of the steel girders.

The crane had been spotted in the “cut” Anderson had excavated and there was substantial testimony by several witnesses that it was quite muddy and filled with holes. As the crane lifted and moved the steel girders, it tilted as much as five feet because of the condition of the ground on which it was located. There was conflicting testimony on whether the crane was standing on wooden platforms at the time of the accident. Those witnesses who claimed that the crane was on platforms could not agree if the platforms belonged to Hunter or Anderson.

Anderson’s argument, that because it did not operate the crane, it has no liability under the Scaffold Act, is not in accord with the definition of “having charge of” as set forth in Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247 (1965). In Larson the Supreme Court stated (pp 321-322):

“The term ‘having charge of’ is a generic term of broad import, and although it may include supervision and control, it is not confined to it. As was said of the word ‘charge’ in People v. Gould, 345 Ill 288, 323: ‘The word does not necessarily include custody, control or restraint, and its meaning must be determined by the associations and circumstances surrounding its use. “To have charge of” does not necessarily imply more than to care for or to have care of.’ Thus, while the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is ‘in charge,’ they are not necessary or conclusive factors, nor is either made a sine qua non for liability under the statute. Rather, consistent with its beneficent purpose of preventing injury to persons employed in the extrahazardous occupation of structural work, the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises, but, to insure maximum protection, is made to extend to owners and others who have charge of the erection or alteration of any building or structure.”

Thus in the recent case of Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630 (1967), an architect was held as “having charge” of the work under the Scaffold Act because he had the right under the contract to stop the work.

In Sola v. City of Chicago, 82 Ill App2d 266, 227 NE2d 102 (1967) an argument similar to that advanced in the instant case was rejected.

“The City contends that the accident occurred in the operation of the crane, run by a contractor’s employee at the direction of the crew foreman. In light of a recent Supreme Court decision, Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630, decided January 19, 1967, that fact would not necessarily rule out defendant’s liability.” (P 274.)

The Larson case as well as Miller, Sola and Kobus v. Formfit Co., 35 Ill2d 533, 221 NE2d 633 (1966), direct that the issue of whether a defendant is in charge of the construction within the meaning of the Scaffold Act is a question of fact. In accordance with these authorities, the issue was submitted to the jury for their determination. As indicated by the evidence detailed above, the determination of the jury that Anderson was “in charge of” the construction is not against the manifest weight of the evidence.

Anderson next contends that the alleged violations of the Scaffold Act were not the direct or proximate cause of the occurrence. The Scaffold Act requires that a crane used in construction “be so erected and constructed, placed and operated as to give proper and adequate protection to life and limb of any person or persons employed or engaged thereon or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Ill Rev Stats 1965, c 48, § 60.)

Defendant admits in its brief that plaintiff’s evidence disclosed “that the site where the crane was located was muddy so that the crane sank in the mud; that no floats or platforms which would have prevented the sinking of the crane were used.” This however, argues defendant, was not the cause of the occurrence. It is defendant’s theory that the accident was caused by the whip line catching onto the jib and pulling it off as the hook and headache ball were being raised.

The Complaint alleged that there was a failure to operate the crane so as to give adequate and proper protection to the plaintiff. The evidence was that the crane was being operated on a muddy and uneven area and that it should be set on level areas. There was no conflicting evidence on this point. Whether the hook and headache ball were moving at the time the jib fell was open to question. We are thus left with a factual situation in which reasonable men might arrive at different conclusions. Such questions are appropriately left to the fact finding body. Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74 (1954).

Anderson’s next contention is that it was prejudiced by the conduct of plaintiff’s counsel. The post-trial motion points to over 375 places in the record where it is alleged plaintiff’s counsel made improper remarks, attempted to testify himself to facts not in evidence, asked improper questions and discussed points of law to the jury. Plaintiff counters in his brief that defendant’s counsel deliberately provoked certain of the improper remarks, injected improper matters into the record, and conducted improper impeachment. It would serve no useful purpose to go into detail with respect to each alleged error. We have carefully considered all the arguments and reviewed the entire record which covers over 1,600 pages of testimony and eight days of trial. The trial judge promptly ruled on all objections that were made, struck improper testimony and accurately instructed the jury on such issues. We note that he exercised his judicial discretion so as to conduct a fair and impartial trial although often forced to reprimand both counsel to cease their constant bickering.

The ultimate question is not whether the trial was scrupulously free of all error but whether any error occurred, which prejudiced the defendant. Nelson v. Union Wire Rope Corp., 31 Ill2d 69,199 NE2d 769 (1964); Whitman v. Prescott, 80 Ill App2d 49, 225 NE2d 384 (1967). After reviewing the record we find no reason to believe that the verdict of the jury was the result of any alleged misconduct by plaintiff’s counsel.

Anderson next contends that the trial court committed error in permitting plaintiff to testify that in February, 1963, he was in the Pasadena Bay Shore Hospital and a Dr. Ashkenazy performed, under local anesthetic, an operation on his lower back. This was the full extent of the testimony. Dr. Ashkenazy did not testify as to what he did but plaintiff’s counsel promised to tie up this testimony.

Without reciting the extensive medical testimony elicited from the five medical witnesses in this cause, suffice it to say that there was some testimony regarding extensive injury to plaintiff’s head, neck, elbow, cervical region, shoulder and hip. He had difficulty in walking and some lumbar involvement.

The plaintiff’s testimony complained of, and the nature of it is very slight in light of the entire record. We do not believe that defendant was prejudiced when one considers the extensive injuries suffered by plaintiff. The situation here is not similar to that in Miller v. Chicago Transit Authority, 3 Ill App2d 223, 121 NE2d 348 (1954) and Gordon v. Checker Cab Co., 334 Ill App 313, 79 NE2d 632 (1948), both cited by defendant. In those cases the defendant by innuendo and under the guise of impeachment attempted to show that the plaintiff was a malingerer and had been involved in previous accidents. That is not involved here.

The final argument raised by Anderson is that the damages awarded by the jury are excessive. As a general rule, a court of review will not interfere with the discretion of the jury in its assessment of damages. Powers v. Kelly, 83 Ill App2d 289, 227 NE2d 376 (1967). Prior to the accident plaintiff was a healthy and able iron-worker. Since being smashed on the head by a jib from a 50-ton crane, he has no longer been able to function in his job and has suffered recurring dizziness, walks with difficulty and has pain in his neck, shoulder, arm, left leg and left side. Specific items of damages proven amounted to $3,600.

In Barango v. Hedstrom Coal Co., 12 Ill App2d 118, 138 NE2d 829 (1957), a verdict for $75,000 was sustained where the plaintiff had $4,000 in out of pocket expenses. In that case, the court stated (p 138):

“The question before us is as to whether or not the total amount of the verdict falls within the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience.”

Considering the extensive injuries suffered by plaintiff, we do not find the verdict so large as to require reversal. For the foregoing reasons the judgment and verdict of the Circuit Court are affirmed.

Judgment affirmed.

MURPHY, P. J. and BURMAN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Earl Gross, Defendant-Appellant.
    Gen. No. 50,847.
    First District, First Division.
    September 25, 1967.

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

delivered the opinion of the court.

The defendant, Earl Gross, was convicted of the charge of murder in a bench trial and was sentenced to a term of twenty to forty years in the Illinois State Penitentiary. On this appeal the defendant contends that reasonable doubt exists as to his guilt or in the alternative that the sentence was excessive.

On September 29, 1964, at about 2:30 p. m., Aloysius P. Tack, Secretary-Treasurer of Bartender’s Union Local 278, was shot to death in his office at the Bartender’s Union Hall on the fourth floor of 10 North Clark Street, Chicago, Illinois. The premises are described as containing a reception room and as you enter two employees sit behind a counter in the outer office. Opposite to the entrance to the reception room there is a short stairway to a four by six foot hallway which leads to a clubroom on the left and to several offices on the right including the private office of the deceased.

The evidence shows that at 2:00 p. m. on the day in question, Kathleen Harrison, the receptionist and phone operator, Marie Jadrych, the bookkeeper, and the deceased, were the only employees of the union on duty. There were union members upstairs in the clubroom. The deceased discussed office records in the outer office with Miss Jadrych for about ten or fifteen minutes and then went upstairs to his office. Miss Harrison testified that shortly afterward she heard two shots and almost immediately she saw the defendant whom she had seen on several occasions come down the stairs, run through the office and out of the premises. She said she saw nothing in his hand. Subsequently, she observed the body of the decedent, lying face down, on the landing on top of the stairs.

Miss Jadrych testified that at 2:00 p. m., while she was talking to the deceased, the defendant whom she knew came through the reception room and walked up the stairs. She said that ten or fifteen minutes later she heard two shots and then she saw the defendant walking fast out of the office.

Francis Beller, a union member who knew the deceased, and the defendant who was also a union member, testified that at 2:80 p. m. he was in the clubroom and heard a muffled voice coming from the officers’ office pleading, “Oh no, no. Please no” followed by a shot. He said he saw the defendant come from the officers’ office to the doorway of the clubroom and he saw a gun in the defendant’s hand. He said that when the defendant fired a shot into the clubroom ceiling he grabbed a cushion to hide his face. He then saw the deceased come out of his office mortally wounded.

John Sarnowski, the arresting and investigating officer, testified that he and another officer came to the premises about 2:45 p. m. He observed a bullet hole in the chest of the deceased and recovered a bullet from the ceiling of the clubroom. Upon receiving information, he went to the security office of the Morrison Hotel about 3:30 p. m. where he arrested the defendant who was with Mr. Rourke, the hotel’s security agent. Rourke informed Sarnowski that the defendant told him there was a shooting at the Bartender’s Union. He testified to four oral inculpatory statements made to him by the defendant, including a statement that he never owned a gun. He said at 9:00 p. m. he questioned a Mr. Armstrong in the presence of the defendant and that Armstrong told him he had seen the defendant with a gun.

Raymond Armstrong, a union member, testified that six weeks prior to the shooting the defendant came to his place of employment with a pistol wrapped in a handkerchief and asked him to hold it for him. He said he put it in his walk-in icebox and the next day the defendant came back and he returned the gun to him.

Cornelius Rourke, testifying for the defense, stated that he was the security officer for the Morrison Hotel and that on September 29th, at 2:80 p. m., the defendant, whom he knew, came in his office in a hysterical condition and said, “Chief, I’m in trouble, I need some help.” The defendant told him that he had been present at a shooting in the Bartender’s Union and was afraid that if the police caught him they would beat him. The defendant denied he did the shooting or that he had a gun. Rourke said he called the police and the defendant was arrested.

The defendant took the stand and testified that he is an extra bartender and a union member. He said he went to the clubroom about 1:30 p. m. on September 29th. About 2:15 or 2:30 p. m., the deceased motioned to him to come into his office. He testified that they were alone and the deceased said, “I hate to do this but I am going to order you out of town. I said, give me a couple of weeks’ work.” He testified further that the deceased raised his voice very loud and said, “I said to get out of town and get out tonight.” All of a sudden he said á shot was fired, he got scared and made for the door and as he started down the stairs another shot was fired and he ran out of the premises and went to the Morrison Hotel. He said he didn’t know who fired the shots.

The defendant contends that reasonable doubt exists as to his guilt because Francis Beller, in his first statement to the police, said that he only saw the defendant before the shooting. He argues that two weeks later Beller changed his story and subsequently testified at the trial that he saw the defendant come out of the office after he heard a shot and fire the second bullet into the ceiling and therefore, the witness was impeached and his testimony was unbelievable.

On direct examination Beller admitted that in his first statement to the police he left out the identification of the defendant. He explained that he didn’t want to get involved until he had consulted with his wife and friends. He said that two weeks after making the first statement he contacted the police and “I told the police everything I told the court here today.”

Where the issue is the credibility of a witness, a reviewing court will not substitute its judgment for that of the trial court unless the evidence was unsatisfactory, improbable or insufficient to support the judgment. People v. West, 15 Ill2d 171, 154 NE2d 286. Under the circumstances of the case at bar, the determination of the credibility of Beller’s testimony and the weight to be accorded to his testimony was committed to the trial judge and we see no reason to disturb that determination.

The defendant further argues that reasonable doubt exists because the defendant could not have made certain inculpatory admissions as alleged by Officer Sarnowski. He first charges that Sarnowski’s testimony concerning a conversation he had with the defendant as they left the hotel is refuted and impeached by Rourke’s testimony that he did not see Sarnowski talk to the defendant as they were leaving the hotel. We find this contention to be without foundation as Rourke also testified that a conversation could have taken place when he was not present and Sarnowski testified that when the conversation took place, “Mr. Rourke was not present. We were in the process of removing him [the defendant] from the Morrison Hotel enroute to the First District [Police Station].”

We also find no merit to defendant’s contention that Officer Sarnowski’s testimony as to another conversation with the defendant is contradicted and impeached by his own later testimony. The defendant further contends the inculpatory oral admissions were not made by him and directs our attention to three other contradictory instances of the same nature in the testimony of Officer Sarnowski. We have examined the record and considered these contentions and it suffices to say that we find them also without merit.

Defendant’s final contention is that where the defendant denies making oral admissions which are relied on by the State it is incumbent upon the State to produce all witnesses to such admissions, citing People v. DiVito, 66 Ill App2d 282, 214 NE2d 320 and People v. Johnson, 31 Ill2d 321, 201 NE2d 367. In DiVito, the court reversed a robbery conviction by force. There, Bures, the complaining witness, testified that he and one William Orlach, were in his apartment, when two men came in after ringing the doorbell, struck Orlach in the eye, choked him and ransacked his apartment. Bures did not identify the defendant prior to or at the trial. Fingerprints taken by police officers established a fingerprint of one thumb taken from a metal box in the apartment to be identical with defendant’s thumb. The defendant denied that he committed the robbery and testified that he had been in the complainant’s apartment at a time prior to the robbery and at the invitation of Bures. In addition to not being satisfied with other circumstances either brought out or not brought out by the evidence, the Appellate Court noted that although Orlach was in the apartment during the entire one hour while the robbery was committed yet he was not called as a witness. The court commented that although Orlach gave the police officers his address he was not called as a witness and did not testify at the trial and went on to say “[t]he inference might well be that Orlach had seen the robbers and would have testified that the defendant was not one of them.” In Johnson witnesses were not brought forward to establish an essential element of the charge. These cases are distinguishable on the facts from the instant case. Officer Sarnowski testified to oral admissions and the testimony of the other officers would have merely been cumulative and furthermore they were listed as witnesses and easily available to the defendant.

It is uncontradicted that the defendant was alone in the presence of the deceased before the first shot was fired. Defendant denies killing the deceased, making any statement to Sarnowski and having a gun at the time, but did not dispute Armstrong’s testimony that he had possessed a gun. Miss Harrison and Miss Jadrych testified they heard shots and saw the defendant run out of the office area. Mr. Beller testified, at the trial, that after he heard a shot coming from the office he then saw the defendant walk out of the office area and fire a shot into the clubroom ceiling before fleeing.

Where a cause is tried without a jury the law commits to the trial judge the determination of the credibility of the witnesses and the weight to be given their testimony. Where the evidence is merely conflicting, this court will not substitute its judgment for that of the trier of fact who heard the witnesses. People v. Thornton, 26 Ill2d 218, 222, 186 NE2d 239.

We are of the opinion that the evidence in the instant case was sufficient to justify the trial judge’s determination that the defendant’s guilt was established beyond a reasonable doubt.

The defendant, in the alternative, prays for reduction of sentence under the power given to us by Ill Rev Stats 1963, c 38, § 121-9. In our opinion, no lawful justification, circumstances or excuse, appear in the record to justify the exercise of that authority. The sentence imposed by the trial judge was within the limits imposed by statute and we are reluctant, under the circumstances, to interfere with the discretion vested in the trial judge where the sentence is within the statutory range. People v. Calhoun, 22 Ill2d 31, 174 NE2d 166.

For the reasons given the judgment and sentence of the Criminal Division of the Circuit Court is affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


author: MR. PRESIDING JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Walter Radford, Otherwise Called William Rowe (Impleaded), Defendant-Appellant.
    Gen. No. 50,877.
    First District, First Division.
    September 25, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Carolyn Jaffe and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Truman Larrey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

In a two-count indictment, defendant, Walter Radford, John Harrell, and Wilson Thomas, Jr. were charged with theft and conspiracy to commit a theft. Both Harrell and Thomas testified for the State, and a jury found defendant Radford guilty of both charges. He was sentenced to a term of 2 to 10 years on the theft count and 2 to 5 years on the conspiracy count.

In sum, Radford initiated a conspiracy with Harrell and Thomas to collect damages for self-inflicted injuries. Harrell broke the arm of Thomas and then pushed Thomas into the side of a moving automobile. Thomas received the sum of $3,000 in settlement of his fraudulent claim.

On appeal defendant contends: (1) He was convicted and sentenced both for theft and for conspiracy to commit the same theft, contrary to controlling Illinois law. (2) He was prejudiced when the trial court permitted Wilson Thomas, Jr. to display to the jury a scar which allegedly resulted from the alleged breaking of his arm. (3) He was prejudiced when a documentary exhibit of testimonial nature was sent to the jury room in violation of Illinois law. (4) He was prejudiced by the prosecutor’s closing argument which called attention to his failure to testify, in violation of his constitutional rights. (5) He was sentenced upon conviction on Count I for an offense which was not charged in the indictment.

Harrell, as a witness for the State, related the details of the scheme proposed by Radford in January, 1963. On March 22, 1963, Harrell, at defendant’s direction, broke Thomas’ arm by placing it on an ironing board and hitting it with an automobile axle, and, at defendant’s direction, Harrell pushed Thomas into a passing car. Thomas was taken to a hospital, and Radford brought a lawyer to see Thomas and represent him in his proposed claim for damages.

Thomas, as a witness for the State, testified as to the initiation of the scheme, the breaking of his arm, his unsuccessful attempt to dive in front of a car, and that at the signal of Radford, Harrell pushed him into a car, and he was taken to a hospital. He testified that his arm was operated on and, over objection, he was permitted to exhibit the scar to the jury. Thomas also told about his $3,000 settlement, of which $1,000 was paid to his attorneys. He received a net check for $2,000, which he and Radford cashed at a currency exchange. He gave Radford $1,200, and he kept $800.

The State’s witnesses also included an investigator and a claim superintendent of State Farm Insurance. They related the settlement negotiations and the payment of $3,000 for a release. The checks were received in evidence.

The defendant did not testify but presented one witness, who testified that he had been the general manager of a Ford agency in March, 1963, and defendant Radford had been employed by him to repossess cars. Radford repossessed a car owned by John Harrell, and Harrell came to the agency and was very angry and told defendant Radford that he would get even with him.

The State does not contest defendant’s contention that only one judgment of conviction and sentence should have been entered here. Therefore, we consider first defendant’s contention that he was prejudiced when the trial court permitted Thomas to display to the jury the scar he allegedly acquired as a result of the breaking of his arm. Defendant asserts this constituted prejudicial and reversible error. Defendant’s authorities include People v. Nickolopoulos, 25 Ill2d 451, 185 NE2d 209 (1962), where the defendant was charged with assault with intent to commit murder. There, the Supreme Court held that evidence of blood on the victim’s clothing and evidence of the extent of the victim’s injuries was irrelevant and improper and of such a nature as to be highly prejudicial to the defendant.

The State contends that the extent of Thomas’ wound was relevant, since the nature and location of the breaking of the arm might be significant in determining whether or not the breaking of the arm was an act in furtherance of the conspiracy to commit theft. It was evidence which tended directly to show that the accused was guilty of the offense of conspiracy.

We conclude that the exhibition of the scar on the arm of Thomas was not improper. Its relevance as evidence of an act in furtherance of a conspiracy to commit theft was a matter for the sound discretion of the court, and we fail to see that it was prejudicial to defendant in view of the testimony as to how the scar was brought about. Also, see People v. Cunningham, 73 Ill App2d 357, 218 NE2d 827 (1966); People v. Cohn, 358 Ill 326, 193 NE 150 (1934).

Considered next is defendant’s contention that defendant was prejudiced when his statement to an insurance company representative was sent to the jury room during its deliberations. Defendant argues that it was a direct violation of the explicit command of People v. Spranger, 314 Ill 602, 145 NE 706 (1924), that a testimonial exhibit must not be sent to the jury room. The question of whether exhibits received in evidence and read to the jury may be taken to the jury room is within the sound discretion of the trial court. We are of the opinion that no abuse of discretion or prejudice is shown here. People v. Somerville, 71 Ill App2d 381, 219 NE2d 116 (1966); People v. Dixon, 75 Ill App2d 77, 221 NE2d 35 (1966).

Defendant next contends that in the closing argument, the prosecutor commented upon defendant’s failure to testify. The record shows that the prosecutor on a number of occasions stated, “the testimony is uncontradicted . . or “it is not contradicted or rebutted.” Defendant asserts, “The prosecutor’s comments mentioned evidence presumably within the defendant’s knowledge, with the implication that if these items of evidence were capable of being rebutted or contradicted, it was up to the defendant to take the stand and rebut or contradict them. Thus was his failure to testify called to the jury’s attention.”

Comments on defendant’s neglect to testify are improper (Ill Rev Stats 1965, c 38, § 155-1), and a judgment of conviction may be reversed if such a comment is made. (People v. Cheney, 405 Ill 258, 90 NE2d 783 (1950).) However, we believe the instant remarks come within the guidelines of People v. Norman, 28 Ill2d 77, 190 NE2d 819 (1963), where the court said (p 81):

“This court has held that a prosecutor could properly call the attention of the jury to the fact that the State’s evidence was uncontradicted even though the circumstances were such that the defendant was the only person who could have denied the People’s evidence.”

We find no error here. Furthermore, these statements were not objected to by the defendant at the time of the trial. See People v. Donald, 29 Ill2d 283, 194 NE2d 227 (1963).

Finally, defendant contends that he was indicted for petty theft under Count I in the indictment but was sentenced, upon conviction, for grand theft. Cited is People v. Lott, 24 Ill2d 188, 181 NE2d 112 (1962), where it is said (p 191):

“It is reversible error for the trial court to find the defendant guilty of a crime for which he was not indicted.”

Defendant points out that Count I of the indictment stated that the defendant “knowingly obtained unauthorized control over one hundred fifty dollars . . . .” From this language, defendant argues, “The only offense charged in Count I of the indictment is petty theft. To sentence the defendant for grand theft upon conviction of Count I therefore violates the specific command of the Supreme Court in the Lott case.”

The State points out that Count II included the language “to commit the offense of theft of property in excess of $150.00 in value . . . .” The State argues that the two-count indictment clearly charged the defendant with the theft of property with a value in excess of $150 and cites People v. Kamsler, 67 Ill App2d 33, 214 NE2d 562 (1966), where the court said (p 41):

“Furthermore, in assessing whether an indictment meets the test of reasonable certainty, all the counts of the indictment may be considered. . . . Four counts of the indictment were available on arraignment to inform defendant of the charge against him. The fact that judgment was not entered on the conspiracy count does not eliminate that count from providing defendant with information of the charge against him. The indictment taken as a whole stated the offense in the language of the Statute and is sufficient.”

The foregoing pronouncements apply here. We hold there was no substantial variance between the proof and the indictment. The counts in the indictment were sufficient to enable the defendant to prepare his defense and to plead any judgment in bar of a subsequent prosecution for the same offense. (People v. Beeftink, 21 Ill2d 282, 287, 171 NE2d 632 (1961).) Defendant was properly sentenced for grand theft on Count I.

As to sentencing, the State concedes that the defendant should not have been sentenced on both the inchoate and the principal offense (Ill Rev Stats 1963, c 38, § 8-5). In the instant case, conspiracy was the inchoate and theft was the principal offense, and only one sentence should have been imposed for the greater offense. See People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299 (1963). Therefore, it follows that the judgment and sentence imposed on the charge of conspiracy to commit theft must be set aside.

We note that at the aggravation and mitigation hearing, the State showed that defendant Radford was on probation for two 5-year sentences for theft. Therefore, we see no reason to reduce the theft sentence. The judgment of the Circuit Court of Cook County upon the offense of theft is affirmed, and its judgment upon the charge of conspiracy to commit a theft is reversed.

Affirmed in part and reversed in part.

BURMAN and ADESKO, JJ., concur.


author: JUSTICE BURMAN.

text:
    Melvin A. Pfaelzer, Plaintiff-Appellee, v. Florence Kostner, Defendant-Appellant.
    Gen. No. 51,452.
    First District, First Division.
    September 25, 1967.
    Joseph O. Kostner, of Chicago, for appellant;
    Muller Davis, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellee.
   Opinion by

JUSTICE BURMAN.

Not to be published

in full.