text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard Rojas, Defendant-Appellant.
    Gen. No. 65-44.
    Second District.
    March 21, 1966.

      Melvin L. Schlueter, of Rockford, for appellant.
    William R. Nash, State’s Attorney, and Alfred W. Cow-an, Jr., Assistant State’s Attorney, both of Rockford, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

The defendant prosecutes this appeal following a jury verdict finding him guilty of theft of property exceeding One Hundred Fifty ($150) Dollars in value, to-wit: A certain 1964 Chevrolet automobile.

Early on the morning of August 22, 1964, one James Thiede parked his 1964 Chevrolet automobile in an alley in downtown Rockford; he left the keys in the ignition and crossed the street to a restaurant to pick up a carryout pizza. As he was leaving the restaurant, Thiede saw his car being driven away, shouted “Stop,” but the car continued on. He thereupon called the police on a police telephone nearby and gave them a description of the car. A few minutes later patrol officers, Peterson and Caldwell, received the stolen vehicle report over their patrol car radio. Shortly thereafter, the officers noticed a car matching the description of the stolen vehicle on the west side of Rockford; the officers followed the car to the east side and stopped it near the easterly city limits. The defendant got out of the car, and when asked for a driver’s license could produce none. When inquiry was made as to the ownership of the vehicle, the defendant first said it was his and then a few minutes later said that the car belonged to a friend.

The officers thereupon took the defendant to the police station, booked him on the charge of no driver’s license, and then turned him over to members of the detective bureau. The officers then took the owner of the vehicle, Thiede, before a magistrate where he signed a complaint against the defendant for grand theft, upon which the magistrate issued an arrest warrant for the defendant. The officers then returned to the station where one of them read the warrant to the defendant in jail, and they both then returned to their normal patrol duties.

At approximately 10:00 a. m., on the same morning, within approximately eight hours of his arrest, the defendant gave a written statement to certain Rockford detectives, wherein he admitted that he had stolen the Thiede vehicle.

The defense was to the effect that on the evening before and the early morning in question, the defendant had been drinking heavily after suffering a romantic setback; that he left a certain tavern at approximately 1:00 o’clock a. m., and proceeded some distance on foot until he was stopped by an unknown person who identified himself as Carl; that after conversation with this unknown person, Carl, as to where the defendant was going and how he was going to get there, Carl offered to lend his car to the defendant for Five ($5) Dollars; that after paying the Five ($5) Dollars, the defendant got in and drove off the supposed leased vehicle only to find out when he was stopped that it did not belong to the unknown person, Carl.

It is contended on this appeal that error was committed by the improper manner in which the defendant was impeached by his prior convictions of infamous crimes, that the defendant’s confession was inadmissible and that the defendant was prejudiced by certain remarks of the trial judge.

After testifying in his own behalf, the defendant was cross-examined concerning his prior convictions for infamous crimes. The cross-examination in this respect consisted of nothing more than the defendant being asked whether he had been convicted of burglary in the state of Arizona in 1949 and of armed robbery in Cook County, Illinois, in 1958. To both of these inquiries he answered affirmatively. At the conclusion of the defendant’s case, the court received in evidence an authenticated copy of the record of conviction of the defendant for burglary in Arizona and that for armed robbery in Cook County, Illinois.

In light of the traditional Illinois view that such convictions of the accused are provable only by the record and cannot be brought out on cross-examination, what is here assigned as error is a trial procedure that accomplishes such proof by both methods. This court has recently considered this question in the case of People v. Smith, 63 Ill App2d 369, 381, 211 NE2d 456, (1965), where, after considering the history of this procedure before the reviewing courts of this state, we concluded that in circumstances such as are here present it was not error to cross-examine the defendant and then introduce the record. For the reasons suggested in the Smith case, we again wish to be understood as not condoning the trial procedure here employed, and merely hold that in the instant case it did not constitute reversible error. We are further of the opinion that in order to encourage a defendant to take the stand, because the State has ample opportunity to obtain the record, and because of the possibility of the cross-examination creating prejudice, the accepted procedure of introducing the record only should be followed.

The defendant next contends that his confession was inadmissible. The assigned reasons are that it was given to two detectives approximately eight hours after his arrest, before he had been taken before a magistrate, while without counsel, and before he was first advised of his right to counsel. Insofar as here pertinent, the facts disclose that the defendant was found to be operating the stolen vehicle within a matter of minutes after the report was received; that he had no driver’s license and gave conflicting stories as to the ownership of the vehicle. He was taken to the police station, booked on the charge of no driver’s license, and held in custody while the owner was taken before a magistrate for purposes of signing a complaint. Immediately after the arrest a warrant was issued by the magistrate and personally served on the defendant. Within approximately eight hours after his arrest, he gave an oral statement and then signed a written statement, wherein he admitted the theft of the vehicle. The confession was given of his own free will and accord, no threats or promises had been made to or against him, and he had been advised that the statement could be used in court against him. The facts further show that the defendant was arrested at approximately 1:00 o’clock a. m., on a Saturday morning and that the owner of the vehicle was taken to the home of the magistrate to sign the complaint. It is against this factual backdrop, then, that the defendant urges the inadmissibility of the confession.

The determinative factor insofar as the admissibility of a confession is concerned is its voluntariness. Voluntariness in turn can be concerned with many factors. Here, the defendant is only concerned with the failure to affirmatively advise him of his right to counsel and the eliciting of the confession prior to taking him before the magistrate.

Considering the admitted failure to affirmatively advise the defendant of his right to counsel and to remain silent before procuring a confession, the Supreme Court of this state has repeated!y held that absent a request for counsel such failure does not render a confession inadmissible which is otherwise voluntary. People v. Hartgraves, 31 Ill2d 375, 379, 202 NE2d 33 (1964); People v. Lewis, 32 Ill2d 391, 393, 207 NE2d 65 (1965). The record before us is devoid of even so much as an assertion that the defendant requested and was denied counsel, and accordingly, the error urged is without merit.

Next, considering the obtaining of the confession some eight hours after being taken into custody and before being taken before the magistrate, what the defendant, in effect, complains of is that he was not taken without unnecessary delay before a judge, that this delay constituted an illegal detention, and that a confession given during a period of such detention is per se inadmissible. Considering all of the attendant circumstances, including the hour and day of the arrest, we cannot agree that the confession was derived during a period of illegal or unreasonable detention. Further, even if we were to assume that the confession here was secured during a period of unreasonable or illegal detention, this alone does not render it inadmissible. And, further, even if the defendant contends that there was illegal or unreasonable detention after the confession was made, this will not relate back so as to render the confession inadmissible. People v. Jackson, 23 Ill2d 274, 277, 178 NE2d 299 (1961); People v. Palmer, 31 Ill2d 58, 68, 198 NE2d 839 (1964).

We are satisfied that the defendant’s contention of illegal or unreasonable detention is unfounded. We further find no facts or circumstances in connection with the complained of period of detention which render the confession inadmissible.

The defendant lastly complains of a statement made by the trial judge in ruling upon an objection of the State and contends that this constituted an expression of the court’s opinion as to the validity of the defendant’s defense. In his opening argument, counsel for the defendant stated that the evidence would show that the defendant was very much in love with a certain young lady who had recently jilted him. At that point the State objected on the grounds that this was immaterial. In sustaining the objection, the court stated: “The Court will not permit you to put in evidence of his trouble with his girl friend.” To which the counsel for the defendant replied: “This goes to the very heart of the intent.” To which the court in turn replied: “It does not go to the heart of this case. I will not permit evidence on that subject.”

It appears obvious to us that not only was the trial court’s ruling correct, but, taken in context, it appears that the first statement was merely explanatory of the ruling and the second responsive to and elicited by counsel for the defendant. The fact that the defendant was a jilted lover has no bearing on his intent when the vehicle was taken. If anything, such an argument would appear to suggest that the defendant knowingly stole the vehicle intending thereby to punish himself and cause his former girl friend to feel sorry for him. The trial court did not err in its ruling in this respect.

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

Judgment affirmed.

ABRAHAMSON and DAVIS, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MORAN.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Shelton and William Downey, Defendants-Appellants.
    Gen. No. 65-74.
    Second District.
    March 21, 1966.
    Knight, Ingrassia & Schirger, of Rockford, and George H. Schirmer, of Freeport, for appellants; Dexter A. Knowlton, State’s Attorney, of Freeport, for appellee.
   Opinion by

PRESIDING JUSTICE MORAN.

Not to be published in full.


author: MR. JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Frank J. Vlcek, et al., Defendants-Appellees.
    Gen. No. 65-98.
    Second District.
    March 21, 1966.
    Rehearing denied April 28, 1966.

      William V. Hopf, State’s Attorney, and Edward Van de Houten, Jr., Assistant State’s Attorney, both of Wheaton, for appellant.
    Edward F. Zahour, and Herbert M. Wetzel, both of Chicago, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal by the People of the State of Illinois from an order of the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, entered June 8, 1965, which quashed the indictments filed December 14, 1964, against the defendants herein. The motion to quash recited, and the People admitted, that the defendants were previously indicted on July 21, 1964, on the same charges; that such indictments were also quashed on defendants’ motion; and that thereafter, said defendants were reindicted on December 14,1964.

The order appealed from stated:

“It Is Ordered, Considered And Adjudged, and the court thereupon finds that the indictment aforesaid failing to comply with Sec 17, Chap 78 Ill Rev Stats (1961) and Sub Sec (c) Sec 112-4, Chap 38, Ill Rev Stats (1961) as jurisdictional requiring the foreman of the Grand Jury to endorse the indictment returned, as aforesaid, therefore:
“The defendants’ motion to quash and suppress the indictment aforesaid is sustained, and so ordered nunc pro tunc the 8th day of June, 1965.”

Section 112 of chapter 38 was repealed in 1933 and no section of said chapter bearing this number was reenacted upon the adoption of the Criminal Code of 1963. Section 112-4 (c) as then adopted, provides:

“(c) If 12 grand jurors concur that the evidence before them constitutes probable cause that a person has committed an offense the State’s Attorney shall prepare a Bill of Indictment charging that person with such offense. The foreman shall sign each Bill of Indictment which shall be returned in open court.”

However, defendants’ motion to quash asserted grounds other than improper endorsement of the indictment by the foreman of the Grand Jury, as the basis for the relief sought.

The defendants argue on appeal, and the People deny, that sections 111-3 (b) and 112-4 (c) of the Criminal Code (Ill Rev Stats 1963, c 38, pars 111-3 (b) and 112-4 (c)) require the foreman of the grand jury to sign at the conclusion of the charging portion of the indictment, and in addition thereto, exact that he endorse the indictment as “A true bill,” pursuant to section 17 of an Act concerning jurors (Ill Rev Stats 1963, c 78, par 17); and that the signature of the foreman on the reverse side of the indictment over the words, “A True Bill,” is not sufficient to comply with the aforesaid statutes. This identical contention was decided adversely to the defendants by this Court on an appeal from DuPage County, in People v. Faciano, 66 Ill App2d 431, 213 NE2d 587 (2nd Dist 1966).

The defendants also urge that the order was proper in that the State’s Attorney breached his statutory duty under the provisions of Ill Rev Stats 1963, c 38, secs 106-1 and 106-2, in denying defendants’ request that they be permitted to appear before the Grand Jury as witnesses. These sections pertain to the immunity of witnesses; and neither the sections relied upon, nor any cases which have been directed to our attention, support the defendants’ contention. However, the Committee Comments on section 112-6 of the Criminal Code (Ill Rev Stats 1963, c 38, par 112-6), which deals with the secrecy of grand jury proceedings, refute such contention in the following words:

“A prospective defendant has no right to testify before the grand jury, nor has anyone else. In fact, inquiry into the finding of the indictment is prevented in order to preserve the secrecy of the proceedings. The defendant has his chance at the trial. (See Gitchell v. People, 146 Ill 175, 33 NE 757 (1893).)” (SHA c 38, § 112-6, p 276.)

Also see: United States v. Thompson, 144 F2d 604, 605, 606 (CCA 2 1944), an opinion by Judge Learned Hand; and Duke v. United States, 90 F2d 840, 841 (CCA 4 1937).

The defendants also contend that they were not properly before the court, since the court acquired jurisdiction over them through the procedure of indictment rather than by preliminary examinations under sections 109-1 and 109-3 of the Criminal Code. (Ill Rev Stats 1963, c 38, pars 109-1 and 109-3.) However, we find no impairment of the court’s jurisdiction by virtue of the manner in which the defendants were brought before the court.

The defendants also argue that the indictments were properly quashed because the defendants were not tried within four months of incarceration pursuant to section 103-5(a), (b), (c) and (d) of the Criminal Code (Ill Rev Stats 1963, c 38, par 103-5(a), (b), (c) and (d)). The record reveals that the defendants promptly filed motions to quash the indictments and were promptly admitted to bail on both the original indictments and the reindictments; and that they never made a demand for trial. Consequently, under section 103-5 (a) and (b), the rule which defendants seek to invoke is inapplicable.

The defendants also urge that the order quashing the original indictments is “res judicata and estoppel in bar” as to the offenses charged in the subsequent indictments. Section 114-1 (e) of the Criminal Code (Ill Rev Stats 1963, c 38, par 114-1 (e)), provides:

“ (e) Dismissal of the charge upon the grounds set forth in subsections (a) (4) through (a) (10) of this Section shall not prevent the return of the new indictment or the filing of a new charge and upon such dismissal the court may order that the defendant be held in custody or if he had been previously released on bail that his bail be continued for a specified time pending the return of a new indictment or the filing of a new charge.”

The order quashing the original, as well as the subsequent indictments, found that they were not properly endorsed by the foreman of the grand jury. Such defect would fall within sec 114-1 (a) (5) of the Criminal Code, and under the provisions of subsection (e) thereof, a new indictment could be returned. The Committee Comments on subsection (e) (SHA c 38, § 114-1), at page 350, state:

“Subsection (e) indicates that subsections (1), (2) and (3) are situations in which trial would be effectively barred in all future cases as well as the present case. Subsections (4) through (10) on the other hand are more in the nature of dilatory pleas and are merely delaying grounds. The grounds therein may be later corrected and new charges filed.”

The defendants’ argument in this respect cannot be sustained.

The defendants have urged other contentions to sustain the order of the trial court which we have examined and have not discussed, in that they, also, are without merit. Consequently, the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.

MORAN, P. J. and ABRAHAMSON, J., concur.


author: CRAVEN, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert L. Fosdick, Defendant-Appellant.
    Gen. No. 10,621.
    Fourth District.
    March 22, 1966.
    Robert T. Trimpe, of Champaign, for appellant.

      John J. Bresee, State’s Attorney, of Urbana, for appellee.
   CRAVEN, J.

The defendant was convicted of rape in a bench trial in the circuit court of Champaign County. A sentence of not less than six nor more than twenty years was imposed, the sentence to run concurrently with another sentence imposed in De Witt County, Illinois. This appeal presents no question as to guilt or innocence but only the question of whether the trial court erred' in denying a motion to dismiss and for discharge, alleging the denial of the constitutional right to a speedy trial and violation of the provisions of § 103-5 of c 38, Ill Rev Stats 1963.

A determination of the issue presented necessitates a recitation, chronologically, of the events relating to custody and trial. The offense here charged was on December 20, 1963. On January 7, 1964, a criminal complaint charging the offense was filed in the circuit court of Champaign County. At or about that time the defendant was in the custody of De Witt County, Illinois, authorities on other charges. On February 16, 1964, the defendant escaped from the De Witt County authorities.

On March 11, 1964, the defendant was apprehended in Champaign County and lodged in the Champaign County jail. On the following day he was taken before a magistrate in Champaign County and a copy of the complaint was given to the defendant, and the public defender appointed to represent him.

On the next day, March 13, 1964, the January 7, 1964, complaint was dismissed and on that same day another complaint was filed alleging the same charge based upon the same conduct. Another warrant was issued that day but not served on the defendant. The defendant was taken to De Witt County on March 13, 1964, and there tried and convicted of other charges, sentenced to the Illinois State Penitentiary, and on April 21, 1964, incarcerated in the Illinois State Penitentiary. The record does not establish the specific chronology of events of March 13,1964.

A “few days” after the defendant was surrendered to De Witt County authorities, a detainer or hold order was placed with De Witt County authorities, and the record establishes that this detainer or hold order followed the defendant to the penitentiary.

On April 7, 1964, the defendant was indicted by the grand jury of Champaign County on the same offense as the one charged on January 7 and dismissed and refiled on March 13, both in 1964. On June 22, 1964, the defendant was returned to Champaign County pursuant to a writ of habeas corpus ad prosequendum, arraigned and the cause set for jury trial for the week commencing July 6, 1964. The public defender was again appointed to represent the defendant.

The case was not tried during the week of July 6, 1964. Affidavits by counsel vary as to the understanding of the reason for the case not being tried. In any event, on July 9, 1964, the record shows that the defendant appeared in court with the public defender, waived trial by jury, and a jury waiver was signed and filed. On that day, on motion by the state’s attorney, the case was set as a nonjury matter for July 15,1964.

On July 14, 1964, a motion to dismiss was filed alleging the constitutional and statutory grounds above set forth. This motion was denied and the case was ultimately tried on October 14,1964.

Section 103-5(a) of c 38, Ill Rev Stats 1963, provides:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.”

The Committee Comments contained in the annotated volume relating to this section succinctly state the history of this provision and its function of implementing the constitutional right of an accused to a speedy trial. It is there stated:

“Except for some revision in the language used, and the separation of the various elements of the right into separate subsections, this section codifies Ill Rev Stats 1961, ch 38, . . . [sec] 748, and the Illinois decisions construing it. While Article II, Section 9 of the Illinois Constitution guarantees the accused a speedy trial, it specifies no time. The four-months period provided in old section 748 and continued in this section as 120 days merely goes to the method of enforcing the constitutional right. (People v. Morris, 3 Ill.2d 437, 121 NE2d 810 (1954).)”. . .

Here the defendant was originally in custody on January 7, 1964. We agree with the contention of the State that his escape and status as a fugitive preclude the defendant from invoking the aid either of the statute or the constitution for the time that he was in the status of a fugitive. Thus, the statute did not begin to run until the defendant was again apprehended — March 11, 1964.

On the latter date the defendant was in custody in the Champaign County jail. He was there being held on a federal fugitive warrant, De Witt County charges and the instant charge in its original form. The subsequent dismissal and refiling of the same charge does not operate to suspend the statute or to change the fact that the defendant was in custody within the meaning and purview of § 103-5 (a) of c 38, Ill Rev Stats 1963. People v. Patheal, 27 Ill2d 269, 189 NE2d 309.

Thus, the record in this case shows that the defendant was continuously in custody in this State from March 11, 1964, to July 14, 1964, and the instant charge was pending and untried. Here, unlike the facts in People v. Jones, 33 Ill2d 357, 211 NE2d 261, and in People v. Lowe, 61 Ill App2d 262, 210 NE2d 31, there is a showing of arrest, arraignment and other prosecutive process on the present charge — and the charge was pending during the period of incarceration.

In People v. Benson, 19 Ill2d 50, 53, 54 (166 NE2d 80, 82), the Supreme Court stated that the predecessor section of the present statute was to be liberally construed:

“This court has held that the statute is to be construed liberally since it is in conservation of the liberty of a citizen, (People ex rel. Woodruff v. Matson, 129 Ill 591 [22 NE 456],) that its salutary provisions cannot be nullified by technical evasions, (People v. House, 10 Ill2d 556 [141 NE2d 12],) and that its provisions are mandatory and confer upon an accused a substantial and absolute right under the constitution.” (Citations omitted.)

The same rules of construction are applicable to the statute in its present form, for its purpose and effect remain unchanged.

In the recent case of People v. Moriarity, 33 Ill2d 606 (213 NE2d 516), the Supreme Court held that a ten-month delay in obtaining custody of a defendant confined in an Indiana reformatory, against whom charges were pending in Illinois, was not arbitrary or oppressive. The delay there was contrasted with an eight-year delay in People v. Bryarly, 23 Ill2d 313 (178 NE2d 326). In the course of the opinion in Moriarity, Mr. Justice House contrasts imprisonment in Illinois with confinement in another State. In the latter circumstance, Illinois custody would be dependent upon proceedings for extradition. This, of course, is not true as to Illinois incarceration.

In People v. Swartz, 21 Ill2d 277 (171 NE2d 784), the court held that imprisonment in Milan, Michigan, for a federal offense did not toll the Illinois statute, saying, “. . . the State cannot evade the statute by refusing to prosecute the defendant and by voluntarily relinquishing control of him to the Federal authorities.”

Here the prosecuting authorities had custody of the defendant and relinquished that custody to another county in this State. The pending charge was dismissed and refiled on the date of relinquishment of custody. Hold orders or detainers were lodged with the county and, ultimately, the State authorities. Unlike Bryarly or Moriarity, the defendant was in Illinois and available for prosecution on the instant offense. See People v. Patheal, supra.

It follows, therefore, that the defendant was entitled to discharge upon his motion therefor absent “delay . . . occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.” The record here contains no such delay attributable to the defendant.

Certainly the action of the defendant waiving a jury cannot be held to be delay. Such waiver ordinarily expedites a proceeding rather than causing its delay. The record here has in it affidavits by counsel in support of, and in opposition to, the motion to dismiss as to their understanding of certain conferences in chambers relative to the trial of this case. Neither affidavit establishes delay attributable to the defendant. It is set forth in the affidavit of the assistant state’s attorney that he at no time considered the “four-month rule” to be a problem in this case and that had he considered such problem to exist, the case would have gone to trial on July 6,1964, or July 9,1964.

The affidavit continues to state that in the handling of this case he proceeded on the belief that the public defender was unprepared for trial at any time up to July 15, and that the public defender was raising no issue as to the four-month rule.

We are not prepared to hold that a waiver of a jury trial constitutes a delay within the meaning of the statute. See People v. Tamborski, 415 Ill 466, 114 NE2d 649. Our decision here must be governed by the record as it is before us. In this record we find no action by the defendant or his counsel that can be said to have occasioned delay.

The judgment of the circuit court of Champaign County is reversed.

Judgment reversed.

SMITH, J., concurs.

TRAPP, P. J., dissents.


author: CORYN, P. J.

text:
    Kevin Conway, a Minor, by his Father and Next Friend, Edward Conway, Plaintiff-Appellee, v. Lorraine Tamborini, Defendant-Appellant.
    Gen. No. 65-52.
    Third District.
    March 24, 1966.

      Herbolsheimer & Lannon, of LaSalle, for appellant.
    Kevin D. Kelly, of LaSalle, and William H. Herring, of Peoria, for appellee.
   CORYN, P. J.

In June of 1962 the plaintiff, Kevin Conway, then fourteen years of age, was injured when the bicycle he was riding was struck by an automobile driven by Lorraine Tamborini, defendant. The accident occurred on a gravel road west of Oglesby near the farm where Kevin Conway resided with his parents, Ed and Eloise Conway. Plaintiff was returning home for lunch from a tennis match in Oglesby. The gravel road was approximately thirty feet in width, level and straight. It was a clear day and visibility was good. Both the bicycle and automobile were traveling in a westerly direction, and there was no other traffic on this road at that time.

Kevin Conway testified that he was riding on the right side of the road, about four feet from its north edge, and two hundred feet from his home, when he heard a horn behind him. He looked around and saw the Tamborini car about three hundred feet away, and then moved his bicycle to the extreme right side of the road. He estimated defendant’s speed then to be about fifty miles per hour, and his own about five miles per hour. The next thing he knew he was struck from the rear by defendant’s car. The impact threw him off the bike and forward about twenty feet. He landed in a grassy ditch two feet north of the graveled portion of the road. He was lying on his stomach in the ditch, and felt pain in his hip and back. Mrs. Tamborini helped him to the front seat of her car. Plaintiff stated that he observed skid marks approximately sixty feet in length running from the defendant’s car at an angle to the northeast. The skid marks, where they started, were about nine feet from the right edge of the road. The right front wheel of defendant’s car, when it came to rest, was one foot into the grassy area of the ditch, and the right rear wheel about one foot on the gravel road.

Lorraine Tamborini testified that she was about a block from the boy when she first noticed him, and that at that time he was traveling on the left hand or south side of the road. She took her eyes off the road for a second to check the speedometer. The boy did not turn his bike the first time she honked, but when she honked again, he turned the bicycle toward the right or north side of the road. She stated that this turn was made by him when her automobile was only a few feet away, and that the bicycle was going north, and her car west, when the collision occurred. The left front of the automobile struck the bicycle, breaking the left headlight on the car. Defendant had applied her brakes, and the car had skidded thirty to forty feet prior to the impact, and came to rest in a diagonal position with the right front wheel a few feet in the grassy ditch on the north side of the road.

The jury returned a verdict for the plaintiff in the amount of $10,000, and it is from the judgment on this verdict that defendant appeals.

Defendant argues that it was error to allow Kevin Conway to testify as to the speed of the Tamborini car because of a lack of opportunity to observe this car. The record clearly indicates that the plaintiff had a momentary glance over his shoulder at this automobile when it was three hundred feet to his rear. On cross-examination the boy reiterated his estimate of speed of fifty miles per hour, and freely admitted that it was based on brief look over his shoulder and therefore could be mistaken. Estimates of speed of an automobile at a given time are considered a matter of common observation rather than expert opinion, and therefore persons of ordinary intelligence and means of observation are competent to testify as to the rate of speed of a moving object. The fact that Kevin Conway’s opportunity to observe the Tamborini car was momentary affects the weight, and not the admissibility, of his testimony. Birnbaum v. Kirchner, 337 Ill App 25, 85 NE2d 191.

Policeman Walter White, who arrived at the scene of the accident before the automobile was moved, testified that he measured the automobile skid marks to be thirty feet long. Eloise Conway, plaintiff’s mother, who was at the scene immediately after the accident, estimated these skid marks to be forty to fifty feet long; Mrs. Tamborini estimated them to be thirty to forty feet; and Kevin Conway estimated them to be sixty feet. Ed Conway, plaintiff’s father, testified that he arrived home at 5:00 p. m. on the date of the accident and went to the scene of the accident where he took photographs, and where he measured the skid marks as being sixty feet long. The vehicles had been removed from the scene by this time. Defendant objected to this testimony as being incompetent because these measurements were taken five hours after the accident and by a person who did not view the scene of the accident before the vehicles were removed. There is no indication in the record as to whether any of these measurements or estimates of the length of these skid marks was from the beginning of the marks to the rear wheels of the automobile, or from the beginning of these marks to their end in the grassy ditch. We are of the opinion that the admission of Mr. Conway’s measurements of these skid marks did not constitute reversible error, as this evidence was cumulative in nature.

Dr. John Hackett examined the plaintiff shortly after the accident at his office in Oglesby, and later had him x-rayed at St. Mary’s Hospital. He stated that Kevin complained of soreness in the right thigh and buttocks area, and later complained of pain in his back. These x-rays, according to Dr. Hackett, showed no “fracture or bony pathology.” He reached no conclusions, nor made any final diagnosis, and last saw plaintiff in August of 1962. Defendant had Kevin Conway examined by Dr. Bernard J. Doyle on November 18, 1964. Dr. Doyle found no objective symptoms, and diagnosed plaintiff’s subjective complaints as a strained back, with a resulting loss of strength in the back. He stated he could not determine at that time whether this condition was permanent. The plaintiff’s attorney referred him to Dr. Fred L. Stuttle, who first examined the plaintiff on February 9, 1963. Dr. Stuttle was permitted to testify, over defendant’s objection, about the subjective complaints related to him by plaintiff. He had x-rays taken at this time, and again on the day before he was called to testify herein. Dr. Stuttle, from these x-rays, diagnosed the boy’s injuries as a posterior displacement of the fifth lumbar vertebra with evidence of narrowing of the intervertebral space between the fifth lumbar and first sacral vertebra. He stated that these injuries could have been caused by the collision in question, and that these injuries to the back were permanent. Dr. Stuttle saw the plaintiff on five occasions and prescribed for him a series of strengthening exercises, which the plaintiff testified he regularly performed. Dr. Stuttle also recommended a back brace, diathermy, massage, and injections, but the plaintiff never undertook these treatments. Defendant argues that Dr. Stuttle was an examining physician, and not a treating physician, and therefore he should not have been permitted to testify regarding the plaintiff’s subjective complaints or history of claimed injuries. Both parties agree that a treating physician, as an exception to the hearsay rule, can relate the medical history and subjective symptoms of his patient on the theory that a person will not give false statements to a physician from whom he expects to receive medical aid. An examining physician, that is, a physician to whom a litigant submits himself for physical examination for the purpose of testifying, can testify only to objective symptoms. Jensen v. Elgin, J. & E. Ry. Co., 24 Ill2d 383, 182 NE2d 211; Shell Oil Co. v. Industrial Commission, 2 Ill2d 590, 119 NE2d 224. In the instant case the record establishes that Kevin Conway saw Dr. Stuttle several times over a period of months, and that he daily performed those strengthening exercises prescribed for him by Dr. Stuttle. We are satisfied that there is sufficient evidence to sustain the trial court’s conclusion that plaintiff sought the services of Dr. Stuttle for the purpose of obtaining medical relief, and not solely for the purpose of obtaining Dr. Stuttle’s testimony in this cause.

Defendant argues that the court erred in giving plaintiff’s instructions 15, 16, 11 and 14. Instruction 15 (IPI 10.05) informed the jury that a minor is not to be “held to the same standard of conduct as an adult.” Defendant contends that because a minor, when operating a bicycle upon a public highway in Illinois, is subject to the provisions of the Uniform Act Regulating Traffic on Highways, ch 95%, §§48 through 239, Ill Rev Stats, that said minor is held to the same standard of care as an adult. Defendant cites Betzold v. Erickson, 35 Ill App2d 203, 182 NE2d 342, where a thirteen-year-old boy was operating a pick-up truck; Ryan v. C & D Motor Delivery Co., 38 Ill App2d 18, 186 NE2d 156, where a nineteen year old boy was operating an automobile; and Dawson v. Hoffmann, 43 Ill App2d 17, 192 NE2d 695, where a seventeen year old boy was operating an automobile. In all of these cases the court determined that a minor, when operating a motor vehicle on a public highway, shall be held to the same standard of care as an adult. The rationale of these decisions is that other motorists cannot determine that the operator of an oncoming automobile or truck is a minor, and therefore guard against youthful imprudence, as a motorist could do if the minor was engaged in the usual childhood activities, and that therefore it would be unfair if a minor were not held to the same standard of care as an adult. We do not think that this rule applies here as it is uncontradicted that the plaintiff, a fourteen-year-old boy, was riding his bicycle down a graveled country road about noon on a clear day. The appearance of this boy, with his tennis racket, and riding his bicycle, was notice to the defendant that the person some three hundred feet ahead was a minor, and that defendant should act accordingly.

Instruction 16, paraphrases § 56(a) of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats c 95½, § 153(a)), and instructs the jury to take into consideration a violation of the statute requiring a vehicle when overtaking another in the same direction to pass on the left. We find illogical defendant’s argument that this section of the Uniform Act Regulating Traffic on Highways does not apply when an automobile is passing a bicycle, especially in view of the fact that the defendant submitted his Instruction 3, which was given, and which informed the jury that bicycles were subject to the provisions of said Uniform Act Regulating Traffic on Highways.

Instruction 11 was an issue instruction (IPI 20.01), and defendant contends that those portions of this instruction referring to failure to yield right of way, operating an automobile at a high rate of speed considering the circumstances, and failure to keep a proper lookout were improper, there being no foundation in the evidence for so instructing the jury. The same objection was made to that portion of Instruction 14 (IPI 30.01 and 30.04) referring to possible disability resulting from the injury. We reject this argument as Dr. Stuttle clearly testified that the plaintiff had incurred permanent disability. Also, without a further recitation of the evidence, we are satisfied that the evidence, and inferences therefrom, support the giving of Instruction 11.

The evidence regarding both the liability and damages aspects of this case was conflicting. It is the jury’s function, in such cases, to weigh the evidence, and draw the conclusions as to liability and amount of damages. The jury’s verdict should not be set aside merely because different conclusions could be drawn, or because we might feel other results are more reasonable. Dowler v. New York, C. & St. L. R. Co., 5 Ill2d 125, 125 NE2d 41.

Accordingly, the judgment of the Circuit Court of La Salle County is affirmed.

Affirmed.

ALLOY and STOUDER, JJ., concur.


author: ALLOY, J.

text:
    Grant Park Community Unit District No. 6, Plaintiff-Appellee, v. County Board of School Trustees of Kankakee County, Illinois, and Manteno Community Unit District No. 5, Defendants-Appellants.
    Gen. No. 65-68.
    Third District.
    March 24, 1966.

      Robert F. Reiser, of Manteno, and Edward Drolet, State’s Attorney, of Kankakee, for appellants.
    Eva L. Minor, of Kankakee, for appellee.
   ALLOY, J.

The action from which this appeal comes to us originated in a suit brought by Grant Park Community Unit District No. 6 as an appeal under the Administrative Review Act from a decision of the County Board of School Trustees. The action was based upon the provisions of the 1953 School Code (1953 III Rev Stats, c 122, § 4B-13 and sections following). The County Board ordered an accounting between the plaintiff, Grant Park District and Manteno Community Unit District No. 5. The complaint was filed on June 1, 1956. In April of 1963 the Trial Court found the record incomplete and reversed and remanded the cause to the County Board of School Trustees for the purpose of supplying the answers to certain omissions in the record. A hearing followed on January 22, 1964, and the County Board in April of 1964 made additional findings of fact and again ordered an accounting as previously noted. Plaintiff again appealed to the Circuit Court and the Circuit Court found in favor of plaintiff and held that plaintiff was not required to account. Defendants County Board of School Trustees and the Manteno School District have jointly appealed the decision to this court.

While other facts appear from the record, the significant facts for our consideration involve organization of school districts and annexation of parts of an original school district to other districts. The Manteno Gommunity Unit District No. 5 was organized on December 2, 1950. On July 26, 1954, 12 sections of land from the Sumner School District No. 254 (of a total of 25 sections) were annexed to the Manteno Unit District. Thereafter, the Sumner District operated as a separate school district from July 26,1954, to July 1, 1955, without the 12 sections which had been detached and annexed to the Manteno District. On January 18, 1955, a petition was filed for dissolution of the Sumner District and requesting that the territory be annexed to the Grant Park School District. The petition was granted and such annexation became effective at the end of the current school year on July 1, 1955, in accordance with section 4B-10 of chapter 122, 1953 Illinois Revised Statutes. The Grant Park District to which such annexation was had was at such time Grant Park Community Consolidated School District No. 261. On May 25, 1955, an election was held for the purpose of voting on the proposition of establishing Grant Park Community District No. 6 to include along with other territory, the Sumner District as it then existed (with the 13 sections remaining after detachment of the 12 sections to the Manteno District). The proposition carried and the consolidation became effective on July 1,1955.

Thereafter, on July 5, 1955, the County Board of School Trustees of Kankakee County appointed an appraisal committee for a division of the assets of “former Sumner District No. 254.” This appraisal committee reported on August 1, 1955, finding the value of the Sumner District assets and found that the percentage basis of Average Daily Attendance for pupils in the area attached to Manteno was 39% and the percentage basis for pupils attached to Grant Park was 61%. The distribution of assets as recommended by the appraisal committee was to be made as of July 1, 1954.

During the year that the Sumner District operated after detachment of the 12 sections, it levied taxes on the territory within its boundary and functioned as a separate entity. The original order of the County Board of School Trustees entered on April 2, 1968, which was reversed and remanded in the Circuit Court, making certain specific findings, was supplemented by the County Board order of April 2, 1964. It found that Grant Park Grade School District No. 261 became a part of Grant Park Unit District No. 6 by inclusion therein at the time of the creation of such district; and that Grant Park Community Unit District No. 6 was formed by election on May 21, 1955. The County Board also ratified and confirmed previous findings of fact made in the original board resolution including an additional finding that part of the old Sumner district was annexed to Manteno and the remaining part was included within the boundaries of the newly created Grant Park Unit District at the time of its creation; that a simultaneous annexation of the respective parts of Sumner was planned by the Board; that Manteno forbore annexation of all or part of the Sumner District at its creation to enable Grant Park Unit District to have enough population to be organized on representations by responsible authorities that an accounting would follow; that appraisals and other proceedings followed thereafter and that the Board, therefore, ordered the appraisal report approved (which showed 39% of the total appraised value of $31,887.66 or $12,436.19 payable to the Treasurer of Manteno, with the remaining 61% to be retained by Grant Park).

The Circuit Court in ruling upon the appeal from the County Board order of April 6, 1964, concluded that section 4B-13 (1953 Illinois Revised Statutes, c 122, § 4B-13) has no application to the case and that Grant Park Community Unit District No. 6 was, therefore, entitled to all of the assets of Sumner District No. 254 including all moneys on hand.

Section 4B-13, to which reference is made, provides specifically “whenever a part of a district is included within the boundaries of a newly created district, the county board of school trustees shall cause an accounting to be had between the districts affected by the change in boundaries as provided in sections 4B-14 through 4B-24 of this Act, each inclusive.” On appeal in this court, the appellants contend that the trial court erred in finding the statute referred to inapplicable and in interpreting the statutes and laws contrary to the public policy of the State of Illinois. It is specifically contended that the court erred in allowing an absurd result in statutory construction, the net result of which would mean that 1%5ths of the territory in Sumner District No. 254 and 39% of the school population would lose all the assets they contributed over the year and that by including 1%5ths of the territory and 61% of the population in the new district, the new district could, therefore, take all of the assets. It is argued that such conclusion is unsound and unreasonable and that if 24 out of the 25 sections had been annexed by Manteno, Manteno could theoretically have been saddled with the responsibility of educating students from 24 sections and if thereafter Grant Park Unit No. 6 had annexed the 1 remaining section with the buildings, it could have taken all of the assets.

Appellee in this court contends in effect that this is the result which would follow by a construction of the applicable statutes on the basis that there was no authority in law for the County Board of School Trustees to order an accounting between Manteno and Grant Park Unit No. 6 and that the applicable sections (Ill Rev Stats 1953, c 122, §§ 4B-13 through 4B-22) did not confer such authority on the Board because the situation here does not involve “a part of a district included within a newly created district.” Appellee contends that the only statute applicable here is section 4B-10 referred to which provides that upon the close of the then current school year, during which any school district is annexed to another school district, the annexing district as it is constituted on and after the time of such annexation shall receive all the assets and assume all the obligations and liabilities of the district annexed. Appellee contends that if the Legislature fails to make provision for an equitable adjustment of assets and liabilities between the school districts affected by a change in territory, it is a hardship which the Legislature alone can remedy and the Courts cannot grant relief, citing People v. Bartlett, 304 Ill 283, 136 NE 654.

In Board of Education School Dist. No. 20 v. Board of Education School Dist. No. 315, 12 Ill App2d 97, 139 NE2d 173, the court concluded that there was no prohibition against an accounting in the interim between the effective dates of the County Board Act and the 1955 Amendment to which we have referred. The court pointed out that there was no provision in the School Code of Illinois which applied clearly and unmistakably in that case. The court then went on to state that the policy of the State of Hlinois embodied in the various sections of the School Code was that the funds and assets of schools should follow the liabilities and responsibilities attendant upon providing for an education system. The court concluded in that case that when a common school district is detached from a consolidated unit district prior to the holding of any school or incurring of any bonded indebtedness, the funds of the common school district rightfully proceed with it on detachment and, that, after the detachment, the consolidated unit district has no right to the funds properly allocated to the common school district. The court stated that the detached territory having contributed to the unobligated fund existing at the time of the detachment, is entitled to its benefit. The court further observed, at Pages 105 and 106:

“We are aware that Section 4B-13 of the School Code, as amended in 1955 . . . provides now, inter alia, that ‘there shall be no accounting made after a mere change in boundaries when no new District is created.’ That particular provision was added to Sec 4B-13 in 1955, however, and was not in the law at the time of the happening of the events concerned in the present case. The defendant contends that such is the present public policy of Illinois. Whatever Sec 4B-13 as so amended in 1955 may mean, and whatever the public policy of the State in this regard may be at the present time, it was not so expressed and provided by the Legislature at the times pertinent to the case at bar ... in the instant case there was then no statutory provision contrary to the precedent of People v. Trustees of Schools . . . The Legislature met in 1953 after that case had been determined. It is presumed to have been familiar with that case. It had an opportunity then to change the law by statute, if it so desired, but it did not then do so. The material public policy of the State in any instance can only be ascertained from the acts, or failures to act, of the Legislature, as interpreted, construed, and applied by the courts, as of the times pertinent to a particular case, not as of some later date.”

In the 1958 Illinois Law Forum, at page 349, the author observes in connection with accounting as to school districts:

“Since 1865 the school laws have provided for an accounting of funds and assets when a new district is created so as to include a part of another district, and only in that case. When provision was made for such an accounting in the County Board of School Trustees Act as originally enacted, the language was somewhat ambiguous, but by amendment in 1955 it was made clear that the accounting was applicable only in the case of the creation of a new district.
“In Board of Education v. Board of Education . . . the Appellate Court . . . held that there was no prohibition against an accounting in the interim between the effective dates of the County Board Act and the 1955 amendment.”

The author goes on to state that the same result might have been reached by applying the doctrine of Ketcham v. Board of Education School Dist. No. 201, 324 Ill 314, 155 NE 332, to section 4B-14 of the School Code. In the Ketcham case, the court observed (at Page 318):

“When the literal enforcement of a statute would result in great injustice and lead to absurd consequences, the courts are bound to presume that such consequences were not intended and to adopt a construction which, it is reasonable to assume, was contemplated by the legislature. When the legislative intention can be gathered from a consideration of all the legislation upon the subject, words of a particular section may be modified or altered so as to obviate all inconsistency with such intention.”

In examining the facts in the present case in the light of the decisions referred to and the apparent legislative intention, it is noted that on July 5, 1955, when the appraisers were appointed, section 4B-13 referred to was not in force and effect and did not become effective until July 9, 1955. While it is true that no new district was formed when part of Sumner District No. 254 was annexed to Manteno, a part was in fact annexed consisting of 12 out of 25 sections and a part of the district remained and was operated until the creation of the Grant Park Unit District No. 6. At such time the remaining part became part of the Grant Park Unit District. As indicated in Board of Education School Dist. No. 20 v. Board of Education School Dist. No. 315, supra, the Legislature had made no provision preventing an equitable adjustment prior to the enactment of section 4B-13 herein referred to. Applying sections 4B-14 through 4B-22 of the chapter herein referred to and based upon the precedents of Board of Education School Dist. No. 20 v. Board of Education School Dist. No. 315, supra, and the Ketcham case herein referred to, we agree that the public policy of this State at the time of the appointment of the appraisers did not bar an accounting after a mere change in boundaries when no new district was created. On the basis of the precedents, an accounting could have been ordered between Sumner and Manteno at the time the 12 sections were annexed to Manteno. We find no legislative provision or precedent which prohibited a delay in the accounting until the end of the year. The County Board, it can be noted from the record, determined to delay the accounting until the end of the year for the welfare of the students in the remaining 13 sections so that 39% of the assets would not be taken away at such time. It thus sought to act prudently and ordered an accounting at the end of the school year. Nothing in the record shows that Grant Park or anyone else would be injured in any respect as a result of an accounting. We feel that Manteno should not be penalized because the accounting was delayed until the time when the remaining part of Sumner No. 254 became part of the newly created Grant Park District No. 6. It could not have been the policy of the Legislature to provide for an inequitable result and, on the basis of the cases of Board of Education School Dist. No. 20 v. Board of Education of School Dist. No. 315, supra, and Ketcham v. Board of Education School Dist. No. 201, supra, we must conclude that the only equitable and appropriate determination is to approve the accounting ordered by the County Board of School Trustees. We are aware that no exact precedent may be cited for such conclusion and that a rigid and technical interpretation of the statutes might call for an affirmance in this case. We also are aware of deficiencies in the procedures of the County Board of School Trustees in its technical procedures and we are conscious of the fact that the County Board of School Trustees proceeded to allow the annexation to Manteno without any formal agreement or understanding as to division of funds. On the basis of the record and the findings of the Board, we feel that we are not required to reject the accounting undertaken by the Board. We are also aware of the policy of this State at the time in question and the need for equitable interpretation of the applicable statutes and precedents on the basis of the record before us. Our conclusions are necessarily applicable only to the facts and to be understood in light of the specific times involved as noted in this opinion.

We, therefore, conclude that the order of the Circuit Court should be reversed and this cause remanded with directions to affirm the order of the County Board of School Trustees entered on April 6,1964.

Reversed and remanded with directions.

CORYN, P. J. and STOUDER, J., concur.


author: SMITH, J.

text:
    Mort A. Segall, Plaintiff-Appellant, v. Lindsay-Schaub Newspapers, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 10,677.
    Fourth District.
    March 28, 1966.

      Dyer, Richmond & Moore, of Hoopeston (Kenneth L. Richmond, of counsel), and D. S. Eagon, of Champaign, for appellant.

      Wheat, Hatch, Corazza & Baker, of Champaign (Harold A. Baker, of counsel), for appellee.
   SMITH, J.

On motion, the trial court dismissed plaintiff’s two-count suit for libel and entered a judgment in bar. In Count I, plaintiff charged that the matters published were untrue and libelous per se and the publication injured and damaged him in his profession as a lawyer. Count II alleges that the publications were maliciously made with the intent to harm and damage the plaintiff in his profession. Damages of $100,000, pleaded generally and not specially, are claimed in each count. From the judgment in bar, plaintiff appeals.

The published articles are centered around courtroom events relating to one Herbert Tinsley, a client or former client of the plaintiff as the case may be, and who was not a stranger to the halls of justice in Champaign County. The first publication on September 24 relates to Tinsley’s appearance for arraignment on an indictment charging the illegal use of weapons. When asked by the judge if he had an attorney, Tinsley said he didn’t know; that he had paid an attorney $492 to represent him in another matter in County Court and had signed a promissory note for $1,500. Tinsley said the attorney told him he had eight months in which to pay the note, but instead took judgment on the note within a few days. The judge commented that “I think you’ve paid him more than enough already,” continued the case to the following Tuesday and indicated that if Tinsley desired he would appoint the attorney to serve without pay. Plaintiff was not mentioned by name in the article.

The next day, September 25, the defendant published an article stating that Tinsley was given one week to get another attorney, a continuance was granted, that Tinsley declined the offer of the judge to appoint his previous attorney without pay, reiterated parts of the previous article and quoted Tinsley as saying “I wouldn’t want an attorney to represent me who was mad at me.” Plaintiff’s name was not mentioned in the article.

On October 1, the third publication stated that Herbert Tinsley, who told the court he had paid a local attorney nearly $2,000 to represent him in a misdemeanor trial in county court, got á new attorney, the public defender, and then repeated a thumbnail sketch of the two previous publications.

On October 14, the fourth publication read in part as follows:

No New Trial.
Tinsley Case Set Friday
“Herbert Tinsley, 1406 W. Beech St., will learn at 9:30 a. m. Friday if his approximately $2,000 calculated risk is to pay off.
“Hearing on a motion for a new trial for Tinsley, convicted in County Court by a jury on charges of aggravated assault, was overruled Monday on the grounds that Tinsley’s attorney in the case, Mort Segall, failed to put the motion in writing. . . .”

and then reiterated in part the contents of the first three articles.

On October 20, so far as material, the fifth publication stated:

“. . . Interest in the case is centered around Tinsley’s contention, made in Circuit Court, that he paid attorney Mort Segall nearly $2,000 to take the appeal from the justice court, where a fine of $75 had been entered. . . .”

In our judgment, the recent opinion of our Supreme Court at its November Term 1965, in the case of Robert Lulay, d/b/a Hausam’s Market, Appellee v. Peoria Journal-Star, Inc., Appellant, Docket No. 39042M, effectively handcuffs the plaintiff in his suit. In that case the Supreme Court concluded that the publication in question was an accurate and capsulized summation of plaintiff’s difficulties with the City of Peoria Health Department; that the publication was not libelous per se and that the trial court should have invoked the defense of privilege as a matter of law. In so doing, it states that “Section 611 of the Restatement of Torts definitely expresses the prevailing, if not unanimous weight of judicial authority. The right to report the activities of ‘a municipal corporation or of a body empowered by law to perform a public duty is privileged, although it contains matter which is false and defamatory, if it is (a) accurate and complete or a fair abridgment of such proceedings, and (b) not made solely for the purpose of causing harm to the person defamed.’ The privilege plainly includes the right to report the activities of such agencies as the Peoria Health Department.” (Citing Authorities.)

If the acts, declarations or records of agencies in the lower levels of government are privileged within the limitations thus stated, it seems almost perfunctory to assert that proceedings in open court in connection with a pending criminal case are likewise privileged. Lulay goes on to observe that the privilege thus afforded “can only be defeated by proving that a ‘particular publication was motivated by actual malice’ and that ‘it would not be the ordinary case where the plaintiff could establish that a news report or discussion of governmental activities was only published because of actual malice.’ ” Even if portions of the publication are false (as the plaintiff alleges) and defamatory (a conclusion calling for no inconsiderable imagination) Count I alleges no actual malice and is thus fatally defective.

Count II adopts the allegations of Count I and alleges that the “publications were made maliciously and with malice, and with intent to greatly harm and damage the plaintiff in his reputation as an attorney.” No special damages are alleged. In both respects Count II is fatally defective. Where the publication is not libelous per se— and these weren’t — a general allegation of damages is not sufficient and special damages must be alleged and proved. Lundstrom v. Winnebago Newspapers, Inc., 58 Ill App2d 33, 206 NE2d 525; Hambric v. Field Enterprises, Inc., 46 Ill App2d 355, 196 NE2d 489; Gogerty v. Covins, 5 Ill App2d 74, 124 NE2d 602.

From plaintiff’s complaint it is clear that he does not complain that the events which took place and the statements reported did not happen in the courtroom. He explains in his complaint that Tinsley’s statements were false and the judge’s information thus incorrect. Thus, the proceedings were not falsely reported. The articles on their face do not suggest or remotely import malice nor can it be presumed. Judge v. Rockford Memorial Hospital, 17 Ill App2d 365, 150 NE2d 202. Where the published statements are neither libelous per se nor purport on their face to be motivated by actual malice, it would seem that the bare assertion of actual malice is insufficient. Where actual malice is the keystone of recovery in the publication of courtroom happenings and rests on extrinsic facts, it would seem that such a charge should not come into the courtroom naked, but should be clothed with factual allegations from which the actual malice might reasonably be said to exist. This is particularly true of courtroom events. The public is interested in them and this is as it should be. The news media should not operate in this area with a sword of Damocles hanging over its head and be subjected to a categorical charge of malice where the contents of the publication are neither libelous per se nor on their face maliciously-made. Where the malice is grounded on facts beyond the pale of the publication itself, those facts in capsule at least should be alleged. Count II falls far short of this standard.

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

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


author: JUSTICE SMITH.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Edward Jenkins, Defendant-Appellant.
    Gen. No. 10,697.
    Fourth District.
    March 28, 1966.
    Burger, Geisler & Fombelle, of Decatur, for appellant; Basil Greanias, State’s Attorney, of Decatur, for appellee.
   Opinion by

JUSTICE SMITH.

Not to be published in full.


author: MR. JUSTICE ABRAHAMSON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Michael Davidovic, Defendant-Appellant.
    Gen. No. 65-73.
    Second District.
    April 5, 1966.

      James P. Moore, of Waukegan, for appellant.
    Bruno W. Stanczak, State’s Attorney, and Jack Hoogasian, Assistant State’s Attorney, both of Waukegan, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant appeals from a conviction for the crime of armed robbery, by the Circuit Court of Lake County. The defendant was indicted for having allegedly committed the offense of armed robbery in that he entered the Dutch Mill Tavern on Route 59 in Lake County on the 16th day of May, 1965, and forced the bartender and 5 patrons at gun point to give him their money. At that time defendant was on parole on a prior sentence for the offense of armed robbery.

The case was tried before a jury and upon the jury’s verdict of guilty, the judge sentenced the defendant to a minimum of 25 and a maximum of 35 years in the penitentiary.

On appeal, defendant claims that a written confession offered in evidence against him was inadmissible on the grounds that his request for an attorney at the time of his arrest and during his interrogation had not been granted. He further contends that the sentence was excessive.

It appears that defendant was arrested on May 18, 1965, by the Lake County Sheriff’s Police at approximately 3:50 p. m. He was driven to the County Jail in Waukegan, where he arrived at approximately 4:20 p. m. He was taken to the State’s Attorney’s office and interrogated and made the written confession which was concluded at approximately 5:00 p. m.

At the hearing to suppress the confession the defendant testified that he had asked the Assistant State’s Attorney who took his confession for the right to consult with an attorney and that this request was refused. The Assistant State’s Attorney testified and denied that any request had been made by the defendant to consult with an attorney and his testimony was substantiated by that of a special investigator for the Lake County Sheriff’s office who testified he was present with the defendant and Assistant State’s Attorney when the statement was taken and that at no time did he hear the defendant make a request to confer with an attorney. Defendant further testified that at the time of his arrest he asked his fiancee, who was with him, to get him an attorney. Defendant did not produce her as a witness to substantiate his claim. The officer present at the time of the arrest testified that he made no request for an attorney.

In taking the defendant’s statement the Assistant State’s Attorney advised the defendant of the charge against him and advised him that the statement must be given voluntarily and might be used against him in a criminal procedure. The statement was taken in the form of questions and answers and consisted of 8 typewritten pages, each signed by the defendant.

In support of his argument the defendant relies on the U. S. Supreme Court decisions in Escobedo v. State of Illinois, 378 US 478, 12 L Ed2d 977, and Spano v. State of New York, 360 US 315, 3 L Ed2d 1265. In the Escobedo case the police officers who had taken the confession admitted that Escobedo had asked for an attorney and that his attorney was in fact present in the next room and that his request to see his client was denied by the police until after the confession had been taken. At no point does it appear in the Escobedo case that he was advised of his right not to make a statement. Justice Goldberg, in speaking for the court, at pages 490 and 491 stated:

“We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogation that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ (citation omitted), and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.”

We have examined carefully the record before us and are of the opinion that the trial judge was justified in disbelieving defendant’s claim that he had requested counsel before giving the written statement. We are also of the conclusion that the Assistant State’s Attorney, before taking defendant’s statement, effectively advised him of his right to remain silent. We do not, therefore, find that defendant’s constitutional rights were violated. The failure of the defendant to request an attorney and the failure of the police or State’s Attorney’s office to advise him of his right to an attorney did not render the confession inadmissible. The People v. Earl, 34 Ill2d 11, 213 NE2d 556; People v. Hartgraves, 31 Ill 2d 375, 379, 380, 202 NE2d 33.

Finally, the defendant seeks to have this court reduce the sentence imposed by the trial judge on the basis that the sentence was excessive. Prior to the adoption of section 121-9 (b) (4) of the new Code of Criminal Procedure, the Appellate Court could not reduce a sentence imposed by the trial court without reversing the conviction. People v. Bannen, 37 Ill App2d 363, 365, 145 NE2d 706; People v. Calhoun, 22 Ill2d 31, 36, 174 NE2d 166 (certiorari denied) 368 US 935.

The defendant at the time of the robbery of the Dutch Mill Tavern had been released on parole from the State Penitentiary just four weeks prior for the commission of an earlier armed robbery, after serving approximately three years for that offense. In addition thereto, his confession disclosed that the night before the robbery in question he had committed an armed robbery at the Sunset Motel. While the sentence imposed upon the defendant is a severe one, it appears from the record that defendant has a propensity for committing armed robbery, which is a serious felony. We adopt the principles set forth in People v. Valentine, 60 Ill App2d 339, 355, 208 NE2d 595, wherein the court said:.

“We believe that the power to reduce sentences should be used with caution and that a sentence imposed by the trial judge, who sees the defendant and is in a far better position to appraise him and to evaluate the likelihood of his rehabilitation than a reviewing court, should not be reduced unless there are substantial reasons for doing so. The penalty decided upon by the trial court, if within statutory limits, should not be changed merely because of judicial clemency or just because the reviewing court would have imposed a different one if it had been in the trial court’s position.”

The sentence in this case was within the scope of punishment fixed by the statute and we find nothing in the record to indicate that the trial court abused its discretion in so fixing the sentence.

Judgment affirmed.

MORAN, P. J. and DAVIS, J., concur.


author: JUSTICE ABRAHAMSON.

text:
    Donald Guerra, Plaintiff-Appellee, v. Warren F. Gilkey, Defendant-Appellant.
    Gen. No. 65-106-M.
    Second District.
    April 5, 1966.
    Pretzel, Stouffer, Nolan and Rooney, of Chicago, for appellant; no appearance made or brief filed for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.


text:
    Coy McAllister, d/b/a Coy McAllister Excavating Co., Plaintiff-Appellee, v. Hawkeye-Security Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 65-109.
    Second District.
    April 5, 1966.
    Williams, McCarthy, Kinley & Rudy, of Rockford, for appellant.
    Reno, Zahm, Folgate & Skolrood, and Stuart B. Nordquist, all of Rockford, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The issue involved in this appeal is the construction of the liability insurance policy issued by defendant-appellant to plaintiff-appellee with reference to the meaning of the word “accident” as used therein. The word is not defined in the policy.

The pertinent facts of the case are undisputed. The plaintiff is in the excavating business. Grover Porter, the highway commissioner for Roscoe Township, engaged him to carry out earth moving activities incident to the repair of Pleasant Valley Road. Plaintiff was instructed to commence such work at the intersection of Pleasant Valley and Manchester Roads, permission having been obtained from the abutting property owner for the plaintiff to enter upon said property at this point.

In the course of his operations, the plaintiff mistakenly started the road work on the premises of Addison B. Foss, located at the intersection of Pleasant Valley and Prairie Hill Roads — a quarter of a mile south of where he had been instructed to work. Plaintiff performed certain earth moving activities there, believing that he was on the premises where the highway commissioner had directed him to work.

Foss thereupon filed suit against Porter, the highway commissioner, in Cause No. 80088, seeking damages for the trespass upon his land. Porter filed a third-party complaint in said action against the plaintiff herein, seeking reimbursement for any damages which he might be required to pay to Foss, contending that plaintiff was primarily responsible for the damage.

Prior to the date of this occurrence, the defendant issued its comprehensive liability policy to plaintiff, which was in effect at the time, whereby it agreed to pay on behalf of the insured, “all sums which the insured shall be legally obliged to pay as damages because of injury to or destruction of property, . . . caused by accident and arising out of the ownership, maintenance or use” of plaintiff’s equipment, and to furnish a defense in any suit instituted to recover damages.

The plaintiff tendered the defense of the third-party-action to the defendant, which, after investigation, the defendant refused, and stated that the policy did not cover the type of occurrence in question because it was not an accident.

Upon trial, a judgment was entered in favor of Foss and against Porter for $1,910.55, and in the third-party action, judgment was entered in favor of Porter and against the plaintiff herein, in the same amount.

Thereafter, plaintiff filed a declaratory judgment suit against the defendant seeking a judicial declaration that defendant was obligated to reimburse the plaintiff for the amount of the Porter third-party judgment. The trial court so held, entered judgment in favor of the plaintiff and against the defendant for $1,910.55 plus costs, and the defendant has appealed.

The defendant contends that the damage to Foss’ property, resulting from the plaintiff having mistakenly carried out certain earth moving activities thereon, was not caused by accident, as required under the liability policy; that, therefore, there is no obligation on the part of the defendant to reimburse the plaintiff for the judgment rendered against him in the third-party suit; and that the judgment against the defendant herein should be reversed.

The plaintiff urges that the damage caused by his trespass by mistake onto Foss’ land was “caused by accident” within the terms of the defendant’s liability policy issued to him; and that since the Foss complaint and third-party complaint potentially stated a cause of action against the plaintiff within the coverage of the policy, defendant’s denial of liability and refusal to accept the defense of the case, estopped it from asserting any defense as to payment on the ground of noncoverage.

If an ambiguity or uncertainty results from language used in an insurance policy, it is a basic rule of construction that all uncertainty should be resolved in favor of the insured. Iowa Nat. Mut. Ins. Co. v. Fidelity & Cas. Co. of New York, 62 Ill App2d 297, 303, 210 NE2d 622 (2nd Dist 1965); Caster v. Motors Ins. Corp., 28 Ill App2d 363, 366, 171 NE2d 425 (4th Dist 1961).

Defendant contends that plaintiff intended to operate his equipment and.to perform earth moving activities; that he did what he intended to do; that his acts were deliberate, voluntary and intentional; that there was nothing unforeseen or unexpected about the thing done; and that the occurrence in question was not an accident and there was no liability under the rationale of Farmers Elevator Mut. Ins. Co. v. Burch, 38 Ill App2d 249, 187 NE2d 12 (4th Dist 1962). Defendant stresses the language at page 252 and 253, to wit:

“The policy covered only damages caused by accident. While the word ‘accident’ does not have a settled legal signification, its generally accepted meaning is the same as the popular understanding or approved usage of the word implies.
“ ‘Accident’ normally designates an unforeseen occurrence, usually of an untoward or disastrous character, or an undesigned sudden or unexpected event of an inflictive or unfortunate character (Neale Const. Co. v. United States Fidelity & Guar. Co., 199 F2d 591, 592; Yates v. Bankers Life & Cas. Co., 415 Ill 16, 19, 111 NE2d 516). The natural and ordinary consequences of an act do not constitute an ‘accident.’ ”

In Burch, a lawsuit had been filed against the insured— the elevator company — charging that it maintained a nuisance in the operation of its elevator and had permitted dust from grain etc., to enter plaintiff’s premises causing damage thereto; and that the insured operated machinery which vibrated to the extent that it caused damage to his home. Thereafter, the insurer filed a declaratory judgment action seeking determination as to policy liability. Upon appeal in said action, the Appellate Court found that the occurrence, as delineated in the pleadings, was not an accident.

While recognizing that there are cases holding certain factual situations to be accidental, defendant endeavors to distinguish between those cases and the case at bar. It cites as an example, Yates v. Bankers Life & Cas. Co., 415 Ill 16, 111 NE2d 516 (1953), a case in which the insured, Yates, intruded into the home of Richardson, who, without intent to injure Yates, pushed him out the front door and onto the front porch. The push, however, caused Yates to fall and the fall resulted in a fatal injury. The Supreme Court held that the injuries and death of Yates were caused by something unforeseen and unexpected occurring in the course of an intentional act; and that the jury could properly have found that Yates’ death was caused by “accidental means,” as defined in the policy issued on Yates’ life. “Accidental means” is defined in Yates in these words, at pages 19 and 20:

“In Christ v. Pacific Mutual Life Ins. Co. the court reviewed the definitions and applications of the term ‘accident’ in cases involving recovery under insurance policies, and adopted the interpretation of the United States Supreme Court in United States Mutual Accident Assn. v. Barry, 131 US 100. Under the rule promulgated in the Barry case, if an act is performed with the intention of accomplishing a certain result, and if, in the attempt to accomplish that result, another result, unintended and unexpected, and not the rational and probable consequence of the intended act, in fact, occurs, such unintended result is deemed to be caused by accidental means.
“In the Barry case, the insured, along with two companions, jumped from a platform 4 or 5 feet high, and in alighting unexpectedly wrenched his body by a jar which cause a stricture of the duodenum, resulting in Ms death a few days later. In adjudging that decedent had sustained an accident, the court stated: ‘The two companions of the deceased jumped from the same platform at the same time and place and alighted safely. It must be presumed not only that the deceased intended to alight safely, but thought that he would.’ ”

The defendant argues that in Yates, Richardson intended to push Yates the insured, but not to harm him, and that the insured’s fall and fatal injury were occasioned by an accident; while in the case at bar, plaintiff intended to drive his equipment and intended to do damage to the land, and that the damage caused by such deliberate and intentional acts, was not caused by an accident.

However, we believe that under the definition of an “accident” in Yates, it can fairly be said that plaintiff intended to assist in making an authorized improvement to a highway and abutting lands, but through mistake, illegally entered upon Foss’ property and moved earth there which damaged that property. While the plaintiff intended to move earth, he intended to do so incident to repairing the highway and he did not intend to do so on Foss’ land, thereby causing damage to it. The damage was not the rational and probable consequence of plaintiff’s intended act — it was rather something unforeseen and unexpected occurring in the course of an intentional act.

Other Illinois courts have liberally construed policies of insurance providing for the payment of benefits caused by “accidental means.” In Taylor v. John Hancock Mut. Life Ins. Co., 11 Ill2d 227, 142 NE2d 5 (1957), at page 230, the court stated:

“In effect, ‘accidental means’ has been held to be synonymous with ‘accidental result,’ and defined as something which happens by chance or fortuitously, without intention or design, and which is unexpected, unusual and unforeseen. (See, e. g., Yates v. Bankers Life and Casualty Co. 415 Ill 16; Rodgers v. Reserve Life Ins. Co. 8 Ill App2d 551.) While it is true the parties intended to burn the house, they obviously did not intend the fire to start when it did. To this extent it was ‘accidental’ as the term has heretofore been interpreted.”

In Rodgers v. Reserve Life Ins. Co., 8 Ill App2d 542, 132 NE2d 26 (2nd Dist 1956), Rodgers consciously incurred a known hazard in attempting to negotiate a curve in the highway at a high rate of speed and was killed. He clearly failed to exercise judgment, was careless, reckless and perhaps, foolhardy. The court held that Rodgers’ death was not the rational, natural and probable result of his intentional acts, but rather, was accidental within the meaning of the liability policy.

In Smith v. Moran, 61 Ill App2d 157, 209 NE2d 18 (2nd Dist 1965), the insured aimed a gun at one person but shot and injured another. The party inflicting the injury had an insurance policy which excluded from coverage, injury caused intentionally by the insured. On appeal, it was argued that the act of the insured was intentional and, therefore, not covered by the policy. At page 163, we stated:

“We are of the opinion that the injury to the plaintiff was not intentionally caused by the defendant, but was an unintentional result of an intended act directed at Dolores Nelson.”

In the case at bar, we likewise believe that the damage to the Foss land was not intentionally caused by the plaintiff, but rather, was the unintentional result of an intended act directed at other property. Since there was not intent to damage Foss’ land, the resulting harm was “caused by accident.”

In the light of the foregoing liberal construction given by Illinois courts to insurance policies with reference to the meaning of the word “accident” and similar terms as used therein, as well as the force of cases from other jurisdictions which specifically hold that trespass by mistake is an “accident” under a policy provision similar to that in the case at bar (Haynes v. American Cas. Co., 228 Md 394, 179 A2d 900 (1962); J. D’Amico, Inc. v. City of Boston, 345 Mass 218, 186 NE2d 716 (1962)), we conclude that injury to property arising out of such trespass is caused by an “accident” under the policy provision in question. We affirm the trial court on this theory and have no occasion to consider the alternate theory of estoppel which was advanced by plaintiff as a further basis for the affirmation of the trial court judgment.

Accordingly, the judgment of the trial Court is affirmed.

Judgment affirmed.

MORAN, P. J. and ABRAHAMSON, J., concur.


text:
    William G. Patton, as Administrator of the Estate of William Dallas Patton, Deceased, Plaintiff-Appellant, v. Homer Wallace, Defendant-Appellee.
    Gen. No. 65-35.
    Fifth District.
    April 6, 1966.

      Beatty, Schooley and Theis, of Granite City (William L. Beatty, of counsel), for appellant.
    Ralph T. Smith, of Alton, for appellee.
   SMITH, J.

Plaintiff administrator appeals from an adverse judgment in a bench trial of a suit for wrongful death arising from the shooting in the leg of plaintiff’s intestate by the defendant police officer. It is the second bench trial of the case. The first, based on four counts of ordinary negligence, resulted in a defendant’s verdict on motion at the close of plaintiff’s evidence. On appeal, the case was reversed and remanded for new trial. Just before the second trial, plaintiff dismissed all four counts of ordinary negligence and amended his complaint by adding Count V charging willful and wanton negligence. The case proceeded to trial on this count only with the evidence in the first trial again considered together with additional evidence on behalf of the defendant.

Defendant, a motorcycle policeman of the city of Alton, was parked at a filling station near the east city limits when he observed decedent proceeding west on Broadway, a principal thoroughfare in the city, at a high rate of speed. Defendant started in pursuit with his siren and red light in operation. He heard tires squealing and observed Patton trying to extricate his car from a rear-end collision with another car which had stopped for a red light. It later developed that the stopped car was occupied by a girl friend of Patton’s and her escort. The girl friend testified that Patton had talked with her by phone about an hour before the occurrence, did not discuss a date, and was not of a jealous disposition. Patton moved around the car he had hit and proceeded westward on Broadway about 60-70 mph with the defendant in pursuit. The chase continued for more than %th of a mile on Broadway.

The officer fired two shots into the air and then called to decedent two or three times to pull over to the curb. No response. Both vehicles turned south and the officer fired a shot into the side of the car as decedent was crowding him into the left-hand curb. The officer then fired again at the left-rear wheel of the car after the decedent again crowded him. Near the river levee, the decedent abandoned his car and ran towards the levee. The officer fired at his legs striking him just above the knee. The decedent dropped to one knee, then ran over the levee some 500 feet and into the Mississippi River toward a barge. He went under the barge and was dead when fished from under the barge some 45 minutes later. The incident began about 7:00 p. m. on July 21, 1957.

The record thus shows that the decedent, after turning south toward the river, twice attempted to run the officer down or run him into the curb and into a building. Whether the intent of the decedent was only to deter, to ward off pursuit, to complete an aggravated battery, to maim, to commit mayhem, or actually to kill, rests with him in the grave — his lips are sealed. The siren, the red light, vocal calls, two shots into the air; one shot at the side of the car and one shot at the rear wheels, accomplished nothing. They were all unheeded by the decedent. He displayed a contemptuous disregard for these warnings which would bring the ordinary individual to heel. His conduct from the time the curtain goes up on his activities until it goes down defies satisfactory explanation or understandable justification. Although offered every opportunity to desist, to halt, and to accept either interrogation or arrest, he chose flight and the irresponsible conduct reflected in this record. This was true before he was shot — it was true after he was shot. Such conduct does not mesh with that to be reasonably expected of the ordinary prudent citizen. We think it demonstrates either an indifference to or a conscious disregard for the decedent’s own safety and for the safety of others and is properly characterized as willful and wanton. As such it is a bar to recovery if it may be said that it proximately contributed to his death. Zank v. Chicago, R. I. & P. R. Co., 17 Ill2d 473, 161 NE2d 848; Prosser, Law of Torts, 3rd Ed pp 64, 436.

The body was disinterred some three weeks after burial and an autopsy was performed on the lower extremities. The physician testified in detail concerning the bullet wound, stated that it might or could have caused death, and that “at the time I conducted my examination, there was no medical way to determine whether the cause of death was drowning. The body was in a fair state of decomposition.” He further testified concerning the bullet wound:

“. . . Regardless of what might have been the actual cause of death this was a contributing factor. I did not dispute the fact that the boy might have died from drowning. Drowning might very easily have occurred. If this individual had received treatment for the wound which I found in the leg at the time of my examination, within a reasonable time after the wound was inflicted, I would not expect death. Normally, I would not expect it to be fatal under those circumstances. . . .”

When the plaintiff asked the doctor whether the bullet damage could have been a factor contributing to the drowning, the doctor answered:

“Well, any one of several things when you combine them together I think you have more of a shocking procedure. I think that with the amount of blood lost that I know of with the amount of blood which the individual would have lost in covering the five hundred feet distance and subsequent immersion I think it would be reasonable to expect that the individual couldn’t defend himself properly.”

Based on the doctor’s testimony, we think it a fair conclusion that the actual cause of death is in limbo and that the decedent contributed to such cause by immersing himself in the river, and being unable to rescue himself after such immersion through loss of blood in running 500 feet after he was shot. The immersion and the running are the unequivocal, voluntary acts of the decedent compatible with the reckless irresponsible conduct he had pursued since we first met him in this record. Had he halted when hit, he would not have drowned and in all probability would not have bled to death. “I would not expect it to be fatal under the circumstances.” It is certain that his own conduct after the shot effectively removed any chance for assistance that might or could have preserved his life. Under the medical testimony whether death would have ensued is doubtful. It is certain that his own conduct after the shot effectively removed any chance for assistance that might or could have preserved his life. It seems clear that the latter clearly demonstrates a total indifference to and a conscious disregard for his own welfare and safety, and fails to establish his freedom from willful and wanton misconduct which proximately contributed to his death. It seems clear to us that the exercise of reasonable precaution and proper circumspection might well have avoided his death. Carter v. Winter, 32 Ill2d 275, 204 NE2d 755. We would paraphrase the language of the Ohio Court of Appeals in Clark v. Carney, 71 Ohio App 14, 42 NE2d 938, in a somewhat similar situation when we ask how he or those claiming through him can complain of the results to which his own conduct so effectively contributed. The judgment of the trial court is not against the manifest weight of the evidence. The judgment of the trial court is correct and it is accordingly affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.