author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. W. Q. Thompson, Defendant-Appellant.
    Gen. No. 50,815.
    First District, Fourth Division.
    January 8, 1968.

      W. Q. Thompson, pro se, of Chicago, appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant pro se appeals from a judgment of conviction of rape after a jury trial and from a sentence of four to six years in the penitentiary.

On April 29, 1966, defendant instructed the Public Defender, who had been appointed by the trial court to represent him on appeal, to withdraw and requested our court to appoint other counsel. Thereafter we appointed other counsel and on August 14, 1966, defendant requested that this counsel withdraw. On August 24, 1966, we allowed his second attorney to withdraw and granted defendant pro se additional time to file briefs and an abstract. On May 10, 1967, we granted defendant leave to file his briefs and excused the filing of an abstract.

Defendant’s capable briefs raise the following points on appeal:

1. His attorney’s incompetent conduct of the trial amounted to denial of his right to counsel and a deprivation of due process;

2. The court’s coaching of the prosecutrix at the preliminary hearing and at the trial deprived defendant of due process;

3. There was no evidence of force or resistance;

4. The evidence was not sufficient to establish guilt beyond a reasonable doubt.

The Evidence

The evidence showed that on November 1,1964, defendant left his work at three o’clock in the morning and arrived at 4249 West 21st Street at 3:30 a. m. Prosecutrix and her husband, Sylvester Davis, resided in the second floor rear apartment. Mr. Davis’ sister, Annie Brown, lived with her husband in the second floor front apartment. Mr. Davis’ parents lived in the first floor apartment and another sister, Mrs. Ella Davis, as well as some unidentified relatives lived in the two apartments on the third floor. Mr. Davis operated a twenty-four hour livery service in the basement in which defendant had previously been employed.

Prosecutrix’s sisters-in-law, Mrs. Ella Davis and Mrs. Annie Brown, both testified that as they arrived home from a party at three forty-five in the morning, they met defendant on the second floor of the building; that they asked him what he was doing there and he replied that he had come to visit them; that they both stated that it was strange that he should choose such an hour to pay them his first visit.

The prosecutrix testified that she was first awakened between three and four that morning by someone knocking at her back door; that she went into the dining room and, without opening the door, called out to find out who it was and what they wanted; that she was told it was W. Q. and that he wanted to see her husband and that she told him to look in the livery service; that one-half hour later she found defendant standing over her bed and that he told her: “If you don’t shut your mouth, I’ll kill you!” Her testimony continued:

“I asked him what was he doing in my bedroom, and by that time he had put his hand over my mouth and was jumping in the bed with me and had me down like this and pried my legs open and put his penis into my vagina and made me have an intercourse with him.
“Q. Now, did you make any scream or any outcry?
“A. No. He had his hand over my mouth with one hand and he had me down with the other hand.
“Q. All right. Now, do you know at this time whether or not the defendant completed the act of intercourse ?
“A. No, he didn’t. He act like he was afraid. He jumped up and run out the back door.
“Q. Now, while he was in there, ma’am, was there any conversation between you and the defendant?
“A. He told me if I told my husband, he was going to kill me. If I call the police, he was going to kill me.
“Q. Now what if anything did you do while the defendant was having intercourse with you ?
“A. I was trying to get away from him.”

She also testified that she told the defendant that her husband would kill him if he found out and that the whole incident took no more than five minutes. The prosecutrix also stated that a bathroom light next door was on all night and shone right through her bedroom window, partially illuminating the room and that she had known defendant as a driver of a cab for her husband’s livery service for about a year. After defendant left, prosecutrix went upstairs to her sisters-in-law’s apartment still dressed in her nightgown and crying hysterically, saying that she had been raped. Thereafter her husband and then the police were called. The police arrived at seven-thirty and found that a piece of plasterboard, used as a patch on the back door, was broken away six to eight inches from the door knob. They took prosecutrix to the hospital where she was found to have no cuts or bruises and a smear from her vagina showed no deposits of sperm.

Prosecutrix’s husband testified that he found a cap similar in size, shape, weight and color to the cap defendant wore on that evening in prosecutrix’s bed and both Mrs. Annie Brown and Mrs. Ella Davis testified that this cap was similar in size, shape, weight and color to the cap defendant wore.

Defendant testified that he wanted to use the livery service’s phone and at about three-thirty in the morning he found Mr. Davis sleeping in the livery service, woke him up and asked to use the phone. Mr. Davis told defendant that the phone was locked up and he couldn’t unlock it and defendant left the livery service. Defendant admitted his confrontation with Annie Brown and Ella Davis and stated that we went from there to the basement and left directly from the livery service, arriving home at three forty-five. He denied that he raped the prosecutrix.

Officer Miller testified that the arrest was made at defendant’s home early on the morning of November 1; that the police opened the door a crack and announced themselves; that defendant then ran across the room and was found hiding in a closet. On cross-examination Miller testified that he saw “a reddish mark on her [prosecutrix’s] throat.”

Opinion

Defendant first contends that the incompetence of his lawyer deprived him of his right to counsel under both the State and Federal Constitutions. The general rule is well stated in People v. Morris, 3 Ill2d 437, 121 NE2d 810, cited by defendant. At page 449 the court said:

. . the defendant must clearly establish: (1) actual incompetency of counsel, as reflected by the manner of carrying out his duties as a trial attorney; and (2) substantial prejudice resulting therefrom, without which the outcome would probably have been different.”

Defendant points to two incidents of incompetent conduct. First he claims his counsel should have objected to the admission of the cap into evidence, with the flat assertion that it was incompetent evidence. Upon its offer into evidence, the cap was identified by prosecutrix’s husband as the cap he found in her bed and similar in size, shape, weight and color to the cap worn by defendant. Since a proper foundation was laid, failure of defendant’s counsel to object to the cap’s admission into evidence could not be characterized as incompetence. Defendant’s next point is that he informed his attorney that the prosecutrix was a former mental patient and that his attorney failed to properly investigate and bring this to the attention of the court. Since no basis for this alleged error is found in the record, we cannot determine whether it is well taken. (People v. Lantz, 387 Ill 72, 55 NE2d 78.)

Defendant also contends that the court coached the prosecutrix in violation of his due process rights. At the preliminary hearing the court asked a few questions and at the trial the court also asked a question which was unanswered. The court’s questions were within the bounds of permissible inquiry. (People v. Smith, 18 Ill2d 547, 553, 165 NE2d 333.)

Defendant thirdly contends that there was no evidence that the alleged act occurred by force or against the prosecutrix’s will.

In People v. Elder, 25 Ill2d 612, 186 NE2d 27, the court said at page 614:

“Although there is no fixed rule as to the degree of force required, there must be satisfactory evidence that there was such actual force ... or threat of force that the victim’s will to resist was overcome.” (Cases omitted.)

Defendant argues that the absence of bruises and marks on the prosecutrix’s body and her failure to scream show an absence of force. The prosecutrix in the instant case was surprised by the intruder, she was clad only in a nightgown and was lying in bed in a drowsy state at about 4:30 a. m. In this situation the threat of death in conjunction with defendant’s jumping on top of the prosecutrix without waiting to remove his clothes, covering her mouth with one hand and prying her legs open with the other is sufficient force to sustain a conviction of forcible rape. Further, Officer Miller testified to seeing a reddish mark on her throat.

Defendant’s final contention is that his guilt was not proved beyond a reasonable doubt, arguing principally that the uncorroborated testimony of the prosecutrix is insufficient to convict. Corroboration of the prosecutrix’s testimony is not an unvarying requirement in a rape case but depends instead on the evidence in each particular case. In People v. Mack, 25 Ill2d 416, 185 NE2d 154, the court discussed this requirement saying at page 420:

“We do not, however, regard these cases as establishing an inflexible rule of law requiring in all cases that the testimony of the complaining witness in a rape case must be corroborated. Indeed, we have frequently stated that corroboration is not necessary where the testimony of the complaining witness is clear and convincing. . . . The unvarying rule of law is that in a rape case, as in any criminal case, the evidence must be sufficient to establish the guilt of the defendant beyond a reasonable doubt. Where we have reversed cases because of failure to corroborate the testimony of the complaining witness, we have done so not because of any fixed rule requiring corroboration but because, upon the state of the record in the particular case, the evidence left a reasonable doubt as to the guilt of the defendant.” (Cases omitted; emphasis supplied.)

Although the story told by the prosecutrix would seem to be clear and convincing and require no corroboration, in fact there was corroboration. The evidence showed that immediately subsequent to the alleged act, the prosecutrix went to her sisters-in-law’s apartment crying hysterically that she had been raped. Immediate complaint has been held corroborative of the victim’s testimony. People v. Jenkins, 24 Ill2d 208, 181 NE2d 79; People v. Finley, 22 Ill2d 525, 177 NE2d 149. The finding of defendant’s cap in the prosecutrix’s bed, the broken plasterboard patch in the back door and the defendant’s hiding from the police are further corroboration of prosecutrix’s story. The language of the opinion in People v. Elder, supra, is peculiarly applicable in the instant case, at page 614:

“Her testimony was corroborated by the persons to whom she complained, by the finding of the cap in the vacant lot, and by defendant’s presence near the scene. Where the evidence is conflicting, the credibility of the witnesses is for the determination of the jury. (People v. Walden, 21 Ill2d 164.) In our opinion the jury was warranted in finding that the defendant’s guilt was established beyond a reasonable doubt.”

The judgment is affirmed.

Affirmed.

MCCORMICK, P. J. and ENGLISH, J., concur.

       Mrs. Davis testified that it might have been as late as four o’clock.


source: Caselaw Access Project

author: MR. JUSTICE McNAMARA

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Casimer Walewski, Defendant-Appellant.
    Gen. No. 51,237.
    First District, Second Division.
    January 5, 1968.

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

delivered the opinion of the court.

Casimer Walewski was charged in an indictment with the crime of murder. In a bench trial defendant was found guilty of voluntary manslaughter. He was sentenced to the penitentiary for no less than 7 nor more than 15 years.

The only issue on appeal is “that defendant’s minimum sentence should be reduced to time served.”

At about 1:10 a. m. on November 8, 1964, defendant was found sleeping in the hall of a transient hotel, 1013 West Madison Street, Chicago, Illinois, by the victim, Buster G. Pulliam. The deceased, who was the hotel room clerk, had twice earlier in the evening ejected the defendant from the premises. While the defendant had been a guest at the hotel many times before, on this particular evening he was a trespasser. The defendant was intoxicated. As the victim was leading the defendant off the premises, he pushed the defendant in the back of the head. The defendant turned and struck him in the stomach with a knife inflicting a wound which proved fatal the following day. Defendant was arrested the next day and taken to the hotel where an eyewitness to the stabbing, a maintenance employee of the hotel, was not positive in his identification because the defendant had been beaten severly about his face. This witness positively identified defendant subsequently and also at the trial. Defendant testified that on the evening of the stabbing he was intoxicated; that he could not remember where he was; that the clerk was a “nice fellow”; that he did not stab him, and that he never carried a knife. The arresting officer testified that defendant told him that he had a knife; that it was taken from him when he was assaulted and robbed by three men.

Defendant was found guilty of voluntary manslaughter. At the time of sentencing he was 48 years old. He worked steadily and paid taxes. His previous criminal record was a 22-year-old conviction for molesting a female for which he was placed on three months’ probation. Both sides recognize that defendant was an alcoholic at the time of trial. The court sentenced defendant to the penitentiary for 7 to 15 years.

Defendant urges that the minimum sentence of 7 years is excessive, and that it should be reduced to time served.

The State argues that the sentence imposed was not unwarranted or disproportionate to the sentence shown, and urges that the sentence be upheld. We agree with the State.

Under the provisions of the new Code of Criminal Procedure (Ill Rev Stats, e 38, § 121-9 (b) (4)) reviewing courts have the power to reduce sentence. This power should be used sparingly and only in cases where it appears that some substantial prejudice to the rights of the defendant has occurred. The imposition of sentence is peculiarly within the discretion of the trial court, and unless clearly abused the reviewing court will not interfere. People v. Hobbs, 56 Ill App2d 93, 205 NE2d 503 (1965); People v. Valentine, 60 Ill App2d 339, 208 NE2d 595 (1965).

Defendant points out that this State adheres to the more enlightened principle of redemptive rather than retributive justice. We believe that to be a wise and proper policy to follow. But we also believe that the trial court must continue to have the important role in the determination of what constitutes proper justice at the time of sentencing. In language most appropriate to the instant case, in People v. Brown, 60 Ill App2d 447, 208 NE2d 629 (1965), this court said:

“If the members of the legislature wanted to make the Parole Board the only agency capable of determining when a criminal has been rehabilitated, they would have made it compulsory for the trial court to impose a minimum sentence. The legislature has not done this. We hold, therefore, that the decision of a trial court imposing a minimum sentence on a defendant in excess of the statutory minimum will be upheld, unless there is clear abuse of discretion manifested from the entire record.”

We do not believe the sentence here to be excessive. Defendant, without provocation, took the life of another person. The sentence was well within the maximum imposed by statute. The record does not disclose that it was the result of any bias, prejudice or abuse of discretion. Nor is there anything in the record to indicate that the trial judge might have taken into account improper material in determining the length of the sentence.

Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

BURKE, P. J. and LYONS, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John J. Rooney, Defendant-Appellant.
    Gen. No. 67-23. (Abstract of Decision.)
    Fifth District.
    January 10, 1968.
    Robert F. Godfrey, of East St. Louis, for appellant; John M. Karns, Jr., State’s Attorney of St. Clair County, of Belleville (Kenneth J. Juen, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by JUSTICE GOLDENHERSH. Not to be published in full.


author: MORAN, J.

text:
    Burton H. Marshall, Sr., and Burton H. Marshall, Jr., a Minor, Who Sues by Burton H. Marshall, Sr., His Father and Next Friend, Plaintiffs-Appellants, v. First American National Bank of Nashville, and Dixie Reeves Butts, Executors of the Estate of Macon Cooper Butts, Deceased, Defendants-Appellees.
    Gen. No. 67-5.
    Fifth District.
    January 15, 1968.

      Listeman, Bandy & Hamilton, of East St. Louis, and C. E. Heiligenstein, of Belleville, for appellants.
    Pope and Driemeyer, of East St. Louis, and Carmack Cochran, of Nashville, Tennessee, for appellees.
   MORAN, J.

Plaintiffs appeal from a judgment of the Circuit Court of St. Clair County denying their motion for a judgment notwithstanding the verdict and their alternative motion for a new trial.

This action arose out of a plane crash that occurred on September 7, 1963, near Lakeside Airport in Madison County, Illinois. The flight originated at Nashville, Tennessee. There were four people in the plane: Macon Butts, the pilot and owner of the craft, Virgil Holmes, Burton Marshall, Sr., and Burton Marshall, Jr. Butts and Holmes were killed and the Marshalls were injured.

Plaintiffs alleged in their complaint that they were fare-paying passengers in the plane and that the crash was caused by the negligence of the defendant, Macon Butts. They confined their charge of negligence to pilot error. Defendants claim that plaintiffs were not fare-paying passengers and that they would not be liable in the absence of proof of wilful and wanton misconduct. Defendants also claimed that the crash was caused by airplane malfunction rather than pilot error.

The case was tried to a jury and a verdict was rendered in favor of the defendant. The trial court denied plaintiffs’ post-trial motion for a judgment notwithstanding the verdict and for a new trial. Plaintiffs appeal.

Appellants contend that their status in the aircraft is governed by the laws of Tennessee. This contention was not made in the trial court so it will not be considered on this appeal. Woman’s Athletic Club of Chicago v. Hulman, 31 Ill2d 449, 202 NE2d 528. Appellants also contend that the trial court erred in giving an interrogatory that required an answer only if the jury first found a verdict in favor of plaintiffs. This would have been a sound contention had appellants made their objection in the trial court. However, since this was not done, we will not consider this point on appeal. Woman’s Athletic Club of Chicago v. Hulmán, supra.

Appellants next contend that the trial court committed reversible error in permitting an instruction to go to the jury on the question of their status because they were passengers as a matter of law by reason of the undisputed testimony of Marshall, Sr. Whatever agreement existed to fly Marshall to Illinois was between Butts and Marshall and since Butts was dead, Marshall was the only one left who could testify on this point.

Marshall testified that he had been acquainted with the defendant, Macon Butts for about two or three years prior to the accident. This was a casual acquaintance which arose from meeting him at the Nashville Airport. Butts owned a Comanche Piper aircraft, but Marshall had never ridden with Butts prior to the time of the accident. Prior to September 7, 1962, Marshall and his son had flown Marshall’s aircraft to Lakeside Airport but returned to Tennessee by automobile because of unfavorable weather conditions.

On the Wednesday evening before September 7, 1968, Marshall, Sr. asked Butts if he were going to do any weekend flying. He explained that he had left his plane in Illinois and that if Butts were going to do any flying, he would pay expenses and whatever was reasonable for Butts to fly him and his son to Illinois to pick up his airplane. He testified that Butts was agreeable to this arrangement and expressed an interest to do it in order to get some flying time in his airplane on cross-country flights, as he would like to gain some instrument time. He said the specific arrangement was that he was to pay for the gas, oil and any other reasonable cost that he felt Butts would want to charge. Although no specific dollar amount was agreed upon, he was to pay Butts the cost of the trip after they returned to Nashville. He testified that it would be impossible to calculate the cost of the trip accurately prior to that time. He further testified that Butts called him back on Friday evening and asked where he wanted to go. “I told him. He said he was going to do some flying Saturday morning and that if I would meet him at the airport we would make the trip. We also discussed the agreement that I was to pay expenses and whatever was normal.”

On cross-examination Marshall, Sr. admitted that it was possible that he had told Butts that he did offer to pay part of the expenses or whatever was justified; it was possible that he had previously told a notary public that he would pay part of the expenses or whatever was justified; that there was no specific arrangement other than that he would pay the expenses and whatever was reasonable; that it was assumed that he would pay expenses there and back to Nashville, although there was nothing specifically said about the return trip; that there was no specific arrangement as to where or when payment was to be made.

Defendants argue that the omissions, discrepancies and improbabilities in the testimony of Marshall, Sr. made the status of plaintiffs a question of fact for the jury rather than a question of law for the court. Testimony of an unimpeached witness which is not in itself inherently improbable or false and which is not contradicted by positive testimony or circumstances intrinsic or extraneous cannot be rejected even by a jury. Larson v. Glos, 235 Ill 584, 85 NE 926. However, in Hadley v. White, 367 Ill 406, 11 NE2d 813, our Supreme Court said: “As this court has frequently pointed out, the testimony of a witness may contain, within itself, its own impeachment and he may be contradicted by what he states as well as by adverse testimony, and there may be so many omissions, discrepancies and improbabilities in his testimony as to justify a court or jury in disregarding it in its entirety.” Id. at 412.

In our opinion, the testimony of Marshall, Sr., even though uncontradicted by any other witnesses, was so equivocal on the purported arrangement between Butts and Marshall, Sr. concerning payment for the trip, that the trial court was justified in submitting the question of plaintiffs’ status to the jury. Marshall admitted there was no specific arrangement as to what expenses would be paid and that he had previously told a notary public that he would pay part of the expenses or whatever was justified.

Appellants next contend that the trial court committed reversible error in allowing two of defendants’ witnesses to give expert testimony that the crash was caused by the elevator cables becoming jammed by the radio power packs prior to the crash. These packs are about the size of automobile batteries and mounted above the elevator cables.

The first expert witness for the defendant was Charles Midyett, a licensed pilot. A lengthy hypothetical was posed to him regarding facts relevant to the issue but concluded that the statement: “Assuming . . . that it (the power packs or electrical equipment) did interfere with the operation of the elevator cables in such a manner that the elevator cables were jammed. . . His answer indicated that the power packs might or could have fallen on the cables while the plane was in flight. On cross-examination he admitted that it was more likely that the power pack was thrown from its mounting by the impact of the plane crash.

The other witness, Robert Odum, is also a licensed pilot. The hypothetical posed to him also included the assumption that the cables were jammed by the radio power packs while the plane was still in flight. The objection that it was speculative was overruled. On cross-examination the following interchange occurred:

“Q. Wouldn’t it then be more likely, since the airplane was completely ripped apart in that area, that the power pack equipment would be torn off at the time of the crash when the fuselage was completely ripped apart, rather than falling off in the air?
“A. Could be, yes, sir.
“Q. So that your suggestion that, that it might have fallen off up in the air is a guess on your part as something that could have happened ?
“A. Yes, sir.
“Mr. Heiligenstein: At the conclusion of this witness’s Odum’s testimony, we move to strike the testimony regarding his opinion as to the fact that he says the power packs probably could have fallen out of their moorings in the aircraft while in the air and jammed the cables, on the grounds he testified on cross-examination that it was a guess on his part. Even an expert witness must have an opinion based on a reasonable degree of certainty.”

This motion was overruled by the trial court.

The admissibility of expert testimony is conditioned upon the laying of a proper factual foundation. Expert opinion which is lacking in proper foundation is not admissible. A hypothetical question must be based on evidence which justifies or supports it. We are unable to find sufficient evidence in the record which would tend to show that the power packs were out of their normal position and interfering with the cables while the plane was in flight.

The opinion of an expert witness should constitute a definite and reasonably certain opinion of the witness and not mere conjecture, probability or speculation. In Kanne v. Metropolitan Life Ins. Co., 310 Ill App 524, 34 NE2d 732, a doctor testified that death might have resulted from chronic myocarditis. There was no evidence that the deceased had ever suffered from any illness or infirmity of this kind. The Appellate Court held that the expert’s opinion was based on guess, surmise and conjecture. “Mere surmise, guess or conjecture is never regarded as proof of a fact, and a jury will not be allowed to base a verdict thereon.” Id. at 530. In Wallace v. Yudelson, 244 Ill App 320, a doctor’s opinion was based on an assumption that a growth had been present at an earlier time. There was no evidence to support this assumption. The court held that the opinion was so highly speculative that it was not proper or competent for jury consideration. In Schwartz v. Peoples Gas, Light & Coke Co., 35 Ill App2d 25, 181 NE2d 826, an expert was allowed to answer a hypothetical question relating to a product with which he was not familiar. The court said:

“The normal function of a witness is to state facts within his personal knowledge. To this general rule there is an important exception making admissible the opinion of an expert. He is considered qualified to provide the often necessary function of drawing inferences from facts which the jurors would not be competent to draw. As a safeguard upon the reliability of such testimony, however, the expert witness, no matter how skilled or experienced, will not be permitted to guess or state a judgment based on mere conjecture.” Id. at 31-32.

The opinions of the two witnesses were mere conjectures. Without sufficient basis in fact they testified that the power packs probably interfered with the cables while the plane was in flight. They did not give an explanation which might lend some credence to this conclusion but merely stated that it was more likely that it occurred while the plane was in flight. On cross-examination they admitted that their opinions were guesses and that it was more likely that it occurred upon impact. Their opinions were based on conjecture of a fact without any evidentiary basis.

The defendant cites 20 Am Jur, § 795, as authority for allowing the testimony. The portion cited reads:

“An expert witness’ views as to probabilities is often helpful in the determination of questions involving matters of science or technical or skilled knowledge. Expert opinion testimony may be given in terms of an opinion that something might, could or would produce a certain result.”

However, this section continues with these qualifications:

“It is necessary, however, that the facts upon which the expert bases his opinion or conclusion permit reasonably accurate conclusions as distinguished from mere guess or conjecture. Expert opinion testimony should not be allowed to extend to the field of baseless conjecture concerning matters not susceptible of reasonably accurate conclusions. An expert’s opinion must be in terms of the certain or probable, and not of the possible. Such a witness is entitled to give his best judgment or opinion on the matter under inquiry, but not to give answers which are mere guesses.”

A reading of the record indicates that the testimony of these witnesses falls more under the “baseless conjecture” rather than the “probabilities” provisions of the above quotation. It was error for the court to admit this testimony. We believe that the error was sufficiently prejudicial to warrant the granting of a new trial.

For the reasons herein set forth, the judgment of the Circuit Court of St. Clair County is reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

EBERSPACHER and GOLDENHERSH, JJ., concur.

       The Illinois Aeronautics Act, as amended, section 22.83 (Ill Rev Stats 1965, c 15%, par 22.83) provides: “No person riding in an aircraft as a guest, without payment for the ride, . . . shall have a cause of action against any airman of such aircraft or its owner ... in case of accident, unless the accident was caused by the wilful and wanton misconduct of the airman of such aircraft or its owner . . .”


author: EBERSPACHER, P. J.

text:
    William J. Cochran, Plaintiff-Appellee, v. Walter B. Parker, Defendant-Appellee, and Dorothy Jones, Administrator of the Estate of Dona H. Jones, Deceased, Defendant-Appellant.
    Gen. No. 67-90.
    Fifth District.
    January 17, 1968.

      Wagner, Conner, Ferguson, Bertrand & Baker, and James W. McRoberts, of East St. Louis (F. D. Conner and Royce B. Sheppard, of counsel), for appellant.
    C. E. Heligenstein, Huber & Cummings and Johnson, Ducey & Feder, of Belleville (Philip G. Feder, of counsel), for defendant, Walter B. Parker.
   EBERSPACHER, P. J.

The suit involves an automobile collision wherein the plaintiff, William J. Cochran, was riding as a guest passenger in the automobile of the defendant, Walter B. Parker. The automobile driven by the defendant Parker collided with an automobile driven by Dona H. Jones. The collision occurred in the early morning hours of December 25, 1964. As a result of the collision Dona H. Jones was killed. Dorothy Jones, the Administrator of the Estate of Dona H. Jones, deceased, was made a party defendant. Plaintiff suffered serious personal injuries as a result of the collision.

It appears from the evidence that the plaintiff and the defendant Parker met in a tavern on Christmas Eve, 1964. The plaintiff and Parker testified that they remained at the tavern about three hours and that each consumed four or five glasses of beer. The plaintiff and Parker then left the tavern and drove in Parker’s automobile to a second tavern on the outskirts of Belleville, Illinois, a distance of five or six miles. They remained at the second tavern approximately three more hours and according to their testimony consumed two or three bottles of beer each. Both the plaintiff and Parker testified that they were not intoxicated nor felt any effect from the beer.

The plaintiff and Parker left the tavern sometime after midnight and were proceeding towards the plaintiff’s house in Parker’s car. Parker was driving. Parker drove in a westerly direction on West Main Street. West Main Street is a four-lane through street and is intersected by numbered streets including North 82nd Street. The speed limit for this portion of West Main Street is posted at 35 miles per hour.

In the interim the decedent and her 13-year-old son were at the home of the decedent’s father-in-law. They had arrived at about 8:00 p. m. for a Christmas Eve gathering. At about 11:00 p. m. a light lunch was served. No alcoholic beverages were consumed. The decedent and her son left shortly before 1:00 a. m. to go home. The decedent proceeded in a southerly direction on North 82nd Street. Her intention was to turn left on Main Street. A stop sign at the intersection of West Main and 82nd Street requires 82nd Street traffic to stop before proceeding onto West Main Street.

None of the parties to the proceeding could recall the collision or what transpired immediately prior thereto. The last recollection of the plaintiff was leaving the tavern. Parker last remembered being at the intersection of 74th and West Main Street. The 13-year-old son of the decedent last remembers his mother stopping at the stop sign at the intersection of 82nd Street and West Main Street.

There were no other eyewitnesses to the collision. One witness observed the Parker automobile at the intersection of 78th and West Main, a distance of four blocks or a quarter of a mile from the collision. He estimated the speed of the' automobile to be 75 miles per hour at that point. He testified that shortly thereafter he heard the squeal of tires and the collision. A police officer of the Belleville Police Department identified the point of impact as between the passing lane and the driving lane of the westbound lanes on West Main Street. He also identified 200 feet of skid marks left by the Parker automobile veering or swerving to the left up to the point of impact.

Upon this testimony, most of it virtually undisputed, the jury returned a verdict in favor of the plaintiff and against the defendant, Dorothy Jones, Administrator of the Estate of Dona H. Jones, deceased, and assessed the plaintiff’s damages at $26,486 and in favor of the defendant Parker as to the plaintiff’s complaint. It is from the judgment on this verdict that the defendant, Dorothy Jones, Administrator of the Estate of Dona H. Jones, deceased, appeals.

In support of the defendant Jones’ effort to reverse the judgment that defendant alleges that the verdict is contrary to the manifest weight of the evidence and that the court erred in denying the defendant’s motion for a mistrial based on alleged misconduct of a juror.

As this court stated in Brayfield v. Johnson, 62 Ill App2d 59, 210 NE2d 28 (1965) and again in Frozen Food Express v. Modern Truck Lines, Inc., 79 Ill App2d 84, 223 NE2d 275 (1967):

“A court of review can set aside a verdict as being against the manifest weight of the evidence only when it is obvious or clearly evident that the jurors have arrived at an incorrect result. Romines v. Illinois Motor Freight, Inc., 21 Ill App2d 380, 158 NE2d 97 (1959). It is for the jury alone to determine the credibility of witnesses and the weight of the evidence on controverted questions of fact. A verdict based on conflicting evidence and approved by the trial judge should not be disturbed on appeal unless contrary to the manifest weight of the evidence; that is, an opposite conclusion must be clearly evident. Ritter v. Hattebert, 14 Ill App2d 548, 145 NE2d 119, (1957). Manifest means clearly evident, clear, plain, indisputable. Schneiderman v. Interstate Transit Lines, Inc., 331 Ill App 143, 72 NE2d 705 (1947).”

The record demonstrates that a question of fact existed on the issue of liability of one or both defendants. It can hardly be disputed that the defendant Jones’ decedent emerged onto a major thoroughfare from a stop sign in front of the defendant Parker’s automobile and that the defendant Parker was speeding approximately a quarter of a mile from the collision. From this evidence the jury determined that the decedent’s negligence was the cause of the plaintiff’s injuries and that the defendant Parker was not guilty of willful and wanton misconduct. Such a result is not obviously incorrect. Since there is evidence of decedent’s negligence, we will not supplant our judgment for that of the jurors who saw and heard the witnesses.

The defendant next contends that reversible error was committed when the trial judge refused to grant a mistrial due to alleged misconduct of a juror. The voir dire examination by agreement of the parties was not reported. However, the record has been supplemented by affidavits of the trial judge and plaintiff’s counsel. It appears from the affidavits that during the voir dire the trial judge asked a prospective juror, Hoelscher, his occupation, to which the juror responded that he was a clerk with the Missouri Pacific Railroad and had been so employed for 13 years. He further stated that this constituted his work history. No further questions were asked of the juror concerning his employment by either court or counsel and the juror was eventually accepted and seated as a regular juror. During the course of the trial, the court anticipated continuing the trial beyond the normal closing time and inquired of the jury if this would inconvenience any of them. The same juror informed the court that he had a part-time job and it would be necessary for him to notify his employer. He further informed the court that his part-time employment was that of a bartender.

Two trial days later, and after all testimony was completed and all parties had rested, the defendant Jones made the motion for a mistrial or in the alternative to release the particular juror and seat the alternate qualified juror. The plaintiff and the defendant Parker urged that the error, if any, had been waived and upon the suggestion by the court that if there were no objection the court would continue the trial with the alternate juror, replacing Hoelscher, defendant Parker’s attorney objected, and the motion was overruled.

Ordinarily, such objection should be made as soon as the irregularity or misconduct is discovered, or as soon as the course of the proceedings would permit, unless the irregularity could not have been waived or remedied when it was first discovered. 66 CJS, New Trial, § 62. Without passing on the question of waiver, it is our opinion that the allegation of error is without merit. Our decisions make it clear that such a motion will be denied unless it is established not only that the juror answered falsely but also that prejudice resulted. Department of Public Works and Buildings v. Christensen, 25 Ill2d 273, 184 NE2d 884 (1962); Kuzminski v. Waser, 314 Ill App 438, 41 NE2d 1008 (1942). In the instant case the defendant has established neither.

The record, as submitted, does not indicate when the juror was first employed as a part-time bartender. This defendant has only assumed that the juror falsely answered the questions concerning employment on voir dire examination, and has assumed that the juror was prejudiced in this case, because of the testimony of plaintiff’s and his driver’s use of intoxicants on the night of the collision. The questions and answers given concerning employment did not affect the qualification of the juror and in view of the juror’s voluntary statement during the course of the trial it is clear that he had no intention of concealing his employment as a bartender. Furthermore defendant assumes, and would have us assume, that one engaged part time in the dispensing of alcoholic beverages would be prejudiced in favor of those whom evidence shows were users. Even though this defendant did not use all of her peremptory challenges, and urges that had the juror’s part-time employment been disclosed on voir dire, this defendant would have exercised such challenge to remove this juror, we are of the opinion that reversible error was not committed by the trial court in exercising his discretion in this matter.

In Workman v. Goldford, 86 Ill App2d 403, 230 NE2d 574 at 576 we pointed out:

“The trial judge is afforded discretion in the allowance or refusal of a motion for a new trial and his decision in this regard will not be reversed except for a clear abuse of such discretion. (Citing authority.) Furthermore, in passing on a motion for a new trial, the trial judge has a greater latitude in passing on questions of fact than on questions of law and a reviewing court will not reverse a ruling on a question of fact unless a clear abuse of discretion is shown. (Citing authorities.) ”

For the foregoing reasons the judgment of the Circuit Court of St. Clair County is affirmed.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.


text:
    In re Petition for Removal of Frank Bower, Jerry D. Black, Bernard Edwards, Forrest Bunting, and John Cinder, Objectors-Appellants.
    Gen. No. 67-36.
    Fifth District.
    December 30, 1967.
    Rehearing denied February 2, 1968.

      Paul A. Croegaert, of Olney, for appellants.
    Fred McCollum and James B. Moses, of Smith, McCollum & Riggle, of Flora, for appellees.
   MORAN, J.

Objectors appeal from a decree of the Circuit Court of Richland County upholding the sufficiency of five petitions for recall filed pursuant to Division 7, Article 4 of the Illinois Municipal Code.

Section 4-7-1, chapter 24, Illinois Revised Statutes, 1965, relating to the removal of officers in commission from municipalities provides:

“Every incumbent of an elective office, under this article, except a judicial officer and an officer of a court, whether elected by a popular vote or appointed to fill a vacancy, is subject to removal at any time by the electors qualified to vote for members of the council. The procedure to effect the removal of an incumbent of such an office shall be as prescribed in Sections 4-7-1 through 4-7-5.”

The initial procedure to effect this removal is provided in section 4-7-2 of the statute and requires the filing, with the municipal clerk, of a petition signed by electors amounting to at least 45% of the number of votes cast for Mayor at the last preceding general quadrennial municipal election. This subsection of the statute also provides that the petition “shall contain a general statement, of not more than 200 words, of the reasons for which the removal is sought.”

Separate petitions were filed in the office of Kathryn Flanders, City Clerk, on September 14, 1966, demanding an election on the question of removal from office of Mayor Frank Bower and Commissioners Jerry D. Black, Bernard Edwards, Forrest Bunting and John Cinder. No charges of malfeasance or misfeasance in office were made and the reasons for seeking the election were identical on each petition and are as follows:

“1. Refusal to permit electors of Olney to vote on an ordinance for the issue of waterworks revenue bonds and the proposed lake and other construction mentioned in the ordinance, (Ordinances 66-21 and 66-26), in spite of repeated petitions by the electors.
“2. Willingness to impose on the people who use water and sewer in Olney high rates which are unnecessary and which impose hardship on residents with low and fixed incomes.
“3. Willingness to disregard expressed wishes of more than 1,500 persons to save Bird Haven in its natural state.
“4. Efforts to relocate the city dump to land near the west edge of Olney directly north of Route 250 where it will be a nuisance to residents in the western part of Olney and a pollution hazard to Fox Creek.”

Within the five days allowed by chapter 24, section 4-7-4 of the statute, identical objections were filed attacking the validity of the petitions and the petitions and objections thereto were consolidated for hearing in the Circuit Court of Richland County and for purposes of this appeal. It was stipulated that for the purpose of the hearing, the evidence presented as to the petition regarding Mayor Frank Bower and the court’s ruling thereon would be the same on the remaining four petitions if the same issues were raised and evidence presented thereon. It was further stipulated that the number of signatures required on each of the petitions was 1,458.

The original petition against Mayor Frank Bower consisted of 115 sheets containing thereon 1,710 signatures. The original petition against Commissioner Jerry D. Black consisted of 117 pages containing thereon 1,723 signatures. The original petition against Commissioner Bernard Edwards consisted of 115 pages containing thereon 1,708 signatures. The original petition against Commissioner Forrest Bunting consisted of 115 pages containing thereon 1,679 signatures. The original petition against Commissioner John Cinder consisted of 116 pages containing thereon 1,744 signatures.

Appellants first contend that the general statements of the reasons for which the removals are sought are insufficient because they do not charge acts or failure to act, which constitute misfeasance, malfeasance or nonfeasance in office. The Act does not specifically require that the recall be based upon misconduct in office. There are no Illinois decisions construing the requirements of the removal statute. In the instant case the trial court reached the following conclusion:

“However, I want to state for the record that I consider the grounds stated in the petitions to be legally insufficient to justify removal of the officers named in the petitions, but as I construe the law applying to this issue, it is not a matter for me to determine but rather one for the electorate.”

In 28 Am Jur, Initiative, Referendum and Recall, § 60, p 476, the following is stated:

“Where, however, petitioners are required to state only generally their grounds or reasons for demanding a recall, the petition need not state the cause for removal with the same particularity as would be necessary in pleading in a judicial pleading, the purpose of such statement being to furnish information to the electors upon which a political and not a legal issue may be raised at the election.
“Under a statute providing that the statement of grounds or reasons for the recall is solely for the information of the electors, it has been held that the question of the sufficiency of the grounds is a question for the electors and not for the court.”

In 62 CJS, Municipal Corporations, § 516, page 961, the same general rule is contained:

“Where the charter requires only that the petition shall contain a general statement of the grounds of dissatisfaction on which the removal is sought, it is sufficient that it appears in general terms that the official conduct of the officer whose recall is sought has been in opposition to the will and preferences of his constituents and obstructive to the best interest of the city. Under such provision it is the province of the electors, and not of the court, to determine the sufficiency of the grounds relied on for removal.”

Appellants point out that there are several jurisdictions in opposition to the view that the grounds for the recall of an official are purely political in nature. Yet this result is usually based upon a specific statutory or constitutional provision which requires an allegation of misfeasance, malfeasance or nonfeasance. See, e. g., Minn Const 13, § 2; Cudihee v. Phelps, 76 Wash 314, 136 P 367. Also such a result may be arrived at because of the ease of initiating the recall procedure. For example, in Tolar v. Johns (Fla App), 147 So2d 196 (1962), only 200 signatures were required to initiate a petition in the city of Fort Lauderdale. This might also have been a factor in Joyner v. Shuman (Fla App), 116 So2d 472 (1959), where signatures of only 20% of the electors were required.

Section 4-7-9 of the Municipal Code provides that no remand petition shall be filed against any officer until he has actually held office for at least twelve months. If the intent of the legislature was to limit the grounds of recall to misfeasance, malfeasance or nonfeasance in office, there would certainly be no reason for allowing a one-year waiting period. If, however, the legislature meant the statute to be interpreted that an elected municipal official holds office at the pleasure of his constituents, then the one year provision is a period of time in which the public official is beyond the scope of the recall provisions.

We conclude that the electors of a municipality have the right to vote for the recall of their officials whenever 45% of their number submit a petition setting forth reasons for this recall, and that these reasons need not be acts constituting misfeasance, malfeasance or nonfeasance in office. There is no basis for interpreting the statute to require grounds of misconduct sufficient for a court when the only apparent reason for a recall is to furnish information to the people of the community upon which a political issue, rather than an issue at law, is raised. The lower court correctly ruled that this is a matter for the electorate and not the courts.

The second objection to the petitions is that the petitions do not contain a sufficient number of signatures as required by law, because of irregularities concerning some of the signatures. It was stipulated that the number of signatures required on each of the petitions was 1,458. The five petitions contained 1,710, 1,723, 1,708, 1,679 and 1,744 signatures. It was further stipulated that evidence introduced and rulings made upon the petition seeking removal of the mayor (1,710 signatures) would be binding as to the other petitions.

Each petition contains over one hundred sheets and each sheet is verified by an affidavit made by the circulator. The objectors called two witnesses who had circulated some of the pages in the petition and had signed the affidavit on each page. Maurice Stafford was a circulator and obtained signatures on twelve different sheets which totaled 194 signatures, while Barbara Keen circulated four sheets which contained 53 signatures. Each of these circulators signed the affidavit at the bottom of each sheet which stated that the signatures were genuine. Ten of the sheets circulated by Stafford and the four circulated by Keen were examined by the court. The court ruled that 23 of the 247 signatures obtained by these two witnesses were improper and therefore stricken. A majority of these 23 signatures were stricken upon the court’s finding that if any two were in the same handwriting, one must be stricken. Others were stricken upon the testimony of the two circulators that wives had signed their husband’s names.

The objectors contend that since the statute provides that the petition verified by an affidavit is prima facie evidence that the signatures are genuine and true, that the rebuttal of this presumption would shift the burden of proof to the party submitting the petition. Since there was no proof of the validity of the signatures, the objectors contend that all the signatures obtained by the two circulators, instead of the twenty-three, should be stricken because of the alleged fraudulent affidavits attached thereto.

In support of this position the objectors cite various authorities which state that the circulator must make an affidavit that each signature is genuine, and if the affidavit is shown to be false, the petition loses its prima facie presumption of genuineness. See, e. g., Sturdy v. Hall, 201 Ark 38, 143 SW2d 547; State ex rel. McNary v. Olcott, 62 Ore 277, 125 P 303. Thus the burden would be upon the petitioners to prove the validity of each signature obtained by the two circulators. However, in view of the factual situation of this case, we need not consider this contention.

The pages circulated by these two contain 247 signatures. Even if we were to hold all of these signatures to be invalid, there still remain a sufficient number of uncontested names on four of the five petitions. The petition for the removal of Commissioner Bunting initially contained 1,679 signatures. The striking of 247 signatures from this petition would reduce the number of signatures to 1,432, twenty-six short of the required 1,458.

However, evidence was not introduced as to irregularities on all the pages circulated by Stafford and Keen. Two sheets (numbers 29 and 43 of the Bower petition, numbers 12 and 26 of the Bunting petition) were not called into question. These two sheets contain a total of thirty-eight signatures. In the absence of any evidence that there was any falsity attached to the affidavits on these sheets, we cannot question the prima facie presumption created by the affidavits on these sheets. Therefore, these thirty-eight names must be added to the 1,432 which were likewise unquestioned, leaving a sufficient number of signatures on the petition relating to Bunting.

The decree of the Circuit Court is accordingly affirmed.

Decree affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: TRAPP, J.

text:
    Sonya Schek, Conservator of the Estate of Oscar Schek, Incompetent, Plaintiff-Appellant, v. Chicago Transit Authority, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 50,564.
    First District.
    January 3, 1968.

      Leo S. and Daniel Karlin, and Jerome H. Torshen, of Chicago (Leo S. Karlin and Jerome H. Torshen, of counsel) , for appellant.

      Heineke, Conklin & Schrader, of Chicago (William H. Schrader and Edwin A. Strugala, of counsel), for appellee.
   TRAPP, J.

Plaintiff appeals from an order of the trial court, final and appealable in form, dismissing an action for personal injuries. The complaint, originally filed by Oscar Schek, alleges that he was injured by the negligent operation of defendant’s train while he, Schek, was upon the station platform in the exercise of his ordinary care for his own safety. Subsequent to the filing of the complaint, the conservator was substituted as plaintiff.

Defendant’s motion, with pertinent exhibits attached, alleged that Schek was a news vendor engaged in the operation of his business at the time of the occurrence under a certain license agreement dated February 9, 1960, with Union News Company, which granted to Schek the privilege of operating a newsstand in the subway, and that by the agreement, Schek undertook to indemnify and save harmless Union News and the defendant against liability for injury to any person, including himself, in connection with the operation of the newsstand.

In the motion it is further alleged that Union granted such license pursuant to an agreement with the defendant whereby Union was granted the exclusive right and privilege of installing, maintaining and operating newsstands on the defendant’s subway passenger platforms. In such agreement, Union undertook to indemnify defendant against all actions and claims, including (1) injury to any person arising through the negligence of Union’s licensees, or to which their negligence should contribute, and (2) damages for injury to any licensee of Union while in or upon the platform of the defendant when engaged in the news vending business. The agreement between the defendant and Union, effective at the date of the contract between Schek and Union, was dated October 22, 1954.

In its motion, defendant contends that the action is barred by either, or both, the undertaking of Schek to indemnify the defendant, or the indemnity of the defendant given by Schek’s licensor, Union News, but that Schek had no greater right against the defendant than had Union.

The agreement, dated February 9, 1960, between Schek, called the licensee, and Union, called the licensor, provides that Union grants to Schek the privilege of operating a newsstand at a named station of defendant; that the newsstand and its appurtenances are the property of Schek, to be located in and upon a space platted as per a drawing specified, and that Schek is to maintain and repair the same in a good condition; that Schek is to pay the sum of $80 per month on the first of each month, subject to cancellation on five days’ written notice, or upon the termination of the agreement between Union and the defendant. The agreement provides that Union shall have a first lien on licensee’s interest, which may be foreclosed in equity, and for which a receiver may be appointed. Union reserved the right to inspect plaintiff’s newsstand, and there was provision that Union could specify that certain merchandise be sold. The agreement also provided that it was to be:

“. . . subject and subordinate to all of the terms and conditions of agreement. . . .”

between the defendant and Union.

The language of exculpation and indemnity at issue is as follows:

“Licensee hereby assumes all risk of and liability for loss or damage to property owned by Licensee or third persons, and any injury to or death of any persons (including Licensee), by reason of the condition or operation of said newsstand, and Licensee shall indemnify and save harmless Licensor and Chicago Transit Authority from all claims for any such loss, damage, injury or death, whether caused by the negligence of Licensor, Chicago Transit Authority, their agents or employees, or otherwise. Licensor shall provide a policy of public liability insurance, insuring Chicago Transit Authority, Licensor and Licensee, against any loss, cost, damage or expense by reason of injury to or death of any person or person’s arising from, growing out of, or in any way connected with the operation of the licensed premises, up to the limits of $25,000 for injury to or death of any one person, and $100,000 for injury to or death of any number of persons in any one accident. Licensee shall pay Licensor for procuring said insurance $2.00 per month.”

The agreement in effect between the defendant and Union gives the latter the exclusive right and privilege to install, maintain and operate newsstands on the premises of the defendant, and, in effect, permits Union to operate, or license others to operate (a) newsstands then owned by defendant, (b) newsstands owned by Union, and (c) newsstands owned by licensees of Union.

The agreement for indemnity between defendant and Union is in the following language:

“Company shall indemnify and hold harmless Authority by insurance coverage in amounts and with a company or companies satisfactory to Authority, against all loss and against all suits, actions, claims liability, judgments for damages, costs and expenses arising from the sale of merchandise hereunder and including but not limited to the following:
“(1) . . . (Negligence of Union employees or licensees). . . .
“(2) Damages, however caused, to property owned by or in the custody of Company or its licensees or for injury (including death) to any servant, agent, employe or licensee of Company or its licensees, while in or upon the stations, platforms, mezzanines, structures, or premises of Authority when engaged in or about said business;
“(3) . . . (Injuries from any article left on the premises by Union or licensees). . . .”

It is defendant’s claim that by the terms of the agreement, Schek assumes all risk of injury to himself from any cause whatsoever, for it is contended that the “operation” of the newsstand is a term of unlimited scope and involves all activities of Schek while upon the premises of the defendant. In its argument defendant includes injuries caused to Schek by defendant’s negligent employees while he was picking up change from the platform or engaged in wiping the newsstand, and it is said that Schek’s agreement required him to indemnify defendant if persons delivering merchandise or otherwise dealing with him were injured by defendant’s negligence. By logical extension, the argument would include the requirement that Schek indemnify defendant if a customer of Schek making a purchase at the newsstand was injured by defendant’s negligence.

These contentions must be considered in the light of several factors.

Exculpatory clauses are strictly construed against the parties they purport to benefit. Valentin v. D. G. Swanson & Co., 25 Ill App2d 285, 167 NE2d 14; Book Production Industries v. Blue Star Auto Stores, 33 Ill App 2d 22, 178 NE2d 881. The agreement of one party to protect another from the consequences of his own negligence must be unequivocal and the construction should be reasonable and equitable to the parties. Moss v. Hunding, 27 Ill App2d 189, 169 NE2d 396.

The agreement specified that Schek was the owner of the newsstand operated at and upon an area specified in a plat of defendant’s station, and that he was responsible for its maintenance and repair. The Union-defendant’s agreement provides that other licensees may use newsstands owned by the defendant or by Union. It may be reasonable for a licensee to assume risk of injury at a newsstand which he maintains, or owns.

With respect to the indemnity and liability insurance provision, it is to be noted that coverage is provided for injuries to others growing out of, or in connection with, the operation of the “licensed premises.”

While agreements for exculpation and for indemnity are not precisely the same, we have carefully examined authorities by defendant upon indemnity agreements as indicative of the extent and scope of the agreement at issue. None of them contain such language of limitation to a stated area and structure as is in the agreement at issue. In Russell v. Shell Oil Co., 339 Ill App 168, 89 NE 2d 415; DeTienne v. S. N. Nielsen Co., 45 Ill App2d 231, 195 NE2d 240; and Newberg Const. Co. v. Fischbach, Moore & Morrissey, Inc., 46 Ill App2d 238, 196 NE2d 513, the language providing for indemnity is so broad as to cover the performance of construction work contracted for and was not limited to specified areas or structure. Again, in DeTienne and in Newberg, the court referred to complex agreements relating to large construction jobs wherein the parties directly negotiated and apportioned the risk. For example, in Newberg the owner paid sums in addition to the contract amount to provide for procuring insurance for the several risks by indemnitors.

In Haynes v. Montgomery Ward & Co., 47 Ill App2d 340, 198 NE2d 548, the indemnifying agreement provided for coverage of any and all injuries to employees while on the premises, or while enroute to perform contract services. We find no language limiting the agreement to a specified area such as a newsstand.

An exculpatory agreement was considered in Owen v. Vic Tanny’s Enterprises, 48 Ill App2d 344, 199 NE2d 280. This agreement provided that the defendant should not be liable for injuries sustained by a member in, on or about the premises. Again, there is no apparent limitation upon the extent or scope of the agreement.

Defendant cites Bentley v. Palmer House Co., 332 F2d 107. In that case the language of indemnity assumed liability for injury arising out of the use of exhibit space. The injury complained of was incurred in, or as a part of the use of such exhibit space. The opinion does not purport to apply the indemnity agreement to public spaces of the Palmer House.

By its terms the exculpatory provision of the agreement at issue is not coextensive with the provisions in the contract of Union and defendant, whereby Union indemnified defendant for injuries to employees or licensees of Union:

“. . . while in or upon the stations, platforms, mezzanines, structures, or premises of Authority when engaged in or about said business; . . . .”

This latter provision was in effect when Union executed the contract with Schek, but it was not used. The difference in language authorizes the conclusion that assumption of risk for personal injuries by Schek was limited to injuries in or at the newsstand owned and maintained by him.

The language of the cause at issue is not so clear and unequivocal that, under the rule of strict construction of exculpatory agreements, this court will say that the plaintiff is barred from his action by his agreement.

It has been contended that Schek’s status upon defendant’s premises was that of a licensee only, and that by reason of such status the defendant only had a duty not to willfully injure. Such argument is inaccurate in its semantics. By the agreement, he was a licensee for the purpose of conducting a defined business. Without such authority his operation of the newsstand would be a trespass or a tort. Black’s Law Dictionary. The agreement which defines Schek as a licensee to conduct the business does not define his status as a person upon the premises controlled, or in the possession of another. By the terms of the agreement he was authorized to place his personal property at a specified place upon the premises, required to pay rent periodically, and he was not only authorized but obligated under the agreement to carry on the business. He had an interest subject to lien and foreclosure. The several rights and obligations are inconsistent with the conclusion that Schek was a licensee in the sense that defendant only had a duty not to willfully injure.

It is not necessary at this time to determine whether or not Schek was a tenant possessed of a chattel real arising from the placing of his newsstand upon defendant’s premises at a platted location for which Schek paid rent upon terms of the quality of a tenancy at will. The agreement between Union and the defendant expressly provided that licensees of Union should have free access to defendant’s premises as was necessary for the transaction of the business, subject to the rules and regulations of the defendant. This agreement, in its entirety, reflects that Schek came upon the premises under an express agreement for the purpose of transacting any business in which he, the defendant and Union were mutually interested, and is sufficient to grant the status of a business invitee upon the premises of defendant for the mutual benefit of Schek, defendant and Union. Milauskis v. Terminal R. Ass’n, 286 Ill 547, 122 NE 78; 28 Illinois Law and Practice, p 39, Negligence, § 52.

Defendant has cited Senrow Concessions, Inc. v. Shelton Properties, Inc., 10 NY2d 320, 222 NYS2d 329, 178 NE2d 726, as purporting to show that a business licensee does not acquire an interest in the premises. It does not undertake to pass upon the issue of whether a licensee is a business invitee, or the equivalent of a trespasser.

The language of the agreement between Schek and Union providing that such agreement “shall be subject and subordinate to” the agreement between the defendant and Union does not alter our conclusion. The terms “subject to” and “subordinate to” are frequently defined in terms of one another. See 40 Words and Phrases, p 596. The words “subject to” are words of qualification and limitation and not of contract. Consolidated Coal Co. v. Peers, 166 Ill 361, 46 NE 1105. The term in legal parlance does not connote personal obligation. Helvering v. Southwest Consol. Corp., 315 US 194, 86 L Ed 789, 62 S Ct 546. One taking an assignment “subject to the terms of lease” does not assume contractual liability on the assignee to carry out the covenants of the lease. Coles Trading Co. v. Spiegel, 187 F2d 984. The words “subordinate to” alone mean standing in an order or rank below another. 83 CJS, 571. There is no language in the agreement authorizing a conclusion that Schek assume the obligation of indemnity existing in the contract between defendant and Union.

We give no consideration to defendant’s argument that the order of the trial court should be sustained upon the basis of an alleged record showing that Schek willfully and wantonly placed his head in the path of the train. Such matters were not presented in the motion to dismiss, and the trial court was not asked to pass upon a motion for summary judgment. The argument founded upon a statement of the nature of the injury is not a part of the record on this appeal.

The order of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with the views expressed herein.

Reversed and remanded.

SMITH, P. J. and CRAVEN, J„ concur.


author: MR. JUSTICE CRAVEN

text:
    James A. Geocaris, Plaintiff, v. Charles R. Bangs, et al., Defendants, and Charles R. Bangs, et al., Counter-claimants-Appellants, v. William Reed, Counterdefendant-Appellee.
    Gen. No. 51,271.
    First District.
    January 3, 1968.

      Heineke, Conklin & Schrader, of Chicago (William H. Schrader and Edwin A. Strugala, of counsel), for appellants.
    Eugene T. Noonan, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellee.
   MR. JUSTICE CRAVEN

delivered the opinion of the court.

Plaintiff filed a two-count complaint. In the first count, he asserted a cause of action against the defendants as owners and operators of a dramshop. This count alleged that the defendants caused the intoxication, in whole or in part, of one William Reed and that Reed, while so intoxicated, assaulted the plaintiff. This count of the complaint was predicated upon the Dram Shop Act (Ill Rev Stats 1963, c 43, § 135). The second count of the complaint was an action for .assault against the defendant Reed, the allegation being that Reed “maliciously struck and beat” plaintiff.

The defendants named in Count I filed a counterclaim against the counterdefendant, William Reed, setting forth the nature of the initial complaint, alleged a duty on the part of Reed as a patron in the dramshop to the counter-plaintiffs, and asserted a right of action against Reed for indemnity in the event that the plaintiff should recover from the defendants in the original action. The circuit court dismissed the counterclaim and made an appropriate finding, pursuant to the provisions of section 50 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 50), that there was no just reason to delay an appeal. The order of dismissal was final in nature in that the counterclaim was dismissed and counterclaimants were ordered to take nothing by their counterclaim and that defendant go hence without day. A notice of appeal was filed, the original appeal being to the Illinois Supreme Court. That court, on motion of appellee, found that no substantial constitutional question was presented and transferred the cause to this court.

After the filing of briefs and after oral argument, the appellee filed a motion to dismiss the appeal. That motion and the suggestions in support thereof and in opposition thereto have been taken with the case. The appellee, Reed, asserts that the order appealed from was not final and that, by reason of this fact, this court is without jurisdiction of the appeal. The lateness of the motion is immaterial if, in fact, this court has no jurisdiction. It requires no citation of authority to establish that an appeal should be dismissed by this court on its own motion, if necessary, if there is want of jurisdiction due to the absence of a final appealable order.

The appellee relies upon Hawthorne-Mellody Farms Dairy, Inc. ex rel. Lumbermens Mut. Cas. Co. v. Elgin, J. & E. Ry, 18 Ill App2d 154, 151 NE2d 393 (1st Dist 1958). In that case, a third-party complaint was dismissed without prejudice and there was no express finding pursuant to section 50 of the Civil Practice Act. The court there held that the absence of such a finding made the order not appealable since the order in that case disposed of less than all the claims or rights of fewer than all of the parties.

The dismissal of a third-party complaint for indemnity, coupled with a finding by the trial court that there is no just reason to delay an appeal, is a final and appealable order. Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 (1965); Parsons v. Kuhne-Simmons Co., 76 Ill App2d 121, 221 NE2d 168 (4th Dist 1966); Sargent v. Interstate Bakeries, Inc., 86 Ill App2d 187, 229 NE2d 769 (1st Dist 1967). The motion to dismiss the appeal is denied.

As we view this record, the sole issue presented by the pleadings is whether, as a matter of law, the counter-plaintiffs may maintain an action in the nature of indemnity against Reed. In Coffey v. ABC Liquor Stores, Inc., 13 Ill App2d 510, 142 NE2d 705, the court held that such an action could not be maintained. The court there stated:

“While the liability imposed upon liquor sellers by the Dram Shop Act is purely of statutory origin, it is nonetheless a liability which the liquor dealers agree to accept and be bound by upon entering the liquor business. In all the cases which were directed to our attention on appeal, permitting indemnification as against a tortious third party as an exception to the joint tort-feasor rule, the parties were all innocent parties who established the right of indemnification as against contractors, or servants, or others. It is difficult to reconcile the position of a tavern operator who is found guilty under the provisions of the Illinois Dram Shop Act with the innocent party position established by such precedents, since by the terms of the Act the tavern operator must necessarily be a tort-feasor and so penalized by statute. As a consequence, since the Illinois Dram Shop Act does not grant any rights of indemnity or subrogation or contribution and is penal in nature (Wanack v. Michels, 215 Ill 87, 94-96, 74 NE 84), and since on principle, indemnity or contribution or subrogation is allowed only to innocent parties (Wanack v. Michels, supra; Geneva Construction Co. v. Martin Transfer & Storage Co., 4 Ill2d 273, 282-283, 122 NE2d 540), we do not believe that it would be consistent with the general equitable principles which sanction the third-party action, nor consistent with objectives of the Dram Shop Act to allow the third-party procedure attempted in the case before us (Economy Auto Ins. Co. v. Brown, 334 Ill App 579, 586-589, 79 NE2d 854; People v. Metropolitan Casualty Ins. Co., 339 Ill App 514, 518-519, 90 NE2d 565). By the Dram Shop Act the Legislature has expressed the public policy of our State. In our opinion the allowance of the claim for indemnification sought herein would violate the policy so expressed.” Coffey v. ABC Liquor Stores, Inc., 13 Ill App2d 510, 514, 142 NE2d 705, 707 (4th Dist 1957).

In the case of McDonald v. Trampf, 49 Ill App2d 106, 198 NE2d 537 (1st Dist 1964), the court considered the same area of public policy and concluded that the driver of an automobile who causes an accident could not get contribution from tavern operators who caused or contributed to the intoxication of the driver. The court there stated that the right to collect under the Dram Shop Act was given only to the person injured or the personal representative.

Section 135 of chapter 43 provides for an action by persons who are injured in their person or property, or means of support, by any intoxicated person, against any person or persons who shall have caused the intoxication, in whole or in part, of such person. This right of action is extended to the owner or lessor of dramshop premises and the statute, in its present form, is a substantial reenactment of the Dram Shop Act of 1874. The Dram Shop Act is penal in nature and it has as its object and purpose protection of the public and the placing of responsibility for injuries caused by intoxication. This is clear from section 1 of the Act (par 94 of c 43) and from the many cases discussing it. See Emory v. Addis, 71 Ill 273; Dworak ex rel. Allstate Ins. Co. v. Tempel, 17 Ill2d 181, 161 NE2d 258 (1959); Lichter v. Scher, 11 Ill App2d 441, 138 NE2d 66 (1st Dist 1956); Standard Industries, Inc. v. Thompson, 19 Ill App2d 319, 152 NE2d 500 (1st Dist 1958). The Dram Shop Act does not grant any rights of indemnity nor does it expressly preclude indemnity.

In Coffey, the conclusion of the court was that the allowance of an action for indemnity would violate the public policy of the state as expressed in the dramshop legislation. We are unable to agree. The remedy afforded by the statute is in no way diminished by the allowance of indemnification in a case such as this. The plaintiff does not suffer a decrease in his rights.

Under the allegations found in these pleadings, it may well be that the evidence will establish that the defendants’ liability is by reason of the statute and that the action of the intoxicated person, being intentional and malicious, may have been the active and primary cause of the plaintiff’s injury. Under this set of allegations, it was error to dismiss the counterclaim.

The right to indemnity, as succinctly stated in Sargent v. Interstate Bakeries, Inc., stands upon the principle that everyone is responsible for the consequences of his own acts. We know of no exception to this rule as it relates to intoxication that is relevant under these pleadings. In the Sargent case, the court discusses the rule prohibiting contribution among joint tort-feasors and the development in Illinois of indemnification as an exception to the rule. The reasoning of the court in that case is equally applicable here.

At this, the pleading stage, it is impossible to ascertain the right of the counterplaintiffs to indemnity. It is possible, however, to ascertain that the counterplaintiffs may be entitled to indemnity and that neither the Dram Shop Act nor public policy absolutely preclude the right to indemnity. We can only look at the pleadings and not speculate upon subsequent evidentiary matters. The third-party complaint need not establish an absolute right to recovery but need only show a possibility of recovery. As stated in Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630 (1967), a third-party complaint should not be dismissed unless it appears from the pleadings that in no event could the third-party plaintiff have an action over against the third-party defendant, and unless it does so appear the issue should go to the jury to determine the respective rights and liabilities of the third-party plaintiff and the third-party defendant inter se. See also Blaszak v. Union Tank Car Co., 37 Ill App2d 12, 184 NE2d 808 (1st Dist 1962).

The judgment of the circuit court of Cook County dismissing the counterclaim is reversed and the cause is remanded to that court for further proceedings consistent with the views herein expressed.

Reversed and remanded with directions.

SMITH, P. J. and TRAPP, J., concur.


author: MR. JUSTICE SULLIVAN

text:
    Richard Tompkins, Plaintiff-Appellee, v. Twin Oaks Dairy, Inc., Defendant-Appellant.
    Gen. No. 51,446.
    First District, Third Division.
    January 4, 1968.
    Rehearing denied February 9, 1968.

      Joseph A. Bailey, and Jerome H. Torshen, of Chicago, for appellant.
    James G. Andros, of Chicago (Jack C. Krause, of counsel) , for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal by defendant from a judgment in favor of plaintiff. The suit was for personal injuries sustained by plaintiff on defendant’s business premises.

Defendant contends on appeal that it cannot be held liable to plaintiff because, as a matter of law, plaintiff was guilty of contributory negligence and defendant was guilty of no negligence, and that improper and prejudicial conduct of plaintiff’s counsel deprived Twin Oaks Dairy, Inc. (Twin Oaks) of a fair trial.

Plaintiff Tompkins is a milk truck driver employed by the F & K Milk Service. At the time of the occurrence his regular run was Twin Oaks. That was the only dairy he called on. Plaintiff had been servicing Twin Oaks five days a week for approximately nine months prior to July 13,1961, the date of the accident.

Loading and unloading of trucks at Twin Oaks were accomplished from a hydraulic lift or platform at the alley entrance to the dairy. The platform, measuring five feet by eight feet, is covered with a checkerplate floor called a diamond safety plate. The platform is just above ground level when in a down position and can be raised to the height of the truck bed or floor for loading or unloading of the truck. Any gap between the raised platform and the truck is covered by a loading plate, also cleated, attached to the platform.

The general procedure followed in the operations is that a truck pulls up behind the plant, usually quite close to the building. A Twin Oaks’ employee would put a lubricating solution on the platform. The base of this solution was composed of 45 % cocoanut oil and has other ingredients which are to keep dirt and sludge from accumulating so it can be easily washed off. The substance is purchased in jelly form and is mixed with water in a ratio of about 9 pounds of lubricant to 50 gallons of water. It is put onto a conveyor chain, which serves to bring the milk out from a cooler in the plant, and onto the platform to facilitate the moving of the crates across the cleated plate. Then the platform is raised to truck level for unloading. The empty bottles, carried in metal crates (each of which holds four bottles) stacked four crates high, are taken off the truck and onto the platform. The platform is then lowered and the crates of empty bottles are removed. Next to the platform is a metal pole. Five or six feet up on the pole is a “squawk box” used for communicating with the people within the plant when milk is to be sent out. Protruding from the pole are three projections or rungs. Plaintiff described them as thin pieces of metal sticking out from the pole. The bottom and top rungs project in the same direction and the center rung projects at a right angle to the other two. Behind the platform is a chain conveyor.on which the crates of filled bottles are sent from the cooler. As they reach the platform a Twin Oaks’ employee pulls them off with a hook and drags them onto the platform. Some of the cocoanut oil solution adheres to the bottom of the crates thereby making it easier to pull the stacks of crates across the safety plate. The platform is again raised and the truck is loaded. Then the platform is lowered and the truck driver descends from his truck by means of a step or rung on the side of his truck.

On July 13, 1961, Tompkins arrived at Twin Oaks and the usual procedure for unloading and loading his truck was followed including the pouring of the cocoanut oil solution onto the platform. Plaintiff testified that he had been assisted in the operations by Benny Medler, a Twin Oaks’ employee. On that day, after the truck was loaded, no one was around to lower the platform. He stood there and waited and no one came so he decided to get down via the pole ladder. He had never before seen anyone use the pole as a ladder. He walked across the platform, went to stick his foot on the top rung and swung out into the air, went around and came down to the floor on both feet. He said that he got up and went to his truck and then realized that he had hurt his foot. He did not see Medler after the accident and he talked to no one at Twin Oaks after he fell. It was brought out at the trial that on deposition plaintiff stated that he had not put either foot on the rungs of the pole ladder before he fell and that he was on the platform just before he fell. Plaintiff did not know what had caused his foot to slip.

Medler testified that he neither heard nor saw plaintiff involved in the occurrence above described, but right afterward Tompkins told him he slipped on the steps going down from the lift. That conversation occurred just after Medler turned around from lifting up the plate.

Twin Oaks presented expert testimony that it was customary in the dairy industry to use a lubricant of some sort to help the men in sliding or dragging the crates across the metal loading areas.

A verdict in favor of plaintiff in the amount of $6,500 was returned by the jury and judgment was entered thereon. Defendant appealed.

Defendant first contends that it cannot be held liable to plaintiff because, as a matter of law, plaintiff was guilty of contributory negligence. It is clear that plaintiff was an invitee of defendant and that he was familiar with the premises here involved from having been at the plant five days a week for a nine-month period prior to the accident. He had seen the Twin Oaks’ employees use the lubricant on the conveyor and the loading platform. On the day in question he saw Medler put the solution on the platform and therefore knew it to be slippery.

Plaintiff testified that he fell while attempting to use a pole ladder to descend from the loading platform. His normal course of descent, one he had followed for nine months, was to use a step or rung on the side of his truck after the loading platform was lowered. By his own admission he had never seen anyone use the pole as a means of descent. The only prior use of the pole, to his knowledge, was as a prop for the “squawk box” for communications with the employees in the plant cooler.

In the case of Day v. Barber-Colman Co., 10 Ill App2d 494, 135 NE2d 231, the court affirmed a judgment n.o.v. entered by the trial court in favor of defendant. Plaintiff therein was working on the installation of an overhead door manufactured and sold by defendant. Plaintiff, while installing the door failed to anchor the incompleted door although he generally took such precaution. The court said on page 511:

“The question of due care on the part of the plaintiff is ordinarily one of fact for the jury, but when the facts bearing thereon rest solely upon his own testimony, and the attendant circumstances that are not in dispute, the Court then has the duty of determining, as a matter of law, whether he, in fact, used ordinary caution for his own safety: Pollard v. Broadway Cent. Hotel Corp. (1933) 269 Ill App 77. . . . If a plaintiff has available to him two different methods or ways of doing a job, performing a task, or proceeding, — one previously tried and known to be safe, —the other either unknown and unexplored or known to involve certain possible hazards, — and he chooses the method or way which is unknown and unexplored or known to involve certain possible hazards, and is injured in the process, he is contributorily negligent as a matter of law: Geraghty v. Burr Oak Lanes, Inc. (1954) 2 Ill App2d 48.”

Another case factually similar to the case at bar is Beeville Cotton Oil Co. v. Sells (Tex Civ App), 84 SW2d 575 (1935). That court reversed a judgment in favor of plaintiff who was employed by an independent contractor to haul cottonseed to defendant’s mill and unload it there. On the day in question plaintiff, who had unloaded cottonseed at defendant’s plant more than 100 times in a six-weeks’ period immediately prior thereto, slipped into the conveyor and injured his foot and leg. The court there ruled that plaintiff knew of the dangers of the machinery as well as the owner did, and he knew that the soles of his shoes were slick from friction with cottonseed, and he was injured not by an affirmative act of defendant owner but as a result of his own act of trying to stand on the edge of the conveyor box.

Tompkins comes within the scope of the rules of the above cases. His testimony as to what happened on July 13, 1961, shows that he was trying a novel method of descent from that platform. He had never seen anyone use that method. He knew the danger involved in the customary use of lubricant on the platform — that the area would be slippery. And yet, in spite of this knowledge, he attempted to use the pole and was injured. Although plaintiff stated that none of defendant’s employees were around at the time to lower the platform so as to enable him to descend on his truck, he gave no indication as to how long he waited before attempting to use the pole. Nor did he indicate that he made any attempt to get someone to lower the platform. Medler testified that he was there preparing to lower the platform but that he did not see or hear plaintiff fall. Following the reasoning of the Day case, supra, and the Beeville case, supra, we find that plaintiff was guilty of contributory negligence as a matter of law and, therefore, the judgment of the trial court must be reversed.

Although our decision that plaintiff was guilty of contributory negligence is sufficient to require that the judgment be reversed, we also feel that defendant’s point that plaintiff made no showing that defendant was guilty of any negligence is well taken. The use of a lubricant to make the platform slippery was customary in the dairy industry so as to facilitate the movement of heavy stacks of milk crates, and any danger inherent therein was well known to plaintiff. Although plaintiff testified at the trial that he slipped when he attempted to use the pole, his pretrial deposition showed that he slipped while on the platform. The fact that an accident occurred and plaintiff was injured raises no presumption or inference of negligence on the part of defendant. (Rotche v. Buick Motor Co., 358 Ill 507, 516, 193 NE 529.) Plaintiff himself admitted that he did not know what caused him to slip and a finding of negligence cannot be based on mere conjecture, speculation or surmise. (Kelly v. Fox, 318 Ill App 481, 488, 48 NE2d 592.) Furthermore, in the case of Dargie v. East End Bolders Club, 346 Ill App 480, 105 NE2d 537, it was held that an invitee assumes all normal, obvious or ordinary risks attendant on the use of the premises. In Dixon v. Hart, 344 Ill App 432, 435, 101 NE2d 282, the court ruled that “the mere treating of a floor with a substance that gives it a polished surface is not negligence per se.” Similarly, in the instant case, the fact that Twin Oaks used a lubricant, of itself, does not mean that it was negligent as regards plaintiff who knew of the practice and the risks involved therein.

Because we have decided that the judgment of the trial court must be reversed it is unnecessary for us to decide the merits of defendant’s point regarding the conduct of plaintiff’s counsel during the trial.

The judgment of the trial court is reversed.

Reversed.

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


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Appellee, v. Luis Quintana, Appellant.
    Gen. No. 52,060.
    First District, Third Division.
    January 4, 1968.
    Julius Lucius Echeles, and Jo Anne F. Wolfson, of Chicago, for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Daniel W. Weil, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

In a non jury trial Luis Quintana was found guilty of possessing marijuana and was sentenced to the penitentiary for a term of five years to five years and one day.

The defendant’s motion to suppress the evidence was denied and he urges that this was error. He further contends that there was insufficient proof that he possessed marijuana and that he was sentenced under the wrong statute. It is unnecessary to consider his first and third points because we are not satisfied that his guilt was proved beyond a reasonable doubt.

Quintana was arrested about 9:30 p. m. on the night of April 17, 1965. According to the testimony of the arresting officer he was driving north on a Chicago street when he saw Quintana walk westbound across the street in front of him. He knew Quintana and Quintana knew him. He slowed down when he saw Quintana and Quintana looked at him. He stopped his car and as he did so Quintana, who had almost reached the west curb, bent over and threw two packages underneath an auto which was parked on the west side of the street. The packages which he observed in the palm of Quintana’s hand from a distance of 20 feet were of the size and shape commonly used to contain marijuana. He stopped his car and Quintana ran a few feet. He called him by name and, after bringing him to his car, retrieved the packages which he recognized as the ones Quintana threw under the auto. Quintana denied that the packages were his. There were five or six other men near the parked auto but the officer did not question them or take their names.

Quintana testified that he saw the officer driving by as he crossed the street to join some acquaintances who were standing together on the west side of the street. The officer reversed his car, backed up until he was opposite the group of men, left his car in the middle of the street and approached the defendant. The defendant stood his ground and was seized by the arm and placed in the officer’s car. He said that the officer then talked to and searched the men who were standing next to the parked auto and looked around the area with a flashlight. He came back to the car with two packages in his hand and said, “Now I have got you.” Quintana said he knew nothing about the packages and the officer asked who threw them away if he did not. When Quintana answered that he did not know, the officer said: “Well, now you are going to tell me. You are going to be an informer for me or I will put it on you.”

We are skeptical about the story told by the police officer and our skepticism stems from the prior relationship between the officer and the defendant, from a comment made by the trial judge and from the testimony of the chemist of the Police Department’s crime laboratory. The chemist testified that the packages contained marijuana, but, in contradiction to the officer, he testified that the packages were “not the general run of packaging.” Although the trial judge stated at the conclusion of the trial that he was convinced that Quintana was in possession of the two packages, he was not so convinced at the end of the hearing on the defendant’s motion to suppress the evidence. At that time the judge expressed doubt about the officer’s veracity. He doubted that the officer from his position in the auto could make out that the packages which he allegedly saw in Quintana’s hand were “2 by 3 inches or the type customarily used by sellers of marijuana.”

The evidence disclosed that Quintana and the officer had known each other for four months. The officer had been told that Quintana was selling marijuana and during these four months he stopped him on the street several times and searched him on each occasion. Quintana testified that this happened seven or eight times. The officer admitted that he stopped the defendant five times and that he “shook him down” each time. The arrests were without warrant, were not based on probable cause or even on suspicious conduct, current rumor or intuition; the searches were not incident to lawful arrests, were unreasonable and unlawful. Both were a high-handed display of police power which completely disregarded the defendant’s constitutional rights.

The purpose of this harassment was the officer’s determination to get something on Quintana and to pressure him into becoming the officer’s personal informer. The officer was a law unto himself as he pursued his personal vendetta. On one occasion he arrested Quintana for possession of narcotics but the prosecution was dropped. On another, he put him into his car and drove him around while he insisted that he become a police spy. On the night of his arrest Quintana said the officer drove him around for three-quarters of an hour threatening to prosecute him if he did not accede to the officer’s request and promising to release him if he did. As on all the other occasions Quintana refused, protesting that he neither used nor sold narcotics and knew no one upon whom to inform. After their arrival at the police station the officer again endeavored to enlist his services and it was only after Quintana’s repeated refusal that a charge was placed against him. The officer acknowledged that each time he stopped Quintana he importuned him to be an informer and had done so again on the night of his arrest.

A defendant may be found guilty on the uncorroborated testimony of one witness if the witness is credible and his testimony positive. People v. Guido, 25 Ill2d 204, 184 NE2d 858 (1962); People v. McIntosh, 82 Ill App2d 90, 227 NE2d 76 (1967); People v. Davis, 70 Ill App2d 419, 218 NE2d 3 (1966). The credibility of the witnesses in a case tried without a jury is for the trial judge to determine but his finding, although entitled to great weight, is not conclusive; a reviewing court will reverse a conviction if the evidence is so unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. People v. Pellegrino, 30 Ill2d 331, 196 NE2d 670 (1964); People v. Pendleton, 75 Ill App2d 314, 221 NE2d 112 (1966); People v. Cooper, 69 Ill App2d 18, 216 NE2d 168 (1966).

We do not know whether the defendant is or is not a user of marijuana or is engaged in its sale, but we do know that in this case the testimony of the police officer is suspect and that his uncorroborated testimony is insufficient to prove the defendant guilty beyond a reasonable doubt.

The judgment of the Criminal Court will be reversed.

Reversed.

SCHWARTZ and SULLIVAN, JJ., concur.