author: CORYN, P. J.

text:
    Beulah Patarozzi, Administrator of the Estate of Max Patarozzi, Deceased, Individually and as Personal Representative and Next Friend of Gary Eugene Patarozzi, Ricky Allen Patarozzi and Cynthia Ann Patarozzi, Minors, Plaintiff-Appellee, v. Prairie States Oil & Grease Company, a Corporation, and Allison Carter, Defendants-Appellants.
    Gen. No. 65-51.
    Third District.
    May 25, 1966.
    Rehearing denied July 21, 1966.

      Dixon, Devine, Ray & Morin, of Dixon, and Hupp & Irion, of Ottawa, for appellants.
    McNeilly & Oliver, of Peru, for appellees.
   CORYN, P. J.

This is an appeal from a judgment on a maximum verdict against defendant for the wrongful death of one Max Patarozzi and for the additional expense of $1,085.-70 for his burial. The complaint was filed by decedent’s widow, in her individual capacity, and as administrator of decedent’s estate. The evidence shows that death resulted from injuries sustained October 12, 1962, when an automobile operated by Max Patarozzi on Main Street in Seneca collided at the intersection of Union Street with a truck owned by defendant, Prairie States Oil & Grease Company. At the time of the collision, the truck was being driven onto Main Street from Union Street by Allison Carter, an employee of defendant corporation. During the course of the trial, witnesses for defendant testified that immediately prior to the fatal collision, which occurred at night, decedent had been driving his vehicle down Main Street, which was dimly lighted, toward Union Street, in excess of the speed limit and without headlights or taillights being lit. Because objections by plaintiff to certain testimony regarding decedent’s sobriety were sustained, defendants made an offer of proof by various witnesses to the effect during the four or five-hour period prior to the time of the collision, plaintiff’s decedent had visited several taverns in the area where he consumed substantial quantities of alcoholic beverages. The evidence on this issue was excluded by the trial court on the ground that even assuming decedent to have been intoxicated, such fact could net “have contributed to this accident over and above what we presently know now that he [decedent] was speeding, if he was, and his lights were out. . . . Proving that he was dead drunk proves nothing in this case — he was on his own side of the road without his lights on — and dead drunk adds nothing to your case.” Defendants," who perfected this appeal, claim that the foregoing ruling of the court excluding evidence of intoxication constitutes prejudicial error, and they, accordingly, seek a new trial or judgment notwithstanding the verdict.

We think it apparent that the trial court erred in deciding, as a matter of law, that intoxication, if proved, should not be considered by the jury in determining whether plaintiff’s decedent was acting with due care for his own safety at the time of the fatal accident. The issue of contributory negligence was for the jury to determine. It is well recognized that “one may be contributorily negligent where he is voluntarily intoxicated to such an extent that his intoxication prevents him from taking proper care and caution to avoid injury to himself.” 28 ILP, Negligence, § 142. “A person threatened with a peril caused by the negligence of another is bound to exercise his intelligence and activity in full measure to avoid injury therefrom, and if it appears that from voluntary drunkenness he has deprived himself of the capacity so to do, and as a result has suffered an injury, he will ,be denied legal redress therefor on the ground of contributory negligence. . . . Intoxication defeats a recovery by the plaintiff for negligence only insofar as it affects the care which he takes for his own safety. Thus, evidence of plaintiff’s intoxication is admissible, not as establishing contributory negligence in itself unless it shows that the drunkenness was in such degree as to cause loss of control of the muscles and senses, but as a circumstance to be weighed by the jury in their determination of the issue whether or not plaintiff exercised ordinary care for his own safety.” 38 Am Jur, Negligence, § 203, at 883. In Fox v. Hopkins, 343 Ill App 404, 99 NE2d 363, 26 ALR2d 352, evidence of the defendant’s intoxication at the time of the automobile collision was admitted notwithstanding the fact that no charge of intoxication against the defendant was made in the plaintiff’s complaint. The Appellate Court, in deciding that this evidence was properly admitted by the trial court, stated:

“It is our opinion that such testimony was material and evidentiary in its nature, the same as was the condition of the road, whether dry or slippery, and the condition of the weather, whether dark or light or clear or foggy, and that such testimony was therefore admissible as tending to prove negligent conduct of the defendant as charged, although not specifically pleaded.”

Whether the fact of intoxication, if proved, would or would not have “added anything” in the case at bar, was manifestly a question for the jury. It was for the jury to determine if evidence of decedent’s intoxication, considered with other evidence in the case regarding decedent’s behavior, constituted a lack of due care on the part of decedent.

In cases where negligence or contributory negligence by reason of intoxication is an issue, IPI Instruction No. 12.01 normally should be given in conjunction with IPI 150.15. IPI No. 12.01 reads as follows:

“Whether or not a person involved in the occurrence was intoxicated at the time is a proper question for the jury to consider, together with other facts and circumstances in evidence, in determining whether or not he was [negligent] [contributorily negligent]. Intoxication is no excuse for failure to act as a reasonably careful person would act. An intoxicated person is held to the same standard of care as a sober person.”

IPI Instruction No. 150.15 defines intoxication in these words:

“A person is ‘intoxicated’ when, as a result of drinking alcoholic liquor, there is an impairment of his mental or physical faculties so as to diminish his ability to think and act with ordinary care.”

We conclude that the evidence regarding decedent’s sobriety should have been admitted, and that the foregoing instructions should have been given to the jury. Accordingly, the judgment of the trial court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

ALLOY and STOUDER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    James A. Turner, Plaintiff-Appellant, v. Patrick E. Wallace, Defendant-Appellee.
    Gen. No. 65-69.
    Third District.
    May 25, 1966.

      Smith, Whitney & Church, of Peoria, for appellant.

      McConnell, Kennedy, McConnell & Morris, of Peoria, for appellee.
   CORYN, P. J.

This is an appeal from a judgment entered on a verdict for defendant, Patrick E. Wallace, in a cause for personal injuries allegedly sustained by plaintiff, James A. Turner, on August 20, 1962, when an automobile he was driving was struck from the rear by a vehicle owned and operated by defendant. The complaint is in two counts, one for general negligence under the maxim res ipsa loquitur, and one for specific negligence. It is asserted by plaintiff that the collision occurred while he was stopped on South Western Street for a traffic signal at its intersection with Garden Street in the City of Peoria, and that the force of the impact caused his car to move forward and collide with the rear of a vehicle operated by one Herbert Seiler, which was stopped in front of him. He claims to have sustained personal injuries from this occurrence, and complains here that he was and is entitled to verdict and judgment as a matter of law, and that he should be allowed a new trial confined to the issue of damages. He also asserts that numerous other errors were made by rulings during the course of the hearing from which we conclude that he alternatively seeks a new trial on all issues.

In determining whether plaintiff is entitled to judgment as a matter of law, we have first considered the propriety of a ruling refusing plaintiff’s Instruction No. 7 on res ipsa loquitur since that ruling is said to have constituted, in effect, a dismissal of plaintiff’s count for general negligence. Citing the case of Erckman v. Northern Illinois Gas Co., 61 Ill App2d 137, 210 NE2d 42, plaintiff claims that no election is required of a complainant between his counts for general negligence and for specific negligence. For the proposition that the res ipsa loquitur maxim is applicable to the case of a rear-end collision, plaintiff cites the ruling in Nielsen v. Pyles, 322 Ill App 574, 54 NE2d 753. His Instruction No. 7, which is a combination of IPI instructions numbered 22.01 and 22.02, is as follows:

“Under our law James A. Turner may attempt to prove in either of two ways that Patrick E. Wallace was negligent. He may prove either what Patrick E. Wallace actually did or did not do, or, on the other hand, he may attempt to prove the following propositions:
“First: That the plaintiff just before and at the time of the occurrence was using ordinary care for his own safety.
“Second: That the plaintiff was injured in his person.
“Third: That the injury was received from an automobile which was under the defendant’s control.
“Fourth: That in the normal course of events, the injury would not have occurred if the defendant had used ordinary care while the automobile was under his control.
“If you find that each of these propositions has been proved, the law permits you to infer from them that the defendant was negligent with respect to the automobile while it was under his control or management. If you do draw such an inference your verdict must be for the plaintiff if any injury or damage proximately resulted. But if, on the other hand, you find that any of these propositions has not been proved, or if you find that the defendant used ordinary care for the safety of others in his management of the automobile, then your verdict should be for the defendant.”

It is defendant’s theory that no error was made by the trial court in refusing to give the foregoing instruction on res ipsa loquitur because the jury was adequately instructed by plaintiff’s Instruction No. 4, which is IPI Instruction No. 1.03 to the effect that a fact may be proved by circumstantial evidence.

In our judgment, the res ipsa maxim in Illinois is a principle of law distinguishable from the legal principle that a fact may be proved by circumstantial evidence. See 38 Am Jur, Negligence, § 297; 97 ALR2d 524. Where an effect (the injury) is shown to be one which does not ordinarily occur in the absence of negligence, and if it is shown also that plaintiff has no responsibility for the effect, but that it has been produced by a motion (an instrumentality) within defendant’s control, then it may be reasonably inferred, by reason of the application of the res ipsa maxim, that the unknown force which initiated the motion (set the instrumentality in operation) was an act of negligence on the part of defendant. Metz v. Central Illinois Electric & Gas Co., 32 Ill2d 446, 207 NE2d 305. Where, at the conclusion of the evidence in a case, the specific and actual force which initiated the motion, or set the instrumentality in operation, is known, there is no room for inference that some other unknown negligent act or force is responsible, and all that is left to be decided is whether the known acts of defendant (the force) conform to applicable standards of care. See 38 Am Jur, Negligence, § 297; 33 ALR 791. It is not the function of the res ipsa maxim to permit the characterization of known acts as negligence per se, nor is it its function, where the evidence discloses all the physical causes of the injury (the actual forces), to permit an inference of some other unknown force or fault constituting negligence. 38 Am Jur, Negligence, § 297, p 993. If this were the function of the maxim, the instruction on the res ipsa might be available in nearly every negligence case. We think the res ipsa instruction is to be used only where the evidence at the close of the case has failed to reveal the actual specific forces which initiated the instrumentality that produced the effect, and there is sufficient proof to sustain an affirmative finding on each of the basic facts from which the res ipsa loquitur inference is permitted.

It is said that the res ipsa inferences that may have arisen to establish plaintiff’s prima facie case do not vanish when defendant offers evidence of due care, but remain to be weighed with the evidence. This proposition is correct, but limited to the case where defendant’s proof tends only generally to establish due care, but does not reveal the specific causes of the injury or damage. In relation to this kind of general evidence, the inferences of fault arising from the proof of the basic facts may be more or less compelling, and should not be deemed overcome as a matter of law. If after the maxim has been relied upon to establish a prima facie case, however, the explanation of defendant, or the evidence from any source, has disclosed all the facts attending the injury, and the specific force which initiated the motion is revealed, nothing is left for inference, and the instruction on res ipsa should not be given. See 33 ALR2d 791. The trial court must decide in every case, at the close of the evidence, whether the actual force has been shown (the facts attending the initiation of the instrumentality) and other explanations excluded, so that the res ipsa maxim is inapplicable, or whether the inferences permissible under the res ipsa maxim are compatible with the proof. See 33 ALR2d 791. Although we are mindful that the maxim has been applied in instances of rear-end collisions (see annotation: 151 ALR 876 et seq.) and that it has been applied in such an instance in Illinois, Nielsen v. Pyles, supra, it is also clear that all the facts attending the injury, in the case at bar, are shown by the evidence. We concur with the trial court, therefore, that this case is not an appropriate one for the application of the res ipsa maxim.

Rejection of the res ipsa maxim does not mean that actionable negligence may not have been established, as a matter of law, by the circumstantial or direct proof. 38 Am Jur, Negligence, § 297. We have, therefore, reviewed the record carefully to determine whether plaintiff is entitled to judgment as a matter of law, as claimed. Although we concede that a conclusion contrary to the verdict of the jury might reasonably have been warranted, we cannot say that the verdict is without support in the evidence, and that it is accordingly palpably and manifestly erroneous. There is some dispute in the record as to whether plaintiff’s car was struck while stopped for a traffic light, or whether the collision occurred later after plaintiff had moved out, and then stopped. Defendant’s evidence tends to show that his brakes became defective as a result of the collision and that defective brakes was not the cause of the collision. Defendant pleaded guilty to a charge of having “defective brakes,” but being permitted to weigh this evidence in the light of their own experiences, the jurors were entitled to give it little weight. Defendant testified that after the traffic light changed and the cars ahead of him began to move, he started up his automobile when two boys on a bicycle rode up to his right, one pedalling and one riding on the handlebars. One of the children grabbed the bar between the open vent window and the open main glass in the right front door panel and called out, “Hey, Mister! How about a tow?” Defendant stated that he was distracted by the children’s voices just as traffic in front stopped, and that he immediately applied his brakes upon impact with plaintiff. Defendant’s nephew, Melvin Hayes, a boy of fourteen or fifteen years, was riding with his uncle, and at the trial corroborated the foregoing testimony of defendant, and stated that upon impact, he heard a “pop.” Defendant stated that prior to the collision, his brakes operated normally, but that after the collision they were broken. Plaintiff argues that defendant’s admitted violation of a statute, pertaining to brakes (Ill Rev Stats, c 95i/2, § 211 (a)) constitutes negligence per se, and cites several cases for the proposition that “nonperformance of . . . [a] . . . statutory duty, resulting in injury to another, may ... be pronounced to be negligence as a conclusion of law.” That principle has no application here, however, since it was a debatable question whether defective brakes was the proximate cause of the injury, and the jury accepted defendant’s evidence to the contrary. Whether defendant, in view of the situation created by the boys on a bicycle, acted reasonably toward plaintiff under the circumstances shown by the evidence, was, we think, an issue upon which reasonable men might differ. We conclude that no error was made in refusing plaintiff’s motions for directed verdict and for judgment n. o. v.

During the voir dire examination of a venireman, who had worked many years in a doctor’s office, plaintiff’s counsel attempted to inquire as to whether she had “ever experienced pain,” but was precluded from this inquiry by the court on objection by defendant. Plaintiff states that some people “stoically believe there is no pain or that it is not compensable,” and that the ruling of the trial court prevented him from pertinent inquiry to ascertain the venireman’s state of mind, so that his right of peremptory challenge could be exercised intelligently.

Under Supreme Court Rule 24-1 (Ill Rev Stats, c 110, § 101.24r-l), the nature and extent of examination of jurors by counsel, on issues not concerning matters of law, is left to the sound discretion of the trial judge. The exercise of this judicial discretion is subject to review, however, and the test of whether there was an abuse must be determined by inquiry as to whether the party complaining was, on the whole, accorded a fair opportunity to question the jurors on matters affecting their legal qualifications, prejudices, and attitudes. Inquiries to collateral matters which seem to inordinately prolong the examination, or which seem designed to indoctrinate, condition, or ingratiate are properly excluded. In the present case, the court did not prohibit counsel from inquiring about the prospective juror’s attitudes on pain, or as to whether she had any preconceived religious or philosophic tenets on the subject. We are of the opinion that the trial court might have permitted plaintiff’s inquiry as one designed indirectly to elicit attitudes, but considering that the purpose of the question was not conspicuous from its language, and that the court had a duty to keep the examination within reasonable limits, we think no prejudicial error was made. People v. Moretti, 6 Ill2d 494, 129 NE2d 709. See annotations: 72 ALR2d 905; 82 ALR2d 1420. Counsel could have ascertained the juror’s attitudes merely by asking about her attitudes rather than her experiences. We do not think, on the whole, that he was deprived of a fair opportunity of examining the juror on any appropriate matters.

Plaintiff next complains that the trial court erred in refusing plaintiff’s Instruction No. 14 (IPI 60.-01) to the effect that there was in force a certain statute (Ill Rev Stats, c 95%, § 158 (a)) prohibiting motorists from following another vehicle more closely than reasonable, the violation of which, if that be shown, may be considered in determining the question of negligence. Considering the evidence, we conclude that the court did not err in refusing to give this instruction. A similar instruction was held correctly refused in the case of Savage v. Blancett, 47 Ill App2d 355, 198 NE2d 120, which also involved a rear-end collision at an intersection.

A more serious question is presented by the trial court’s refusal to give plaintiff’s Instruction No. 23 (IPI No. 21.02) on the burden of proof, and the substitution, without comment, of defendant’s Instruction No. 10, as follows:

“The jury are instructed that, with respect to the ailments and disabilities claimed by the plaintiff in this case, the law requires of him, before he can recover for any such ailment or disability, that he prove, by a preponderance of the evidence, not only that such ailment or disability exists, but also that it is the direct or proximate result of the occurrence in question. The jury have no right to guess or conjecture that any ailment or disability complained of by the plaintiff is the result of the occurrence, and if the evidence does not preponderate in favor of the plaintiff on that issue, you cannot allow the plaintiff damages for any such ailment or disability.”

Under Supreme Court Rule 25-1 (Ill Rev Stats, c 110, § 101.25-1), “whenever I. P. I. contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the I. P. I. instruction shall be used, unless the court determines that it does not accurately state the law.” (Emphasis added.) In the case at bar, it was not found by the trial court that plaintiff’s Instruction No. 23 does not accurately state the law; the proffered instruction was refused without comment. We conclude that plaintiff’s Instruction No. 23 does fairly, simply, and correctly state the applicable law, and that it should have been given, and that defendant’s Instruction No. 10, which is not an IPI instruction, but which was substituted for the one offered by plaintiff, is repetitious, the second sentence being a restatement of the first, creates an emphasis favorable to defendant, and contains terms such as “preponderate” that are undefined by other instructions. In Woolley v. Hafner’s Wagon Wheel, Inc., 22 Ill2d 413, 176 NE2d 757, the Supreme Court, after finding that a new trial was required on other grounds, refused to examine the propriety of an instruction offered by plaintiff and denied by the trial court, but observing only that the offered instruction differed from one on the same subject in IPI, said that, “Upon a new trial, instructions will be given in accordance with Supreme Court Rule 25-1.” Similarly: Cooper v. Cox, 31 Ill App2d 51, 175 NE2d 651. We think a new trial is required here, and that instructions should be given in accordance with Supreme Court Rule 25-1.

Plaintiff also contends that the trial court erred in precluding him in opening statement from informing the jury of the ad damnum of his complaint, and that this error was compounded when he was denied the right upon closing argument to evaluate his case monetarily. It is not clear from the record whether plaintiff misinterpreted rulings of the court, on objections by defendant to certain of his statements, and abandoned the subject, or whether he was actually prevented by the court from such argument. Since a new trial is required for error in instructions, it is not necessary for us to decide whether error was made on this matter. For the purpose of clarifying the matter for new trial, however, we think it an accepted practice, within limits enunciated in Caley v. Manicke, 24 Ill2d 390, 182 NE2d 206, that counsel should be permitted to set forth upon opening statement, his theory as to the amount of damage the evidence will show, and to set forth on closing argument, the amount of compensation he deems proved and warranted under the evidence.

In view of our determination, we find it unnecessary to comment on other alleged errors. The judgment of the Circuit Court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

ALLOY and STOUDER, JJ., concur.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leonard Puleo, Defendant-Appellant.
    Gen. No. 50,158. (Abstract of Decision.)
    First District, Third Division.
    May 26, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty and Frederick F. Cohn, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Edward Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by Not to be published in full.

JUSTICE SCHWARTZ.


author: MR. JUSTICE DEMPSEY

text:
    Aniela Gula, Plaintiff-Appellant, v. Janina Gawel, Defendant-Appellee.
    Gen. No. 50,390.
    First District, Third Division.
    May 26, 1966.
    Rehearing denied June 17, 1966.

      George F. Archer, of Chicago (Elias Mula, of counsel) , for appellant.
    Norman J. Barry and Norris J. Bishton, Jr. (Rothschild, Hart, Stevens & Barry, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Aniela Gula, the plaintiff, appeals from a summary judgment entered in favor of the defendant, Janina Gawel.

The plaintiff resided with her husband, as month-to-month tenants under an oral lease, on the second floor of a two-story, two-apartment building owned by the defendant. In her second amended complaint, the plaintiff alleged that while descending the front stairway from her apartment she tripped and fell and was injured. The landlord was charged with negligence in failing to maintain the stairway, which was alleged to be under her control, and in failing to repair it and illuminate it. Negligence was further charged in the failure of the landlord to provide artificial lighting, continuous handrailing, and risers and treads of uniform width and length, all in violation of the Chicago Housing Code. Municipal Code of Chicago, chapter 78, sections 78-11 to 78-20. Violations of both a common-law duty and a duty under the ordinance were thus charged.

The central question is whether the landlord-defendant retained sufficient control of the stairway to give rise to a duty to maintain it in a reasonably safe condition. A landlord, as to those portions of the building over which he maintains control, has a duty toward all persons lawfully on the premises, including tenants, to maintain them in reasonable repair. Murphy v. Illinois State Trust Co., 375 Ill 310, 31 NE2d 305 (1941); Payne v. Irvin, 144 Ill 482, 33 NE 756 (1893). The plaintiff’s pleadings and affidavit in opposition to the defendant’s motion for summary judgment set forth that the defendant maintained and controlled the stairway to the second floor for the common use of all persons rightfully upon the premises; that the oral lease under which the plaintiff occupied the premises provided that the landlord would maintain in safe condition and make all repairs on the premises, including the front stairway leading to the plaintiff’s apartment; that the landlord would keep a key to her premises for the purpose of entering the apartment to make repairs and would use only the front stairway to enter the apartment; that the landlord had made all repairs on the premises, still retained the key and used the front stairway as the usual means of access to the second floor apartment. It was further alleged that the light which illuminated the lower portion of the stairway was controlled by the landlord and that the lease provided, and it was normal custom and usage, for the landlord to turn on the bottom porch light by a switch located on the landlord’s premises.

The defendant’s affidavit in support of her motion for summary judgment and her answers to interrogatories set forth a renting of the second floor apartment and the stairway leading thereto; that the apartment included the front stairway with a door at the bottom which locked upon closing and could be opened by a buzzer located on the second floor; that the door and stairway were exclusively for the use of the occupants of the second floor apartment and were so used. An agreement to make repairs on the stairway was denied.

Applying to these conflicting allegations the rules that affidavits in support of a motion for summary judgment will be strictly construed whereas the opposing party’s affidavits will be construed liberally, and that the affidavits must leave no question as to the movant’s right to judgment (Kern v. Chicago & E. I. R. Co., 44 Ill App2d 468, 195 NE2d 197 (1963)), it appears that a material factual question exists on the issue of control. Proof by the plaintiff of the terms and conditions of the oral lease as alleged by her would support the conclusion that the lease was of the second floor apartment only and negate the contentions of the defendant that the stairway leading to the apartment was included in the lease. Proof of an agreement to make repairs on the stairway, proof of the making of repairs on the stairway, proof of control over its lighting, proof of retention of a right to access to the apartment by the landlord and the use by the landlord of the stairway as the usual or sole means of access would all support an inference that the stairway was a common area for the mutual benefit of the landlord and the tenant and would warrant a jury finding that the landlord retained control. Contrariwise, proof of the allegations of the defendant would support an inference that the premises were under the control of the tenant. In view of the conflicting inferences which could be drawn from the proofs the question of control should be submitted to the trier of fact. Campagna v. Cozzi, 59 Ill App2d 208, 207 NE2d 739 (1965). A motion for summary judgment should be denied if examination of the record fairly discloses the existence of a triable issue of material fact. DesPlaines Motor Sales, Inc. v. Whetzal, 58 Ill App2d 143, 206 NE2d 806 (1965).

The defendant argues, however, that despite the conflicting allegations, summary judgment was proper because as a matter of law a stairway usable only by a single tenant is part of the tenant’s demised premises. The only case cited in support of this contention is Moore v. Lowery, 342 Ill App 239, 96 NE2d 382 (1951). There the tenant leased the entire second floor of a building under a written lease. The only access from the ground floor through the front entrance was the stairway on which the plaintiff fell. The lighting of the stairway was under the control of the tenant. The lease of the premises, the court found, placed the tenant in control of the stairway. Consequently, a judgment against the landlord was reversed. In Moore, the court essentially made a determination that the evidence did not support the factual conclusion that the landlord was in control of the stairway. The stairway being the only access to the second floor was a factor to be considered. We do not consider Moore as holding that a stairway leading only to the second floor is a part of the demised premises of the second floor tenant as a matter of law. Where a stairway leads, the use to which it is put and by whom, are factors to be considered by the trier of fact along with the intention of the parties, the terms of their lease, the responsibility for repairs, maintenance and illumination and all other factors which tend to show control in either the landlord or the tenant.

We believe there is also a triable issue of fact as to whether the landlord breached an alleged covenant to maintain the premises, including the stairway, in a good and safe condition and to make repairs on the premises. This is a separate and distinct ground for recovery and does not depend upon control of the stairway. A landlord is, generally, not liable in tort for a breach of a covenant to repair, but may be liable under special circumstances such as (1) if the covenant carries the obligation to maintain the premises in a safe or reasonably safe condition, (2) if the covenant is made under circumstances which indicate that damages in tort were contemplated by the parties at the time of making the covenant, and (3) if there is a duty to repair apart from the contract. Alaimo v. Du Pont, 4 Ill App2d 85, 123 NE2d 583 (1955); Cromwell v. Allen, 151 Ill App 404 (1909); Mikusz v. Kahn, 207 Ill App 258 (1917).

The defendant denied making an agreement to repair the stairway. However, the plaintiff’s affidavit in support of her allegation as to the existence of an agreement to repair states: “All repairs, with no exceptions, are and have been, since the inception of this tenancy, made by the landlord, defendant Janina Gawel, or her agents.” It does not specify where the repairs were made. Construing it liberally, we read it as alleging that the repairs were made on the stairway. Considering the allegation of covenants to make repairs and to maintain the stairway in safe condition with the fact of making repairs to the stairway, as opposed to an outright denial of the existence of such covenant, it is our opinion that a triable question of fact exists as to the existence and scope of the alleged covenants and that such covenants, if proved, would warrant a recovery for the plaintiff under the principles above expressed.

There is also a triable question of fact regarding the landlord’s failure to provide illumination for the stairway. The plaintiff alleged an agreement (and the normal custom and practice) on the part of the landlord to turn on the bottom porch light, which was controlled by a switch on the landlord’s premises, so that the stairway would be fully illuminated at all times. In her affidavit the plaintiff states that there was insufficient lighting for the stairway inasmuch as the light that illuminated the portion of the stairway at which she fell was controlled by the landlord and was not turned on at the time of the fall.

The defendant’s affidavit is silent on this point and her pleadings contain only a general denial of the plaintiff’s allegations. She argues that there is nothing in this case to establish either actual or constructive notice that the light was not on. This argument incorrectly implies that summary judgment should be granted if the opposing party does not adduce evidence in support of his allegations. The plaintiff alleged the facts upon which her claim was based. It was not necessary for her to plead detailed evidence. Scheinfeld v. Muntz TV, Inc., 67 Ill App2d 8, 214 NE2d 506 (1966). The defendant neither challenged the plaintiff’s theory of recovery nor controverted her factual allegations. On this state of the record summary judgment was improper.

The plaintiff also argues that there was a latent defect in the stairway. However, her second amended complaint did not allege the existence of such a defect, nor did it allege facts from which, even under a liberal construction, we could conclude that she relied on the existence of such a defect as a basis of liability.

The plaintiff’s final point is that the alleged violations of the Chicago Housing Code are prima facie evidence of negligence and must be submitted to a jury. Three specific violations are alleged: the failure to provide sufficient artificial lighting for the stairway, failure to provide a proper handrailing and failure to provide proper risers and treads for the staircase. The violation of an ordinance is prima facie evidence of negligence if the ordinance is designed for the protection of human life or property. If a plaintiff falls within the class of persons the ordinance is designed to protect, and if the violation is the proximate cause of the injury, the plaintiff has a cause of action. Dini v. Naiditch, 20 Ill2d 406, 170 NE2d 881 (1960); Kapka v. Urbaszewski, 47 Ill App2d 321, 198 NE2d 569 (1964); Bell v. Willoughby Tower Bldg. Corp., 46 Ill App2d 45, 196 NE2d 487 (1964).

We have examined the Chicago Housing Code in detail and in our opinion it is a public safety measure. The City Council declared its purpose to be the protection of the “public health, safety, comfort, morals and welfare of the people of the city of Chicago” (section 78-11) and no argument has been advanced here to challenge the findings of the Council that substandard dwellings affect public health and safety. The provisions of the Housing Code concern themselves to a large extent with the condition of premises leased to tenants, and the condition of such premises has an obvious connection with the health and safety of the tenant-occupant. A tenant is clearly within the class of persons designed to be benefitted and protected by the Code.

Further, the Housing Code represents a significant change from common-law standards. At common law, there was no prohibition against letting a tumbledown house. (1 Tiffany, Landlord and Tenant, sec 86 at 557 (1910); Koenigshofer v. Shumate, 68 Ill App2d 474, 216 NE2d 195 (1966). The Code imposes the obligation upon the landlord to refrain from letting or holding out to another for occupancy any dwelling (defined as “any building which is wholly or partly used or intended to be used for living or sleeping by human occupants”) or family unit (defined as “a room or group of rooms used or intended to be used as a housekeeping unit for living, sleeping, cooking and eating”) which does not meet the standards set out by the Code. Likewise, at common law, there was no duty upon the tenant to keep the premises in any particular condition — his duty was to use the premises in such a way as not substantially to injure them so that the estate would revert to the landlord undeteriorated by his willful or negligent conduct, in other words, to avoid waste. 45 ALR, Tenant’s Covenant to Repair, 12, 13 (1926). Section 78-18.1 (a) of the Code places upon the tenant the duty to “keep that part of the family unit which he occupies and controls in a clean, sanitary and safe condition.” The Housing Code thus establishes a duty of care based upon contemporary conditions, values and norms of conduct in this community. We must assume that the ordinance reflects the collective judgment of the community as to the existence of potentially harmful conditions and what duties with respect to those conditions are expected by reasonable men in this community from both landlord and tenant. “The law of torts can only be out of joint with community standards if it ignores the existence of such duties.” Whetzel v. Jess Fisher Management Co., 282 F2d 943 (App DC 1960) at 946.

In defining these standards of care, section 78-14.6 requires every public stairway in a dwelling to be adequately lighted at all times “except that in a two-family dwelling an adequate lighting system which may be turned on when needed by conveniently located light switches shall be permitted instead of a full-time lighting system.” The plaintiff’s allegations concede that there was a lighting system, but state that it was defective because it was controlled by the landlord and was not turned on. Neither of the conditions complained of appear to be in violation of the ordinance.

Section 78-17.5 imposes a general requirement that every stairway shall be kept in safe condition and repair, and its subsections establish specific standards. Section 78-17.5 (b) requires every stairwell and flight of stairs more than two risers high to have “rails not less than two and one half feet high, measured vertically from the nose of the tread to the top of the rail. . . .” There is no requirement that the railing be continuous along the full flight of stairs, that it cannot be in sections with reasonable spaces between them; this is just the plaintiff’s interpretation of the ordinance. It is conceded that there was a railing on the staircase — although there may not have been one at the exact point where the staircase turned. The interval in the railing or the lack of a rail at the point the plaintiff fell does not appear to be a violation of the ordinance.

Section 78-17.5 (f) requires the riser height and the tread width of each flight of stairs to be uniform. The plaintiff states that the width of the tread where the stairway made the turn was insufficient, being only two inches wide. We assume that she means two inches deep, since a tread two inches wide would be suitable only for a dollhouse, not a dwelling. We assume, likewise, that the ordinance, in referring to width, means the dimension between the supporting structures of the staircase and not the dimension from the edge of the tread back to the riser. Otherwise, the ordinance would have to be construed as prohibiting any type of curved staircase. We do not so construe it. Under this view, it does not appear that the ordinance was violated by the defendant.

Thus the alleged violations of the Housing Code are not prima facie evidence of negligence on the part of the defendant and the court did not err in entering summary judgment as to this aspect of the action.

The judgment is reversed in part and affirmed in part. The cause is remanded for further proceedings not inconsistent with this opinion.

Affirmed in part, reversed in part and cause remanded with directions.

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


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Furman Posley, Defendant-Appellant.
    Gen. No. 50,423.
    First District, Third Division.
    May 26, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant was charged with burglary with intent to rape, attempted rape and burglary with intent to commit theft. He was convicted of the charge of burglary with intent to commit the crime of theft in a bench trial, and sentenced to two to eight years in the penitentiary. He was found not guilty of the crime of burglary with intent to rape and attempted rape.

The defendant in this appeal raises two points, (1) that the conviction must be reversed as it rests solely on evidence obtained by a series of illegal searches, and (2) in the alternative, the State failed to prove identification of defendant beyond a reasonable doubt.

The evidence showed that on August 29, 1964, someone entered the home of William Henk in DesPlaines, Illinois, took $50 from Mrs. Henk’s wallet, $5 from the pant’s pocket of her son and left her husband’s papers and wallet strewn about the room.

Shirley Henk, age 15, lived at 1654 Sycamore in Des Plaines with her parents and brothers. Her bedroom was on the first floor of the building adjacent to the dining room. At about 5:30 a. m. on August 29, 1964, she was awakened by a man who was shaking her. She observed the man after she had awakened and identified him as the defendant, and pointed him out in the courtroom. She further testified that the defendant held his hand over her mouth and told her to be quiet. He shone a flashlight in her face. She grabbed his hand and was able to observe him when the light shone on him. She saw his face as the beam from the flashlight struck it. The defendant kissed her arm and tried to pull the covers off of her. She held on to the covers and the defendant permitted her to sit up in bed. She then pushed him and ran out of her bedroom screaming. The defendant also ran out of the bedroom. Shirley ran upstairs to awaken her family. The witness also testified that the defendant “had an odor to him. It was like a shaving lotion odor. It was real heavy.” The defendant ran out of the house through the front door. Shirley testified that her “dad” and brother came down and ran out of the house looking for the defendant. The police were called and appeared in about two minutes. Shirley also testified that after the defendant left the house she noticed that the bedroom drawers had been gone through, and in the living room she found her father’s and brother’s pants on the couch. The wallets taken from them were underneath them and had been gone through. She had occasion to go to the police station at about 7:00 o’clock in the morning and she there identified the defendant as the man who had been in her bedroom. She further testified that the defendant had a deep voice and she also identified the defendant by his voice at the police station as being the same voice that she had heard in her bedroom.

After the burglary had been reported to the police they saw an automobile parked on the street a block from the scene of the reported burglary. Unlike the other cars which were parked on the street, it had no condensation on its windshield. The police looked in the car and found a pair of black shiny shoes, a hat, a sports jacket, and a Green Stamp booklet. They also looked in the glove compartment of the car but found it empty. Because of the report of a burglary to the police in that neighborhood, they disabled the car by pulling the distributor coil. The police then “staked out” the car from a reasonable distance. The police officer did not see the defendant enter the car; however, about an hour later one of the police officers noticed movement in the car and upon approaching the car found the defendant.

When the police first observed the car they ran a check on the vehicle’s registration and discovered that it was owned by the defendant whose address was given as 5600 South Indiana Avenue, Chicago, Illinois. Upon looking inside of the car, after the police officer had noticed a movement in the car, they found the defendant lying on the front seat with his hands under the dashboard. At this point there is somewhat of a discrepancy as to whether the arrest of the defendant was made prior to a second search of the car, or whether it was made after the second search.

Police officer John Storm of the city of Des Plaines, Illinois, testified that he and his partner went to 1654 Sycamore pursuant to a notification that there had been a burglary at that address. Shirley Henk had given him a description of the man who had broken into the house. This description was radioed to other patrol cars by Officer Storm. He then noticed footprints outside of the house, on the grass, and followed them. At about 5:35 a. m. he talked with two other officers who reported a car “which might be involved in this case” parked about a block away. Slightly more than one hour later one of the officers radioed that someone was in the car. When Officer Storm arrived at the car, he watched the other officers search the defendant and his car. He testified that there was a heavy odor in the car and he said it was similar to the odor he smelled at the Henk home.

Officer Storm testified that the search of the car revealed something hanging from the rear view mirror which smelled something like the odor in the Henk home, two screwdrivers and a flashlight in the glove compartment, and a pair of muddy, damp canvas shoes with grass around the soles on the floor under the back seat. The witness identified these shoes in court. He also testified that a pair of blue overalls were found on the floor next to the front seat. He further testified that the defendant’s car was the only one in the area which did not have dew on it.

Officer Storm testified that two other police officers arrived at the car approximately thirty seconds before he did. When asked if the defendant had been placed under arrest at that time he answered in the affirmative. Later on in his cross-examination he testified that Officer Zumbrock, one of the officers who first reached the car, told the defendant “You are under arrest for burglary.” Officer Storm further testified that Officer Zumbrock and he were the ones who went to the vehicle. When asked why Officer Zumbrock had placed the defendant under arrest for burglary, Officer Storm answered because of the circumstances, namely, the breaking into the house and the description of the man. He later, on cross-examination, testified that the reason for the arrest was because of the tools found in the vehicle, the two screwdrivers and the flashlight, and that they looked in the glove compartment first and then placed the defendant under arrest. On cross-examination, when asked why he made the search of the car he answered because of the circumstances surrounding the empty house, where the car was parked; that the registration had been checked and the car did not belong in that area. Officer Storm further on redirect examination testified that the defendant fitted the description he had received from Shirley Henk as the man who had been in her house, and that the search of the car was made after he saw the defendant and the defendant fitted the description he had received.

Officer Lawrence Zumbrock also testified that he observed the car in question at or near 1659 Maple Street in Des Plaines at about 5:30 a. m. The car had no moisture or dew on the windshield or any other part of the vehicle, and that all the other cars parked in the area had dew on the windshield and other parts of the car; that upon opening the door he smelled a heavy odor like shaving lotion, and testified to the shiny black shoes on the rear floor, and a tan plaid sports jacket and a dark green short-rimmed hat on the back seat. The radiator of the car at that time was hot. Officer Zumbrock removed the coil from the distributor. Later, when they observed the defendant in the car, Officer Zumbrock testified they ordered him out of the car, had him place his hands on the roof, searched him for weapons and placed him under arrest. At that time the defendant was wearing the shiny black shoes which had previously been on the floor next to the back seat of the car, and also had on the tan sports coat which had previously been on the back seat. He testified that they then searched the vehicle and found two screwdrivers and a flashlight in the glove compartment. On the rear floor of the car he found a brown paper bag in which there was a pair of brown shoes wrapped in newspaper and three towels. The shoes were very wet and there was mud and grass on them. He also found a dark blue coverall jump suit. The two screwdrivers and the flashlight were not in the car when it was first observed at 5:30 a. m. The brown paper bag containing the wet brown shoes was not in the car when the car was first observed. The dark blue coverall jump suit, likewise, was not in the car when he looked earlier.

Officer Zumbrock testified that the defendant told him that he had never left the car. The defendant testified that the police officers came up to the car and told him to get out, that they were police officers and that they wanted him for burglary and attempted rape. The evidence also showed that the police officer smelled a heavy odor in the vehicle and that he had smelled the same odor on the hands of Shirley Henk and on her bed clothes. The defendant admitted that the shoes were his and that the two screwdrivers were his, as well as the dark blue coverall, which were found in the car.

As the record stands, Officer Storm testified that they searched the car before the arrest, while Zumbrock testified that they placed the defendant under arrest as soon as he came out of the car and before the search, and the defendant testified that when the police officers came up to the car they told him that they were police officers and then placed him under arrest. At the time of the arrest the police had been given the defendant's description, knew that a burglary had been committed shortly before the arrest, only one block away, smelled the same odor in the car as one of the police officers had smelled on the hands and bed clothes of Shirley Henk. Under these circumstances there was probable cause for arresting the defendant at that time. If we are to believe the testimony of Officer Zumbrock and the defendant, the second search of the car was made after the arrest. During the first search nothing was found in the car which was used as evidence. The items which were used in evidence were found as a result of a search following a valid arrest and were properly admitted in evidence.

The court heard the testimony of all of the witnesses, observed their candor or lack of candor while on the witness stand, and the question of credibility was one for the trial court to determine. The trial court could readily have concluded that Officer Storm was confused in his testimony as to the time of the search, and also could have concluded that Officer Storm did not know technically what constituted an arrest. He could have been of the impression that the defendant was not under arrest until taken to the station. But no matter what his understanding of an arrest was, the trial judge, who is the trier of the fact, was the one to determine when the arrest was made and we agree with that the arrest was made prior to the search and upon probable cause and it cannot be said that the search was unreasonable.

The defense cites section 108-1 of the Code of Criminal Law and Procedure (Ill Rev Stats 1963, c 38, § 108-1). That section provides that when a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of protecting the officer, preventing escape, finding the fruits of a crime, or finding the tools used in committing the crime. Since we have found there was a lawful arrest based upon probable cause for believing that the defendant had committed a crime, this statute can be of little comfort to the defendant.

The defendant also cites the case of People v. Erickson, 31 Ill2d 230, 201 NE2d 422, which stated that the question presented in that case was whether the totality of the facts and circumstances known to officers at the time of the search constituted probable cause justifying a search of the automobile without a warrant. We believe that the facts and circumstances known to the officers at the time of the search in question constituted probable cause justifying the search.

Officer Volberding testified that after the defendant had been brought to the police station he spoke to the defendant about searching his vehicle and the defendant consented. A search of the entire vehicle then began. As a result of this search other exhibits were found which were offered in evidence, namely, $50 in money, a screwdriver and a pair of gloves. Behind the passenger’s side firewall, in the interior cowl of the car Officer Volberding found the money, a screwdriver and gloves.

The defendant contends that since the officer testified merely to a conclusion when he stated that the defendant consented to this search, and since no facts were stated, the evidence was inadequate to establish a basis for a consent.

Defendant cites the cases of People v. Steinkraus, 291 Ill 283, 126 NE 202, and People v. Carter, 24 Ill2d 413, 182 NE2d 197. In the Steinkraus case, supra, the conclusions of the witness were admitted over the objection by the defendant. In the present case there was no objection interposed to the question or the answer. In the Carter case, supra, which merely cites the Steinkraus case as authority for the statement that a witness cannot testify as to his conclusions as to what a defendant said, the court did not discuss whether objections had been made or had not been made by the defendant, and held that in that case the witness’s testimony did not fall within that proscription.

The defendant has cited numerous other cases which this court has examined and feels are not controlling herein. The defendant in this case had waived his right to object to the search the third time the police entered his car.

As to the second point, that the State failed to prove the identification of the defendant beyond a reasonable doubt, the defendant cites the case of People v. Burr, 356 Ill 452, 190 NE 902, as authority for the proposition that it did not appear whether at the time Burr was first identified by the complaining witness he was the only colored man in the room. In the instant case there was only one man in the room when defendant was identified. In People v. Boney, 28 Ill2d 505, 509, 192 NE2d 920, the court said:

“However, ‘There is no requirement in the law that an accused person must be placed among a group of persons for the purpose of testing the ability of a witness to identify him as the guilty person.’ (People v. Crenshaw, 15 Ill2d 458, 464), and the manner ‘does not render the identification testimony incompetent, but only goes to the weight of the evidence.’ ”

On authority of that case we believe that the court in weighing testimony could properly have concluded that evidence of identification was properly admitted and could have been considered in the determination of the guilt of the defendant.

The defendant in his testimony denied that he had committed the crime or that he had ever entered the Henk’s home. He said he was working downtown as a clean-up man and decided to get another job. He was driving to O’Hare Airport to interview someone for a job but got lost on the way and his car broke down on a street in Des Plaines. He left the car to get some assistance. After returning to the car he tried to start it but couldn’t. As he was trying to discover why the car would not start, the police came and arrested him. He testified that he did not know where the screwdrivers, flashlight or money came from, but admitted owning the wet shoes. He said the shoes got wet when he washed his car the afternoon before he was arrested. On cross-examination he admitted that the flashlight was his property. He further testified that he had applied for a job with United Air Lines at O’Hare about three weeks before his arrest.

The question of identification was one for the court to determine, and while the evidence is contradictory, it can easily be understood how the trial judge disbelieved the story told by the defendant.

Based upon all of the evidence in this case, we conclude that the searches of defendant’s automobile were properly made and were valid, and that the evidence sufficiently identified the defendant as the perpetrator of the crime. Consequently, the judgment is affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Defendant in Error, v. Johnnie Stokes, Plaintiff in Error.
    Gen. No. 50,690.
    First District, Third Division.
    May 26, 1966.

      William H. Towle, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick A. Tuite, of counsel), for defendant in error.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant was convicted of robbery after a jury trial and was sentenced to five to ten years imprisonment. The chief issue on appeal is whether the court on its own motion should have instructed the jury that evidence of prior crimes which had been properly admitted for purposes of identification should be considered by the jury only as it bore on that issue.

On April 8, 1963, at about 10:30 a. m., Mrs. Beatrice Williams was robbed of $21 in a cleaning store in which she worked alone. After receiving cash from the cash register and putting it in a paper bag, the robber tied Mrs. Williams with clothes hangers and left her in the back of the store. The next day she viewed 250 slides projected onto a screen at police headquarters and identified a picture of the defendant as the man who had robbed her. He was placed in custody and she identified him in a lockup.

At the trial Mrs. Williams testified over objection that the defendant had robbed her at the same place on two other occasions occurring within five months prior to the robbery here in question. On each occasion he took cash from the cash register, put it in a paper bag and tied her up in the back of the store with clothes hangers. Her nine-year-old son Vincent testified that he had been with his mother at the time of one of the previous robberies, and he identified the defendant as the robber.

Defendant testified that he had spent the night before the alleged offense with some friends, Mr. and Mrs. Eugene Coleman, and that he stayed with them until 12:45 p. m. on the day of the offense. The Colemans both testified that this was true, but the details of their stories conflicted substantially with defendant’s narrative. Defendant also denied the two previous robberies.

We will first consider the charge that the court should have advised the jury of the limited purpose of the evidence relating to prior offenses and that the failure of appointed counsel for the defense so to move establishes his incompetence. Defendant relies on People v. Hobbs, 297 Ill 399, 130 NE 779, a prosecution for murder by abortion where evidence of a subsequent abortion resulting in death was held to have been erroneously admitted. The court in that case recognized that as establishment of intent is one of the exceptions to the general rule against the admission of evidence of other crimes, the evidence in question would have been admissible if by it the state had not brought about the introduction of inadmissible evidence relating to another murder. The court made the following statements:

“This limitation should be made clear in the court’s rulings on the admission of this character of evidence and on its rulings to objections made to the arguments of the State’s attorney. The court, when asked, should give instructions clearly pointing out the purpose for which the evidence is admissible and confine the argument to that purpose.” (Emphasis added.) (Page 411.)

In the instant case instructions were not submitted on this issue and no objection was made to the reference to prior crimes in the State’s Attorney’s argument. Counsel’s failure to call attention to the limited use to be made of the evidence of prior crimes may well have been based on what is often regarded as sound trial tactics. Where identity is the sole issue in the case, as here, it is not at all certain that the defendant’s interests would be advanced by the court’s emphasizing that such evidence should be used only to identify him. Indeed, had the court volunteered the advice or given the instructions now urged, counsel might properly have assigned it as error.

This is an unusual case and the standards of fair conduct must be found in the context of the problems here presented. Examination of the record reveals that the Assistant Public Defender conducted the defense in a vigorous and capable manner, and we do not consider that his failure to present an instruction such as the one in question or his failure to ask the court to advise the jury of the limitation on the evidence as to prior crimes is proof of incompetence.

Defendant charges incompetence also in the acquiescence of his trial counsel in permitting Vincent Williams, son of the complaining witness, to testify after the def endant had rested his case, although Vincent had been present in court throughout the presentation of the defense in contravention of an order that all witnesses be excluded. Vincent testified that he saw the defendant during one of the previous robberies. He was not present during the presentation of the state’s evidence and did not hear his mother’s testimony. Nothing in the testimony of the defense witnesses, which was wholly devoted to establishing an alibi, could conceivably have affected his testimony. The matter was brought to the court’s attention through an objection by counsel for defendant, which was later withdrawn, and the permission to testify was properly within the sound discretion of the court.

In its closing argument the State’s Attorney argued that “by the good work of the Chicago Police Department . . . [Mrs. Williams] won’t be held up another fourth time or another fifth time. . . .” He also argued that while in custody awaiting trial, the defendant had cut his hair and shaved off his mustache, as shown by the evidence, that his purpose was to avoid identification, and that “if he could get a makeup kit over there he would be disguised today because he doesn’t want to get the finger in court.” We do not approve of these comments and yet having reviewed the record we can hardly say they deprived defendant of a fair trial. Defendant also contends that the State’s Attorney should have corrected Mrs. Williams when she testified that she identified the defendant in a lineup, since it was brought out on cross-examination that she identified him in a lockup without the benefit of comparison with other persons. This was clearly an inadvertence on the part of both the witness and counsel.

The defendant contends that the court erred in refusing to give defendant’s instruction limiting to purposes of impeachment the use of evidence that he had previously been convicted of armed robbery. Such an instruction, tendered by the state, was given and was adequate for the purpose.

There is no reversible error in the record and the judgment must be affirmed.

Judgment affirmed.

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


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Defendant in Error, v. Emanuel Wade, Plaintiff in Error.
    Gen. No. 51,034.
    First District, Fourth Division.
    May 27, 1966.

      Kirkland, Ellis, Hodson, Chaff etz & Masters, of Chicago (William D. North, of counsel), for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Zagel, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

CHARGE; Murder.

DEFENSE AT TRIAL: Excusable homicide by misadventure.

JUDGMENT: After a trial by a jury the defendant was found guilty; the court entered judgment on the verdict and imposed sentence of not less than 20 nor more than 25 years. The defendant took a writ of error to the Illinois Supreme Court, which court transferred the case to this court.

POINTS RAISED ON APPEAL:

(1) The charge was not proved beyond a reasonable doubt.

(2) The trial court erred in refusing to instruct the jury on the law relevant to “excusable homicide by misadventure.”

(3) The trial court erroneously refused to instruct the jury on the law relevant to verbal admissions.

(4) The trial court erroneously permitted the jury to know which instructions had been requested by the State and which had been requested by the defense.

(5) The argument of the State’s Attorney was prejudicial to the defendant.

EVIDENCE: Testimony of State witnesses.

Certain of the coworkers of the deceased testified in the trial, among them Mrs. Laura Coleman, who stated in her testimony that she left her place of employment shortly after 4:30 p. m. and walked to her car which was parked on Racine Avenue; that after she reached the car she saw the defendant and his wife, Lorene Wade (the deceased), standing approximately 2 feet from each other at a distance of about 10 or 12 feet from the witness. She testified that she heard the defendant say to Lorene: “Oh, you’re not going with me, huh?” She stated that Lorene, while backing away, replied: “Yes, I am going,” and that thereupon the defendant drew “something right fast, real shiny”; that the gun was fired and Lorene fell; that the defendant then walked to Madison Street, turned west and started running.

Mrs. Pearl Albright testified that she and Lorene used to ride to work with a girl called “Shorty”; that Lorene with the witness and Shorty had left the building in which they worked, and turned to go to Shorty’s car; that Lorene was walking about three feet in front of her; that Shorty pulled the car out into the street, and the witness looked back and saw Lorene talking to the defendant. She stated that Lorene said, “I’m going, I’m going,” and that she kept going backwards from the defendant, who followed her; that Lorene then told him that she was not going, at which time the defendant drew his gun and said, “I’m not kidding with you,” and shot her. The witness further testified that “it looked like to me he pulled it from his belt . . . right in front . . . [with] his right hand.” She stated that the defendant then started to walk west, and that she went back to her place of work to have someone call the police.

Sergeant Frank Youhn of the Chicago Police Department testified that on March 5, 1963, he saw the defendant at the 12th District Police Station at about 4:35 p. m.; that the defendant told him he wanted to turn himself in, that he had shot his wife. Sergeant Youhn asked him why he had killed his wife and he answered, “She stole my money.” Sergeant Youhn stated that the defendant told him he had shot her and that he still had the gun; that the defendant took the gun out of his right-hand coat pocket and handed it to the sergeant with his right hand.

Testimony of defense witnesses:

Detective Leonard Zaleski, of the Chicago Police Department, testified that he saw the defendant on March 5, at about 5:00 p. m. at the 12th District Police Station where he and Detective Brown questioned the defendant; that the questions and answers were recorded and the statement signed by the defendant.

The defendant took the stand and testified that he had married Lorene on August 13, 1960, and that they lived together as husband and wife until November 24, 1962, when they separated; that after the separation Lorene lived about three blocks from the defendant’s place of abode. He stated that Lorene had called him on March 4, asking him to meet her on March 5, after work; that after some difficulty in finding a place to park, he met his wife and Mrs. Albright at about 4:30 p. m., on Racine Avenue; that he suggested to his wife that Mrs. Albright come with them and that they go to his car. He stated that he then went back to Mrs. Coleman’s car and told the women that his wife was going with him and that she had said they could go ahead. He stated that Lorene then started back towards him and said, “I just wanted to get you over here, and say I have asked you a dozen times to come down to the house where I live at and you refused to come.” The defendant stated that he then told her he was going on; that as he started to walk away Mrs. Albright walked towards him, holding her hands under her coat; that his wife also started towards him, and he reached into his pocket to get the gun he was carrying; that he pulled the gun out and it went off. He testified that after he walked away from the scene of the shooting he went to his car and drove to the police station where he told the sergeant he had accidentally shot his wife and he wanted to get her to the hospital; that the sergeant asked if he had the gun on him; that he said he did, and gave the gun to the sergeant. The defendant stated that the thumb and three fingers of his right hand are missing; only the little finger is intact. [The jury had the opportunity to observe defendant’s hand, and it was indicated in the argument, without objection, that only parts of his thumb and of three fingers were missing.] The defendant also testified that he was afraid to go to his wife’s house, although he wasn’t afraid of her, and that at the time she came towards him his wife called him “a dirty name” and started towards him with her hand in her purse as though she were coming up with a knife or gun, and that Mrs. Albright was coming towards him from the side, and he got scared; that “the gun went off accidentally. I don’t even remember, all I remember was hearing a shot.” The defendant was then asked to hold the gun in his right hand in the presence of the jury. The defendant also testified that he had ordered the gun by mail from California and it was delivered two or three days before the 5th of March; that previously he had another gun and had loaded the new gun with bullets he had for the old one; that he took the gun with him when he went to see his wife because he had been threatened by her before that time and knew his wife had carried a knife and a gun.

In his written statement to Detective Zaleski, defense witness, the defendant stated:

“She asked me to meet her and we would have a talk about some financial money problems. And then I came down to Madison and Racine to meet her. After meeting her I asked her could I have a talk with her. She said ‘No, not now.’ I told her it would only take about five minutes. She knew what we was supposed to talk about. But after telling me to meet her she refused to keep her promise. I told the girls that she was riding with that I only wanted to talk to her, and this wouldn’t take very long. By this time she had walked to the opposite side of the car that she was going to get into. And when I approached her she raised her purse up and started opening her purse, at this time I don’t know what happened. All of the time that I was there I was frightened because I thought that maybe she had this man that she was living with in someplace close around, to harm me. That’s why I didn’t want to take over five minutes of conversation. I didn’t mean to shoot her. I didn’t have any intentions of shooting her. I had the gun in my outside coat pocket, I had taken it out when she went into her purse and I was frightened. I’m not used to handling a gun, and I’m right handed, I had to use my left hand because I have no fingers on my right hand. I don’t remember pulling the trigger, but I heard the shot fired. I come straight to the police station and gave myself up.”

He further said:

“One thing that made me carry the gun was because I had been threatened. When my wife left me she taken all the money which was about $4,500.00 in cash. This was the financial problem I spoke of. I was trying to get her to tell what she did with the money or would she be willing to give me half of it back. This was my money, all that I had saved in a lifetime. She did call me about the money but refused to tell me what she did with it or to say that she would be willing to divide it.”

The entire statement was read, without objection, to the defendant while he was on the stand in the presence of the jury, and he admitted that he had so stated. In his testimony at the trial the defendant at no time testified that when the gun was discharged he was holding it in his right hand. He also testified that he did not recall pulling the trigger, nor did he know when the gun was discharged.

OPINION:

(1) There is no question that on about 4:30 p. m., on March 5, 1963, in the vicinity of the Economy Products plant between Washington and Madison Streets, in the City of Chicago, a woman went to her death; nor is there any question that her death was caused by a bullet discharged from a gun held by the defendant. The only question is as to whether or not the defendant intended to kill her.

It is true that there were certain slight discrepancies in the testimony of the State’s witnesses with reference to the location of the various witnesses, the defendant and the deceased. The defendant makes much of the fact that his right hand was mutilated — how badly mutilated does not definitely appear — but it is certain that his little finger was intact and that possibly his other fingers were not removed back of the knuckles. In any case, the jury had full opportunity to observe his hand when his counsel requested him to draw a gun with his right hand and to hold it in that hand. Furthermore, in the written statement heretofore referred to, which was made by the defendant to Officers Zaleski and Brown immediately after his arrest, and which was vouched for by the defendant on the witness stand and read to the jury, the defendant said he had taken the gun out of his pocket when his wife went into her purse and thereby frightened him. He said, “I’m not used to handling a gun and I’m right handed. I had, to use my left hand because I have no fingers on my right hand. I don’t remember pulling the trigger but I heard the shot fired.” [Emphasis supplied.]

After careful consideration of the evidence we find that the defendant did not sustain his contention that he was not proved guilty beyond a reasonable doubt.

(2) The defendant also objects to the failure of the court to give two instructions dealing with “excusable homicide.” The instructions which were offered by the defendant were based on the prior Illinois law dealing with homicide [c 38, § 370, Ill Rev Stats 1959]. Under the present Illinois law homicide by misadventure is not defined but is integrated into the definition of homicide as given in Article 9 of the Criminal Code. It is unnecessary to go into the provisions of the Code since the two instructions offered by the defendant were not proper in any case, because they contained the statement that the defendant, at the time of the homicide, must be doing a lawful act. Carrying and drawing a gun is not a lawful act.

The defendant, in answer to the State’s contention, attempts to justify the instructions by arguing that the State has the duty to show that the defendant had no permit to carry the gun. That is not the law. Counsel also advances a rather odd argument that in some portions of Chicago it is necessary that a person go armed. So far, our legislature has not put such a conclusion into the statutes, and until it does the courts must follow the rules of law as laid down by the legislature. The instructions were properly refused.

(3) Counsel also objects to the refusal of the court to instruct the jury with regard to verbal admissions on the part of the defendant. The admission in question is undoubtedly the statement made by Sgt. Youhn that the defendant, when he first talked to him in the police station, had said (in response to a question asked by the sergeant) that he had killed his wife because “she stole my money.” The admission cannot apply to the written statement of the defendant taken by Detectives Zaleski and Brown, which was brought out in the first instance by the defendant’s counsel and was admitted in evidence without objection. In that statement the defendant said that at the time his wife left him she had taken all the money — about $4,000 in cash — ■ and that he intended to talk to her concerning that money. He was trying to get her to tell him what she did with the money, and to find out whether or not she would give half of it back. The instruction as presented was not clear and, in our opinion, would not enlighten a jury of laymen. In support of his contention that the instruction should have been given, the defendant had cited certain cases which, in our opinion, are not applicable because of the form of the instruction.

In People v. Fahrner, 330 111 516, 162 NE 133, the court held that the refusal of the trial court to give the following instruction was not error:

“ ‘The court instructs the jury that verbal admissions should be received with caution and are sometimes the most unreliable of all evidence and the jury should carefully consider all the evidence and circumstances proved in the case in determining the weight to be given to such admissions/ ”

The court said:

“This instruction was objectionable in that it indicates to the jury the weight and credit which should be given to verbal admissions. This is the province of the jury. It was also open to the objection that it might readily be understood by the jury as an opinion of the court concerning the credibility of the evidence of plaintiff in error. The instruction was properly refused.”

In Lipsey v. People, 227 Ill 364, 81 NE 348, a case cited by the defendant, attention is called to the fact that under the rule laid down in Marzen v. People, 173 Ill 43, 50 NE 249, the instruction might be proper if it was limited by a statement that the admissions were deliberately made and fully proven.

In the case before us the instruction did contain the limitation that the admissions must be deliberately made. Under the view which we have taken of the form of the instruction, we do not think this limitation would make the instruction good. In a case with a record such as that of the instant case it is necessary that the instructions given by the court be comprehensive, clear and understandable.

(4) The defendant also objects that the court erroneously permitted the jury to know which instructions had been requested by the State and which had been requested by the defense. The argument of the Assistant State’s Attorney was as follows:

“You will be submitted also, ladies and gentlemen, alternative verdicts; one relative to murder, one relative to two counts of manslaughter, one voluntary and one involuntary. These are submitted to you, again, we submit, one, murder, because we feel that based upon the evidence that you heard there can be only one verdict and that verdict is murder, but the submitting to you of two alternative instructions as to manslaughter is done with the same intention and the same breath as his various defenses were to you.”

The defense moved first that the jury be instructed to disregard the statement, and thereafter moved for a new trial. The court denied the motion for a new trial, and the defendant did not proceed with his motion that the jury should be instructed to disregard the argument.

The defendant relies on Aneals v. People, 134 Ill 401, 25 NE 1022, in which case the court lays down the rule that the instructions should not be marked so as to indicate which side had offered them and that the instructions should go to the jury as the instructions of the court. We do not think the statement made by the State’s Attorney with reference to the instructions was of such a character that the jury would have been prejudiced against the defendant. Furthermore, at the time of giving the instructions the court clearly indicated that all the instructions were given by the court as a part of its duty.

(5) The defendant also argues that the State’s Attorney in his argument so prejudiced the jury that the defendant was thereby deprived of a fair trial. The trial was conducted within a short time after the assassination of President Kennedy. In his opening argument, after both sides had rested, the Assistant State’s Attorney stated “that murder in Chicago . . . will not be tolerated, whether he is a mail order killer through the mails of guns such as these. . . .” In his closing argument counsel who represented the defendant made the following statement:

“Now, over the past two weeks we have been reading in the newspapers quite a bit about mail order purchases of guns. Obviously, from your experience, we know that this is not uncommon, that Emanuel Wade isn’t the only one who has purchased a mail order gun.”

In the State’s Attorney’s closing argument the following occurred:

Mr. Malek: Mr. Wade never told the Sergeant the gun went off accidentally. But he makes a big hullabaloo of the fact that Mr. Wade has sense enough to walk into the 12th District police station. If Mr. Oswald—
Mr. Moran: Object.
Mr. Malek: Mr. Moran brought that case up, Judge, not that case up—
Mr. Moran: He isn’t here, Judge.
The Court: I didn’t hear all that last remark.
Mr. Malek: I started to say if Mr. Oswald—
Mr. Moran: Object. No Mr. Oswald testified, Judge.
Mr. Malek: Mr. Moran brought up that incident, Judge.
The Court: Objection sustained.

Under the circumstances, the statements made were improper; nevertheless, we have to consider that a reference to mail-order purchase of guns was also made by counsel for the defendant; that the court promptly sustained the objection made by defendant’s counsel. We do not think the statements made by the State’s Attorney were so prejudicial that the defendant was deprived of a fair trial.

After the verdict of the jury was rendered the trial court denied defendant’s motion for a new trial. With that ruling we concur, and the judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Affirmed.

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

       Ill Rev Stats 1965, c 38, § 9-1. “Murder.} (a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
      (1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or

        (2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
      (3) He is attempting or committing a forcible felony other than voluntary manslaughter.”

       “The Court instructs the jury that excusable homicide by misadventure occurs when a person in doing a lawful act unaccompanied by any culpable negligence, without any intention of killing, yet unfortunately kills another person. Under these circumstances said homicide shall be considered excusable.”
      “The Court instructs the jury that excusable homicide by misadventure occurs when a person in doing a lawful act, without any intention of killing, yet unfortunately kills another person. Under these circumstances said homicide shall be considered justifiable or excusable and the defendant shall be found not guilty.”

       Refused instruction: “Statement of a witness as to verbal admissions of a defendant should be received by the jury with great caution as such evidence is subject to imperfections and mistakes, and it is only when such admissions are deliberately made that the evidence afforded them is of a satisfactory character.”


author: MR. JUSTICE MCCORMICK

text:
    The Exchange National Bank of Chicago, as Trustee Under Trust No. 17922, and The Pure Oil Company, an Ohio Corporation, Plaintiffs-Appellees, v. The Village of Skokie, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 51,255.
    First District, Fourth Division.
    May 27, 1966.

      Horton C. Kaplan, Assistant Corporation Counsel, of Skokie, for appellant.
    Paul Peter Black, of Chicago, for appellees.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

An appeal was taken to this court by the Village of Skokie. The judgment order appealed from was given and entered on November 30, 1965. The notice of appeal was filed 59 days later, on January 28,1966.

Section 76 of the Rlinois Civil Practice Act (Ill Rev Stats 1965, c 110, § 76, as amended on May 19, 1965, by an act effective January 1,1966) provides:

“No appeal may be taken from a trial court to the Supreme or Appellate Court after the expiration of 30 days from the entry of the order, decree, judgment or other determination complained of. . .

Said amendment was printed, published and made available to the Illinois Bar, in Smith-Hurd, Illinois Revised Statutes 1965, which contained the general and pertinent laws of the State of Illinois through the 74th General Assembly, regular sessions, which adjourned June 30, 1965. The Illinois State Bar Association alerted the members of the bar to this amendment in its Civil Practice and Procedure bulletin, Volume XI, Nos. 1, 2, July-August 1965.

In the instant case, at the time the judgment order was entered on November 30, 1965, the appeal period was 60 days. The right to appeal is purely statutory and must be availed of in strict conformity with the statute. People v. Bristow, 391 Ill 101, 62 NE2d 545.

In Peoples Store of Roseland v. McKibbin, 379 Ill 148, 39 NE2d 995, the court held that an amendment to the statute pertaining to a matter of procedure controls, even though judgment has been entered in the trial court and the cause is pending on appeal.

In Marlas v. Virekeos, 14 Ill App2d 1, 142 NE2d 808, the contention was made in the Appellate Court that the appeal should be dismissed for want of jurisdiction. The judgment was entered on November 8, 1955, when section 76 of the Civil Practice Act provided that notice of appeal should be filed within 90 days after the entry of the judgment. The legislature amended the section on July 19, 1955, reducing the time within which to file the notice of appeal from 90 to 60 days, effective January 1, 1956. The notice of appeal was filed 73 days after the entry of the judgment. The court stated that statutes will not be construed so as to give them a retroactive effect unless a legislative intent to the contrary clearly appears, and that when a change in law merely affects the remedy or law of procedure all rights of action will be enforceable under the new procedure without regard as to whether they accrued before or after such change of law unless there is a saving clause as to existing litigation. [Citing Ogdon v. Gianakos, 415 Ill 591, 114 NE2d 686; Board of Education v. City of Chicago, 402 Ill 291, 83 NE2d 714.] The court further held that there was no saving clause in the statute with reference to judgments rendered prior to January 1,1956, and that the amendment merely affected practice and procedure. [Citing Orlicki v. McCarthy, 4 Ill2d 342, 122 NE2d 513.] The court held that the plaintiff was required to file his notice of appeal within 60 days from the entry of the judgment. [Citing In re Hinton, 12 Ill App2d 366, 139 NE2d 307, abst.] The appeal was dismissed.

In the instant case the plaintiff made a motion in this court to dismiss the appeal. We are bound by the rule laid down in the decisions we have referred to, and the appeal of the defendant, The Village of Skokie, must be dismissed.

The defendant filed what it entitles a Petition for Leave to Appeal. This petition is not in accord with section 76 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 76), nor with Rule 29 of the Blinois Supreme Court, and hence, we will not consider it. If the defendant wishes to file a petition for leave to appeal, complying with the statute and the rules, it will be considered by this court.

Appeal dismissed.

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