author: MR. JUSTICE ABRAHAMSON

text:
    John Buck, Intervening Petitioner-Appellant, v. Illinois National Bank & Trust Company, a National Banking Association, Plaintiff-Appellee. Illinois National Bank & Trust Company, a National Banking Association, Plaintiff-Appellee, v. William T. Colwell, d/b/a Mount Morris Auto Sales, and Marcia J. Colwell, Defendants.
    Gen. No. 66-72.
    Second District.
    January 17, 1967.

      Fearer and Nye, of Oregon, for appellant.
    Barrick and Jackson, of Rockford, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This appeal is prosecuted from an order of the Circuit Court of the 15th Judicial Circuit, Ogle County, entered on the 8th day of February, 1966, that directed the Clerk of that Court to deliver to the Plaintiff, Illinois National Bank & Trust Company, the sum of $3266.89, previously deposited with the Clerk by American Motors Sales Corporation pursuant to a garnishment proceeding. The order also found the issues raised by a Petition in Intervention brought by the Appellant herein, John Buck, in that garnishment proceeding, to be in favor of the Bank.

In February, 1960, William Colwell began a used car business outside of the Village of Mt. Morris in Ogle County. To capitalize the business, Colwell obtained $10,000 from John Buck. The money advanced by Buck was secured by Colwell’s personal judgment note and a written agreement dated February 25, 1960. That agreement provided that Colwell was to deposit all receipts from the business in a special bank account subject to periodic examination by Buck. Colwell was to pay all normal business expenses from that account; regular payments on the note to Buck; and a salary to himself of $129 a week. The profits of the business were to be ascertained at the close of each fiscal year and 20% of the net profit paid to Buck.

The agreement also recited that in the event Colwell was unable, because of financial difficulties, to continue the business “. . . then at the Bucks’ election, assets of said business not exceeding the then unpaid balance of said note . . . shall be transferred to the Bucks. . . .”

In March, 1963, Colwell borrowed $20,000 from the Bank. His credit application indicated as a current obligation, a personal loan of $10,000 but did not mention the source or that it was secured by any collateral owned by him. Colwell defaulted in his payments to the Bank and a judgment was confessed against him, on his personal note, on April 29, 1965, in the amount of $17,945. Garnishment proceedings were brought by the Bank against the American Motors Sales Corporation to recover $3,266.89 owed Colwell for returned automobile parts.

Buck’s original Petition for Intervention alleged that the written agreement of February 25, 1960, was a written “assignment” to him of the money held by the garnishee and that, therefore, he was entitled to recover it rather than the Bank. However, Buck, at the trial, and in this appeal, maintains that the money was orally assigned to him sometime in November or December, 1964, by Colwell, and the trial court permitted an amendment to his Petition to reflect that allegation.

At the trial, Colwell was called to testify by Buck as an adverse witness. He stated that on November 29, 1964, he called Buck to his home to discuss his many financial problems.

Colwell stated that on that occasion he reassured Buck “that his contract that we made up five years prior that it still stated that I wanted to protect him with the parts money returned when it came in from American Motors just as the agreement had originally been. I told him at that time that whatever was derived from those returned parts, any percentage holdbacks or moneys put in reserve would be his to apply towards the $10,000.00.”

Buck himself did not recall the exact date of that conversation but thought that it was in the latter part of November or early December of 1964. His testimony as to the “assignment” was as follows:

“We had no agreement, no written agreement, but he told me that I was to get the assignment from American Motors. He said that was about all the equity that he would have that he could put his fingers on, that when he got his check for that, that it would be applied to the payment on the principal on the note, that we were to work out arrangements for payment of the rest of it after everything else was settled.”

No one else was present at the conversation and the assignment was never put in writing.

Colwell further testified to several conversations that he had with various officers of the Bank at the end of 1964. The Bank at that time sought additional collateral for their previous loans to him and requested a pledge of the parts or the refund money. Colwell stated that he informed the Bank that he could not make such a pledge as those assets had already.been assigned to Mr. Buck. A former employee of Colwell related that he was present at one of those conversations and that Colwell advised the Bank of his prior commitment to Buck.

Several officers of the Bank testified that Colwell never discussed his prior assignment of any of his assets; that they had never heard the name of John Buck prior to his Petition; and that Colwell had repeatedly assured them that none of his personal financial obligations were secured by collateral.

It is contended by Buck that a valid oral assignment of a chose in action takes priority over a subsequent judgment creditor and that the manifest weight of the evidence indicates that the Bank had notice of the assignment. We believe that the notice or lack thereof to the Bank is not essential to a resolution of this problem. It is recognized by the appellant that in order to prevail, an actual assignment of the deposit must have occurred prior to the garnishment. A mere transfer to Buck for purposes of security would have been ineffective as to the Bank, since such transfer totally failed to comply with the requirements of the Uniform Commercial Code in regard to security transactions. Ill Rev Stats, c 26, §§ 9-102, 9-203 and 9-401 (1965). It is also apparent that the written agreement of February 25, 1960, was not of itself sufficient security to protect Buck from other creditors, even with notice, since no transfer, by its terms, was to take place until certain events occurred that had not, in fact, occurred.

Illinois law does recognize oral assignments as valid, unless expressly prohibited by statute, of all items of property that are capable of assignment, including rights, claims or choses in action. Leslie E. Keeley Co. v. Hargreaves, 286 Ill 316, 86 NE 132; Hyatt v. Foster, 195 Ill App 428, 431.

An assignment, oral or written, is the transfer of some identifiable property, claim or right from the assignor to the assignee. The parties must intend to effectuate an assignment at the time of the transfer although no particular language or procedure is necessary. Associated Metals & Minerals Corp. v. Ogelman, 6 Ill App2d 548, 552, 128 NE2d 594. If a valid assignment is effected, the assignee acquires all of the interest of the assignor in the property that is transferred. The assignee, it has been often said, is placed “in the shoes” of the assignor. Chicago in Trust for Use of Schools v. Fischer, 52 Ill App2d 55, 61, 201 NE2d 660.

In order to determine whether an assignment has occurred, it is necessary to ascertain the intention of the parties. Where, as here, there is no writing to evidence that intention, it is necessary to scrutinize the surrounding circumstances and acts of the parties to ascertain their intentions.

Colwell’s assignment allegedly occurred during a conversation with Buck in November or December of 1964. Colwell recalls that he reassured Buck of his intention to comply with the written agreement of ,1960 and that any refund money from American Motors would “be his to apply towards the $10,000.00.” Buck remembered that it was agreed that when Colwell “got his check for that, that it would be applied to the payment on the principal . . .”

Although Colwell testified that he advised the Bank of the assignment, his testimony indicates that he referred primarily to the written agreement with Buck in 1960. There is no credible evidence that either Buck or Colwell notified American Motors of the assignment or that Buck did anything to assert his claim to the refund. Buck understood that the money would be delivered to him only after American Motors released the funds to Colwell. His position in relation to the refund was no different after the purported assignment than it had been prior to that conversation. None of these circumstances are consistent with an intention to create a valid assignment.

Under the circumstances, we can only agree with the trial court that no assignment had been intended, or effected, by the parties and that the funds were vulnerable to the garnishment action brought by the Bank.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE DAVIS

license: Public Domain

text:
    Julius J. Tihay, as Executor of the Estate of Julia Tihay, Deceased, Plaintiff-Appellant, v. Aurora City Lines, a Corporation, and Sylvia M. Taccki, Defendants-Appellees.
    Gen. No. 66-65.
    Second District.
    January 18, 1967.

      Reid, Ochsenschlager, Murphy and Hupp, of Aurora, for appellant.
    Alschuler, Putnam, McWethy, Weiss & Weiler, and Matthews, Jordan, Dean and Suhler, all of Aurora, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

Julius J. Tihay, as Executor of the Estate of Julia Tihay, deceased, herein called plaintiff, sued the Aurora City Lines, herein called Aurora, and Sylvia M. Taccki, herein called Taccki, to recover for the wrongful death of Julia Tihay. The jury returned a verdict in favor of both defendants; the trial court denied plaintiff’s motion for a new trial and entered judgment on the verdict; and the plaintiff appealed. The sole issue raised by plaintiff on review is that the verdict of the jury was contrary to the manifest weight of the evidence.

The collision occurred at approximately 3:30 p. m., in March, 1965. The weather and road conditions were good. The decedent was a guest passenger in the car driven by Taccki, who was allegedly guilty of wilful and wanton misconduct. Aurora was charged with ordinary negligence. It is conceded that the decedent died of the injuries sustained in the collision between Taccki’s car and Aurora’s bus and that there was no contributory negligence or wilful and wanton misconduct on the part of the decedent.

In her testimony, Taccki stated that she and the decedent (her aunt) had spent the day in Chicago. They had just left the home of Taccki’s sister, which was about four or five blocks from the place of the collision. The decedent was sitting in the right front seat. Taccki was driving west on Grove Street towards its intersection with Beach Street. She was very familiar with the general neighborhood and the particular intersection of Grove and Beach Streets.

Taccki testified that her top speed from the time she left her sister’s house was fifteen to twenty miles per hour; that she was driving slowly and carefully because children were coming out of school at this hour and were running all over the street; that as she came to the intersection of Grove and Beach she stopped her car and first looked to her left — south on Beach Street; that there was no traffic coming; that she then looked to her right — north on Beach Street — and saw the bus approaching from that direction; and that the bus was then about a block away and she was stopped at the curb line of the intersection.

She testified that she then proceeded through the intersection at a “normal speed” — possibly ten to fifteen miles per hour — on the proper side of the street; that she next saw the bus, coming very fast, when she was at about the middle of the intersection; that she then accelerated to try to get out of the intersection and knew that if she didn’t, the bus would hit her; that during all of this time she was in the right hand, westbound lane; and that she was nearly out of the intersection, toward the westerly curb line of Beach Street, when she saw the bus turn right and hit her.

She further testified that her car was in good working condition; that the bus struck it near the right front door and the left headlight of the bus came through such door and into the car; that the bus pushed her car up over the southwest curb of the intersection; and that nothing obstructed her view to either the south or the north as she was stopped at the intersection.

The bus driver testified that he was driving a school bus, had picked up a number of children at a school and had just dropped a child off one block north of the intersection where the collision occurred and where he had turned onto Beach Street; and that he was then proceeding south on Beach Street toward the intersection of Beach and Grove.

He stated that he first saw the Taccki car when he was about at the intersection. The Taccki car was then about through the north-south crosswalk on the east side of the intersection. The bus was then at the north edge of the east-west crosswalk on the north side of the intersection. The car was thus about the width of the crosswalk nearer the intersection. The bus driver testified that his speed at this time was approximately fifteen to twenty miles per hour; that the Taccki car was then travelling approximately twenty-five miles per hour; and that from the time he first observed the car it started to speed up — increasing its speed by five miles per hour or slightly more — and began to leave its proper lane and move to the south and into the eastbound lane of Grove Street.

He also testified that the impact occurred in the southwest quarter of the intersection and that the Taccki car was going approximately thirty miles per hour when it was struck. Prior to the collision he heard no horns or the sound of brakes. The Taccki vehicle was pushed about halfway over the curbing at the southwest corner of the intersection. The left front of the bus hit the right door of the car. He estimated the weight of the bus to be about 15,000 pounds.

Three of the children who were passengers on the bus were called as witnesses. Each testified, in substance, that the bus was going less than twenty miles per hour as it approached the intersection. However, on a prior occasion, each had given a different, and higher, estimate of the speed of the bus. Each testified that the Taccki car was going faster than the bus. One testified that the bus driver tried to stop and turn the corner and that the driver of the car appeared to make no effort to stop.

One of the investigating police officers was called to testify. A diagram of the intersection, which he had prepared — together with measurements of the street widths, skid marks, locations of the vehicles and general characteristics of the area — was admitted in evidence. He testified that the speed limit in the area was thirty miles per hour; and that the houses in this neighborhood were closer to the corners than in the newer neighborhoods — a factor which was more vividly portrayed by the photographs which were admitted in evidence. These illustrated, better than words, that the house located on the northeast corner of the intersection — the corner between the two approaching vehicles — obstructed the view of the approaching vehicles until each was quite near the intersection itself.

We may not disturb the verdict of the jury as being contrary to the manifest weight of the evidence unless it is clearly evident from a consideration of all of the evidence that an opposite conclusion should have been reached. Payne v. Kingsley, 59 Ill App2d 245, 249, 207 NE2d 177 (1965); Brown v. Boyles, 27 Ill App2d 114, 124, 169 NE2d 273 (1960). Stated differently, we may substitute our judgment for that of the jury only where the latter’s verdict is palpably erroneous and wholly unwarranted from the manifest weight of the evidence. Johnson v. Central Tile & Terrazzo Co., 59 Ill App2d 262, 274, 207 NE2d 160 (1965); Wright v. Callaghan, 50 Ill App2d 157,163,164,200 NE2d 56 (1964).

In passing on the question before this court, we must consider not only all of the evidence and the verdict of the jury, but also the trial court’s denial of a motion for a new trial. Johnson v. Central Tile & Terrazzo Co., supra, page 273; Vasic v. Chicago Transit Authority, 33 Ill App2d 11, 11e, 180 NE2d 347 (1961); Mokrzycki v. Olson Rug Co., 28 Ill App2d 117, 124, 170 NE2d 635 (1960).

“It requires much more for this court to set aside a verdict and judgment than is required of the trial judge. It is his duty to set aside the verdict if he is of the opinion that the plaintiff has not sustained his case by a preponderance of the evidence, while the question of the preponderance of the evidence does not arise at all in this court.” Morella v. Melrose Park Cab Co., 65 Ill App2d 175, 182, 183, 212 NE2d 106 (1965); Read v. Cummings, 324 Ill App 607, 610, 59 NE2d 325 (1945). Thus, the trial judge, in passing upon the motion for a new trial, is afforded greater latitude than this court. Morella v. Melrose Park Cab Co., supra, 181; Payne v. Kingsley, supra, 252. We may not disturb a verdict unless the verdict and judgment are contrary to the manifest weight of the evidence.

The trial judge, like the jury, was in a much better position than this court to weigh the evidence. They both had the benefit of seeing and hearing the witnesses. They saw the calm or disturbed state of the witness and noted the flush or pallor of the face in connection with the answer to certain questions. They heard the delayed and uncertain answer, as well as detected the faltering voice and its inflection, and noted the nuance and denouement attributable thereto, along with the numerous other characteristics of the witnesses which do not appear in the printed record before us. Consequently, the trial judge is afforded discretion in the allowance or refusal of a motion for new trial, and his decision in this regard will not be reversed except for a clear abuse of such discretion. Buer v. Hamilton, 48 Ill App2d 171, 174, 199 NE2d 256 (1964); Potter v. Ace Auto Parts & Wreckers, Inc., 49 Ill App2d 354, 356, 199 NE2d 618 (1964).

There is substantial conflict on many of the material facts in this case: Did the Taccki car stop at the intersection or was it approaching at a faster rate of speed than the bus ? Did Taccki see the bus when it was almost a block away? Did the Taccki car and the bus approach the intersection at approximately the same time, with the bus travelling at a slower rate of speed? Would the bus driver have been justified in assuming that Taccki would yield the right-of-way to him, rather than speed up, as he was approaching from the right and had the directional right-of-way? Did Taccki misjudge the distance or speed of the bus? Did she commit an error of judgment in deciding to speed up, rather than to stop, when she saw the bus? What factor did the proximity of the house, which was on the northeast corner between the two approaching vehicles, play in the resulting collision? Were each of the parties travelling at a safe rate of speed and maintaining a proper lookout in view of the proximity of this house?

The answers to these questions are found in the facts of this case, and it was within the province of the jury to determine the inferences and conclusions to be drawn therefrom. The weight to be given the testimony of the children — each of whom had made some prior inconsistent statements — and the weight to be given the testimony of each driver — who had an interest in the case at least to the extent of feeling a moral responsibility or absence of it for the death which resulted — were matters which the twelve jurors, who were chosen to decide the factual questions, could determine from their actual observations with much greater accuracy than we can attain from a careful examination of the printed record.

Were it for us to make the original decision, we would find it difficult to believe that Taccki stopped her car at the intersection crosswalk and observed the bus approximately one block to the north, yet was struck when she pulled out. We find it much more reasonable to accept the testimony that both vehicles approached the intersection at approximately the same time, and that the car accelerated rather than braked; that the bus driver swerved to the right, perhaps assuming that the car was going to stop rather than accelerate; and that the driver of the car accelerated, perhaps assuming the bus would either stop sooner or turn to the left, rather than to the right. Such projection of the occurrence would be our guess or conjecture based on the facts set forth in the record. However, the jury saw and heard the witnesses and we can only surmise what facts, conclusions and inferences it may have relied upon in reaching its verdict.

The significant point is that, tested by the standards we have set forth, we cannot say that the verdict of the jury was such that we must reverse and award a new trial. There was sufficient evidence for the jury to determine that the bus driver was not negligent. Also, there was ample evidence for it to determine that Taccki was not guilty of wilful and wanton misconduct — the standard by which she had to be judged.

As has been said time and again, we are not free to set aside the jury’s verdict merely because the jury could have drawn different inferences or conclusions —those which we might feel are more reasonable — or because we would have reached a different conclusion had we been the trier of facts. Kahn v. James Burton Co., 5 Ill2d 614, 623, 126 NE2d 836 (1955); Morella v. Melrose Park Cab Co., supra, page 183; Buer v. Hamilton, supra, page 175. Upon the conflicting versions of the facts in this case, it was peculiarly within the province of the jury to determine whether the bus driver was negligent and whether Taccki was guilty of wilful and wanton misconduct. Turner v. Seyfert, 44 Ill App2d 281, 286, 287, 194 NE2d 529 (1963); Layton v. Ogonoski, 256 Ill App 461, 468 (1930).

We have carefully reviewed the entire record in this case and cannot say that the verdict of the jury was contrary to the manifest weight of the evidence; and accordingly, the judgment entered thereon is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: JUSTICE SEIDENFELD.

text:
    Clovis Beeding, Plaintiff-Appellant, v. Allen C. Burns, d/b/a Eleventh Street Mobile Home Sales, Defendant-Appellee.
    Gen. No. 66-20.
    Second District.
    January 23, 1967.
    Brown, Connelly, Paddock & Roszkowski, of Rockford, for appellant; Reese & Schlueter, of Rockford, for appellee.
   Opinion by

JUSTICE SEIDENFELD.

Not to be published in full.


author: STOUDER, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Orville L. Masterson, Defendant-Appellant.
    Gen. No. 64-71.
    Third District.
    January 25, 1967.

      Louis Olivero, of McNeilly & Olivero, of Peru, for appellant.

      Robert E. Richardson, State’s Attorney, of Ottawa, for appellee.
   STOUDER, P. J.

Two indictments were returned by the grand jury of LaSalle County against Defendant-Appellant, Orville Lee Masterson. The first indictment charged in two counts the attempted murder and assault of Diane Miller. The second indictment, in six counts, charged aggravated kidnapping, rape and aggravated assault against Elaine Davis and like offenses against Linda Peterson. Prior to trial, the People moved to dismiss the aggravated assault count in the first indictment as to Diane Miller. Both indictments were then consolidated for trial. The jury found Defendant guilty on each of the seven counts and thereafter judgments of conviction were entered by the Circuit Court of LaSalle County. Defendant was sentenced to the penitentiary for indeterminate periods of time, the maximum sentences being from 40 to 60 years for the convictions of aggravated kidnapping and rape, the sentences to be served concurrently.

Since most of the alleged errors depend on the sufficiency of the evidence we believe that a summary of the evidence is required.

Diane Miller, age 14, the object of the attempted murder charge, testified that on November 11, 1963, she was at home babysitting with her boy friend, William Smith. Linwood Sluder, age 21, with whom she was acquainted, came to the door on three occasions and asked her to go out with him. On the first two occasions he was alone, on the third occasion at about 8:15 p. m., another person unknown to the witness and later identified as the Defendant, appeared from around the corner of the door with a gun in his hand and ordered the witness to open the door or he would shoot. The witness slammed the solid wooden door, and jumped to one side. Moments later a gun discharged, a bullet came through the door about 4 feet from the floor, and embedded itself in a wall opposite the door. The witness was undecided as to what to do but shortly thereafter her mother called and immediately came home, the sheriff’s office being thereafter notified of the incident.

Defendant Masterson, age 35, in testifying in his own behalf, described his acquaintance with Linwood Sluder. On the morning of November 11, 1963, he had picked up Linwood Sluder. In the afternoon Defendant and Sluder met Elaine Davis and Nellie Thomas and offered to meet the girls about two blocks away. Defendant and Sluder secured some beer and met the girls, offering them beer which Elaine Davis accepted and Nellie Thomas refused. According to Defendant, Sluder made a date to meet Elaine Davis later that night. Defendant and Sluder then drove around finally going to Sluder’s home located a short distance from Diane Miller’s house. Defendant went with Sluder on the three occasions that Sluder called on Diane Miller, remaining in the car on the first two occasions. According to Defendant, Sluder told him that Diane Miller would go out with them later as soon as her mother returned. Between the visits Defendant and Sluder drove around and returned to Sluder’s home. Prior to the third visit to the Miller house Sluder put a 45-caliber pistol and a 22 rifle in the car. Defendant accompanied Sluder to the door on the third visit, Sluder at the time having a pistol in his belt. As they approached the door Sluder gave him the pistol saying that if Diane Miller saw it she might be scared. During the ensuing conversation Defendant was standing to the left of the door. When Sluder made a threatening gesture towards Diane Miller she slammed the door and Sluder asked for the pistol which Defendant gave to him. Thinking that Sluder intended to shoot the boy friend, Defendant struggled for the pistol which discharged, the bullet passing through the door. Both Sluder and Defendant left the Miller house.

Linwood Sluder, serving a term in the penitentiary as a result of revocation of probation because of his participation in this incident was called as a witness by Defendant. He confirmed the three visits to Diane Miller’s house indicating that when they had left his sister’s house they had two knives, a 22 rifle and the 45-caliber pistol. He stated that when Diane Miller refused to come out he had told the Defendant Masterson to shoot. He also indicated that there might have been a struggle but that he was too excited to recall just what happened.

Linda Peterson testified that late in the evening on November 11, 1963, she was walking home after having visited a girl friend. A car pulled up driven by a person unknown to her, later identified as Defendant. Linwood Sluder, with whom she was acquainted was sitting in the passenger seat. He asked the witness if she wanted a ride which she refused. The car turned around and the procedure was repeated. The car then stopped a third time and on this occasion the Defendant got out of the car, came over to her, twisted her arm behind her back, put a hand over her mouth and forced her to get in the front seat of the car. She testified that when she refused to go with them she was threatened and told that they had previously shot Diane Miller. She saw a pistol in the car and two knives were passed back and fourth between Defendant and Sluder, the knives being admitted as exhibits and identified by the witness. Linda was told that some person had agreed to pay $1,500 to have the witness and Elaine Davis picked up. Defendant then drove the car to the home of Elaine Davis in Wedron, Illinois.

Concerning the incident with Linda Peterson, Defendant testified that a few minutes after leaving Diane Miller, Defendant and Sluder overtook a girl unknown to him at the time but later identified as Linda Peterson. Defendant was driving the car which stopped on three occasions in an effort to get the Peterson girl into the car. After her refusal on the first two occasions Sluder said that the reason she didn’t get in was because Sluder had been drinking. Sluder told Defendant that if he would get out and explain to her that he had not been drinking she would get in. This Defendant did on the third stop and according to his testimony Linda Peterson got into the car voluntarily. Concerning this incident Sluder corroborated Linda Peterson’s testimony that she was forced into the car in the manner she described.

Elaine Davis testified that late in the evening of November 11, 1963, Linwood Sluder, with whom she had been acquainted approximately two years, came to the door of her home and indicated that “Tex,” Defendant Masterson, wanted to see her in the car. She went with him to the car and as they approached the car Sluder pulled a gun, forced her into the front seat of the car with a girl she did not know, later identified as Linda Peterson, and Defendant Masterson. The witness testified that she had met and talked briefly with Defendant and Sluder in the afternoon in Wedron but denied that she had made a date with Sluder or that she had spent any time during the afternoon drinking with either Defendant or Sluder.

Defendant Masterson testified that Elaine Davis had come out to the car with Sluder, she came to his side of the car and told him she had to go talk to a priest first. According to Masterson she changed her mind and got into the car voluntarily. Witness Sluder testified that Elaine Davis started to get into the car and backed away at which time he (Sluder) forced her into the car at the point of a gun.

Elaine Davis and Linda Peterson testified that they, Sluder and Defendant Masterson, drove around country roads in the LaSalle County area all night. That Sluder and Defendant made numerous threats to kill them if they did not cooperate and that they were compelled to submit and did submit to acts of sexual intercourse, that their submission was the result of threats and intimidation including repeated references to the fact that Diane Miller had been killed earlier in the evening. The girls testified that in addition to the pistol, which was always in evidence, there were two knives and two rifles in the car. That sometime during the night the car stopped at a filling station for gasoline but the girls were warned not to make any effort to cry out.' At about 7 o’clock in the morning they went to Defendant Masterson’s house where Defendant and Sluder cleaned up and shaved and where Defendant again had intercourse with Linda Peterson again accompanied by threats and intimidation. They then drove to a factory where they changed cars transferring the guns to another car and then drove to the residence of Marybelle Manning in Wedron.

Defendant admitted acts of intercourse with both Elaine Davis and Linda Peterson during the night but claimed that the girls were not threatened or intimidated and that their presence in the car and the actual intercourse were voluntary. Witness Sluder corroborated the testimony of the girls admitting that threats were made, that there were knives and guns in the car and a pistol in his possession most of the night and that Linda Peterson was crying most of the time.

Marybelle Manning testified that Linda Peterson, Elaine Davis, Sluder and Defendant came to her apartment between 9 and 10 o’clock on November 12, 1963, and asked to come in. The witness was acquainted with all four persons. She testified that the girls were disheveled and that Linda Peterson was crying. She stated that Linda’s sister had been around about 8 that morning looking for Linda saying Linda had been out all night. She also testified that Defendant Masterson talked to her in the kitchen and asked her to keep the girls in the apartment for 30 minutes, not to let them go any place or talk to anyone. After Sluder and Masterson had been gone five minutes, Marybelle called the sheriff’s office and they immediately dispatched a deputy for Linda Peterson and Elaine Davis. Thereafter the witness called the parents of each girl. Marybelle stated that no mention was made in her presence of any assault, kidnapping or rape.

After leaving the Manning apartment, Sluder and Defendant headed for Kentucky, Defendant claiming that Sluder forced him to go. Defendant and Sluder were apprehended in Taylor County Kentucky on November 14, 1963, offering no resistance. A 45-caliber pistol containing 5 undischarged shells was found in the glove compartment in the car at the time of their arrest.

Witness Sluder testified that he had the pistol in his possession when they left the girls at the Manning apartment and that Defendant had told him that he had asked Marybelle Manning to hold the girls to give the men time to escape.

A physician testified that he had examined Linda Peterson and Elaine Davis on November 12, 1963, at the request of the Sheriff’s office. His examination revealed no bruises, cuts or lacerations. His pelvic examination of Elaine Davis revealed no seminal fluid or evidence of forced entry. His pelvic examination of Linda Peterson revealed some tissue tearing but no seminal fluid.

The records of three prior convictions of Defendant for felonies were introduced.

Defendant in seeking a reversal of his convictions first argues that the court erred in the admission of exhibits. The exhibits complained of are a pistol, a bullet, two knives, a belt and a pair of panties. With respect to the pistol and bullet we find no support for Defendant’s contention that the exhibits were not properly identified. The record indicates that the 45-caliber pistol was identified by serial number as the same pistol which was discovered in the car at the time Defendant was apprehended in Kentucky, the Sheriff of Taylor County Kentucky testifying in this regard. Also Diane Miller testified that the pistol was similar to the one she had seen in Defendant’s hand immediately prior to the shooting. Sluder testified that the pistol belonged to him and that it was the one used during the night in question. With respect to the bullet, Margaret Thompson, mother of Diane Miller, testified that her son-in-law removed the bullet from the wall in her presence, that he gave the bullet to her, that she wrapped it in tissue paper and a day or two later gave it to a deputy sheriff. She also identified the bullet as the one extracted from the wall. Such exhibit did have some probative value in establishing that in fact a shot had been fired and in determining its direction when considered with other testimony and photographs.

Defendant argues that the two knives, belt and panties introduced as exhibits by the People were improperly admitted since they were seized in an illegal search of Defendant’s car. Defendant argues that under the authority of Mapp v. Ohio, 367 US 643, 84 ALR2d 933, and James v. Louisiana, 15 L Ed2d 30, the search and seizure were illegal since not incidental to a lawful arrest or supported by a search warrant. From a consideration of the facts in the record it is evident that the evidence was not the result of a proscribed search and seizure. Not only does the evidence tend to show that the car which was searched belonged to Defendant’s wife and that she freely consented to a search of the car, but that Defendant left the car for her in the factory parking lot where she worked. Thus she had the use and occupancy of the car at the time she consented to its search and no search warrant was required. People v. Palmer, 31 Ill2d 58,198 NE2d 839.

This brings us to Defendant’s contention that the evidence is insufficient to sustain his conviction for attempted murder, there being lack of evidence of intent required by such offense. It is asserted by Defendant that there is no evidence that he discharged the pistol, had any malice toward Diane Miller or specifically intended to murder her. Such assertion requires the complete acceptance of Defendant’s version of the incident as well as complete disregard of unfavorable inferences which could have been drawn from Defendant’s own testimony and all other conflicting evidence. It is true that the evidence does not show any preexisting malice, anger or hatred of Defendant toward Diane Miller. However the intent with which an act is done may be inferred from the act itself and the surrounding circumstances, it being presumed that every person intends the natural and probable consequences of his actions. People v. Coolidge, 26 Ill2d 533, 187 NE2d 694. Defendant’s deliberate possession of a loaded pistol, his stepping from a place of concealment with a pistol in hand, the rebuff by Diane Miller, and Defendant’s possession of the pistol immediately prior to the slamming of the door are all actions from which it can be inferred not only that Defendant discharged the pistol but that the nature and probable consequences of such conduct could result in serious harm or death. It can also be inferred from the evidence that Defendant intended to force Diane Miller to go with them which in itself is illegal conduct and the firing of the pistol while trying to commit an illegal act furnishes the necessary intent.

With respect to the offense of forcible rape, Defendant, having admitted sexual intercourse with each of the prosecuting witnesses, the primary question before us is whether the evidence warrants the jury’s conclusion that such intercourse was forcible and against the will of the complaining witnesses. In People v. Faulisi, 25 Ill2d 457, 185 NE2d 211, the court said “When the charge is forcible rape, the fact that the act of intercourse was performed forcibly and against the will of the complaining witness is a necessary element of the crime which must be proved beyond a reasonable doubt. The degree of force exerted by the Defendant and the amount of resistance on the part of the complaining witness are matters that depend upon the facts of the particular case. Thus we have held that resistance is not necessary-under circumstances where resistance would be futile and would endanger the life of the female as where the assailant is armed with a deadly weapon, and that proof of physical force is unnecessary if the prosecuting witness was paralyzed by fear or overcome by superior strength of her attacker. (People v. Ardelean, 368 Ill 274,13 NE2d 976.)”

There are substantial conflicts in the evidence, the prosecuting witnesses portraying the activities of the night as based on threats, intimidation, terror and fear, and that their submission was based on fear of harm or death and the futility of escape. The Defendant denies any threats, violence or intimidation and claims the girls were willing and cooperative. However, in reviewing the record as a whole it is evident that the jury was not required to base its verdict solely on the conflicting evidence of Defendant and prosecuting witnesses. There is substantial evidence in the record, either admitted by Defendant or established by other witnesses, which both corroborates the testimony of the complaining witnesses and is inconsistent with the contentions of the Defendant. Defendant admits that at the start of the activities of the night, guns and knives were placed in the car. After Sluder’s rebuff in his second visit to Diane Miller’s house, Defendant accompanied Sluder to the door, concealed himself and then stepped out with a loaded pistol in hand. Within a few minutes of Defendant’s participation in the near fatal shooting of Diane Miller, Linda Peterson was enticed into the car and shortly thereafter Elaine Davis entered the car. The possession of guns and knives could indicate deliberate preparation for and intention to commit some unlawful act. Once having embarked upon a course of violence as represented by the effort to force Diane Miller to come with them and the subsequent shooting, it is not unreasonable to conclude that Defendant and Sluder, feeling or believing that they had nothing to lose, continued their illegal conduct with respect to opportunities nearest at hand. Such opportunity was the enticement of Linda Peterson into the car a few minutes later, and, later Elaine Davis. The girls learned of the shooting incident from the Defendant and Sluder and it is difficult to conceive of any circumstance more likely to contribute to the compulsive effect of the accompanying threats even in the face of the Defendant’s denial of such threats. Mary-belle Manning testified that at the time the girls were delivered to her apartment Sluder had a pistol and that Defendant requested her to hold the girls for half an hour. It is conceded by Defendant that flight ensued to avoid apprehension and that he was arrested in Kentucky and at that time, Sluder’s pistol with one bullet discharged was found in the car.

Defendant argues that there are undisputed facts which support his version of the incident namely the absence of evidence of injury to the girls indicating physical mistreatment or physical resistance, that the girls did not avail themselves of apparent opportunities to escape, that they slept in the car and that they failed to complain of their alleged mistreatment at the earliest opportunity. While such facts might be deemed to be consistent with Defendant’s claim, they are not necessarily inconsistent with the testimony in behalf of the prosecution nor do such facts rebut the persuasive effect of the facts admitted by Defendant or established by independent testimony.

We believe that the evidence as a whole, substantially corroborates the testimony of the complaining witnesses and that such evidence amply supports the jury’s verdict finding Defendant guilty of both forcible rape and aggravated assault. In addition, the testimony of Sluder, the accomplice, supports the version of the incident related by the complaining witnesses and is substantially contrary to the testimony of the Defendant.

Next Defendant asserts that the evidence is insufficient to sustain his conviction for aggravated kidnapping. Defendant argues that there is no evidence of secret confinement, intent or demand for ransom. We find no merit in these arguments. Section 10-1, chap 38, Ill Rev Stats (1965) provides that a person commits the offense of kidnapping when he knowingly secretly confines a person against his will. A person may be secretly confined within the meaning of the kidnapping statute if confined in a car. People v. Bishop, 1 Ill2d 60, 114 NE2d 566. That a person be held for ransom or that a demand for ransom be made is not an element of the offense of kidnapping. If ransom is demanded the kidnapping is considered aggravated kidnapping. Section 10-2(a)(1), chap 38, Ill Rev Stats (1965). From the fore going discussion of the evidence it is apparent that the jury could have believed that the girls were deliberately forced into the car and confined therein against their will which conduct would constitute the offense of kidnapping. Section 10-2(a) (3), chap 38, Ill Rev Stats (1965) provides that a person guilty of kidnapping within the terms of Sec 10-1 is guilty of aggravated kidnapping when he knowingly inflicts great bodily harm or commits another felony upon his victim. Clearly a demand for ransom is not an essential element of the offense as described in this section.

We do not believe it necessary to discuss the other assignments of error urged by the Defendant since they are without merit. For the foregoing reasons we find no error in the judgment of the Circuit Court of LaSalle County, therefore said judgment is affirmed.

Judgment affirmed.

ALLOY and CORYN, JJ., concur.


author: ALLOY, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James I. McClain, Defendant-Appellant.
    Gen. No. 66-27.
    Third District.
    January 25, 1967.
    Richard J. Neagle, of Galesburg, for appellant.
    Donald C. Woolsey, State’s Attorney, of Galesburg, for appellee.
   ALLOY, J.

This cause originated through an indictment returned by the Grand Jury of Knox County for armed robbery on September 24, 1963. The indictment specifically alleged that defendant with codefendants “by force and intimidation because they were armed with loaded pistols and threatened to use them against Jerry King, unlawfully and feloniously took some gasoline and $5.00 cash from the said Jerry King.” On the back of the indictment there was a caption “Indictment for Robbery” and it was there endorsed by the Grand Jury foreman as a true bill. There is no showing of the reason for the discrepancy between the allegations of the indictment which charged an armed robbery and the recital on the back of the indictment which simply stated “Indictment for Robbery.”

Thereafter, on motion of defendant his arraignment was continued a number of times for reasons which do not clearly appear (involving the failure of his attorney or bondsman to locate him), the disposition of the cause was further delayed and counsel for defendant withdrew. On March 6, 1964, the record shows defendant was produced in custody and was thereupon admonished by the court as to his rights and the consequences of a plea of guilty to the crime of armed robbery. He waived counsel and pleaded guilty to the crime of armed robbery. The court addressed him specifically and stated “Mr. McClain, in the Indictment on file in this case you were charged with the crime of armed robbery. That is robbery with an armed weapon. It was on the 23rd day of May, 1963, against a Jerry King.” Defendant replied “Guilty, sir.” The court then stated that., it was the judgment of the court on his plea of guilty that he was guilty of armed robbery in the manner and form as charged in the indictment. He was thereafter sentenced by the court to an indeterminate term of not less than one year and specifically not less than five years nor more than eight years.

In this court, defendant contends that the indictment charges him with the offense of robbery and that he, therefore, was not clearly and completely apprised of the crime with which he was charged and that the sentence imposed by the court was for armed robbery which was a crime greater than the crime with which he was charged.

Defendant rightly contends that the sufficiency of an indictment and matters of record based on the indictment are a proper subject of review on appeal, even though defendant entered a plea of guilty in the trial court (People v. Schneider, 334 Ill 630, 166 NE 529). It is noted, however, that defects of form are waived by such a defendant who pleads guilty where there is no motion to quash or in arrest of judgment (People v. Duden, 3 Ill2d 16, 20, 119 NE2d 742). The indictment referred to and subsequent records in this cause show that defendant was clearly apprised of the crime of armed robbery. Defendant had been indicted prior to the effective date of applicable provisions of the Illinois Code of Criminal Procedure which became effective on January 1, 1964. Under section 125-3 (b) of the Criminal Code (c 38, § 125-3 (b) of the Ill Rev Stats) the Savings Provision is to the effect that in any case pending on or after the effective date of the Code, committed prior to the date, the procedural provisions of the Code would govern insofar as they are justly applicable and their application does not introduce confusion or delay. To require that defendant be reindicted for the simple purpose of including in such indictment the citation of the criminal statute violated would be inconsistent with such provision.

There is no showing that defendant was in fact misled or confused by the mistake which can be characterized as a scrivener’s mistake on the back of the indictment, in view of the record before us. He was clearly advised that he was charged with armed robbery orally by the court prior to receiving his plea of guilty as well as in the body of the indictment. There is no indication that defendant was confused or dealt with unfairly (People v. Hill, 17 Ill2d 112, 119, 160 NE2d 779). The circumstance that the crime, which was charged expressly and clearly in the indictment, was not endorsed on the back of the indictment would not justify setting aside the conviction and sentence (People v. Duden, supra), nor would reversal be justified on the ground that the indictment did not contain the statutory reference to the crime charged (People v. Hill, 68 Ill App2d 369, 216 NE2d 212).

The judgment of the Circuit Court of Knox County will, therefore, be affirmed.

Affirmed.

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


author: TRAPP, J.

text:
    In the Matter of the Estate of Arthur D. Hart, Deceased. Irvin E. Thompson, Individually, as Trustee and as Executor of the Purported Will of Arthur D. Hart, Deceased, Petitioner-Appellee, and Nell Hart and Thad S. Hart, Respondents-Appellees, v. Zora Hite, et al., Lessie Hill, a/k/a Leslie Hill, et al., Respondents-Appellants.
    Gen. No. 10,742.
    Fourth District.
    January 26, 1967.

      Brunsman, Beam & Crain, of Springfield (John B. Crain, of counsel), and Jack Austin, of Mattoon, for appellants.
    Lemna & Lee, of Tuscola, and Williams & Resch, of Casey, for appellees.
   TRAPP, J.

This in an appeal from an order of the Circuit Court of the Fifth Judicial Circuit, Coles County, Illinois, admitting to probate an instrument purporting to be the last will and testament of Arthur D. Hart.

The proponent of the will is Irvin E. Thompson who is named executor in the will. The objectors are two sisters of the testator, Zora Hite and Leslie Hill. The record does not make the status of the other objector appellants clear.

The will devises certain farmland to the widow, Nell Hart, creates a trust for the benefit of brothers and sisters, including Zora Hite and Leslie Hill, as to certain farmland, and devises the residue to the widow.

The will contains the following attestation clause:

“We, the undersigned, do hereby certify that the said Arthur D. Hart signed the above and foregoing paper in our presence and declared the same to be his Last Will and Testament on this, the 14th day of July, A. D. 1964, and requested us to sign the said will as witnesses, which we did in his presence and in the presence of each other, believing the said Arthur D. Hart to be fully possessed of all of his faculties and of sound mind and memory and in every way capable of making his Last Will and Testament.”

The attestation clause was signed by the two witnesses, William W. Easton and Robert F. Swengel.

The witness, Robert F. Swengel, was a practicing physician and the testator was his patient. Dr. Swengel had known the testator for two and one-half years prior to his death. He testified positively that, in his opinion, the testator was of sound mind. On direct examination he testified in reference to soundness of mind: “To the best of my knowledge he was.” On additional examination by the widow’s attorney he testified: “In my opinion he was of sound mind.”

William Easton, the other attesting witness, testified as follows:

Interrogation by Mr. Raymond Lee:

“Q. Will you state your name, please ?
“A. William Wayne Easton.
“Q. And where do you reside ?
“A. Mattoon, Illinois.
“Q. And what is your business or profession?
“A. I’m a rate clerk, at A & B Transfer, Mattoon.
“Q. Directing your attention, Mr. Easton to the 14th day of July, 1964. Where were you working at that time ?
“A. At Mattoon Memorial Hospital.
“Q. I hand you a document which purports to be the Last Will and Testament of Arthur D. Hart; directing your attention to the next to the last page thereof, whose signature appears thereon?
“A. Arthur D. Hart.
“Q. Did he sign this instrument in your presence? “A. He did.
“Q. Directing your attention to the last page thereof, does your signature appear thereon ?
“A. Yes, sir.
“Q. Did you sign this instrument at Mr. Hart’s request?
“A. I did.
“Q. Did you sign it in his presence ?
“A. I did.
“Q. Was it signed in his presence and that of Dr. Swengel’s ?
“A. It was.
“Q. Do you believe at the time of signing this Will, that Arthur D. Hart was of sound and disposing mind and memory ?
“A. To the best of my knowledge, he was.
“Q. Do you have an opinion ?
“A. No, sir.
“Mr. Williams: How long did you know Mr. Hart?
“A. I did not know the man personally; I was working at the hospital and was called to witness this Will.
“Mr. Williams: And asked to be a witness ?
“A. Yes, sir.
“Q. Did you speak any to Mr. Hart at the time? “A. No, sir.
“Q. Did he speak to you ?
“A. No, sir, other than his request to witness the Will.
“Mr. Williams: That’s all.
“Mr. Lee: I have one further question, Mr. Easton, was Mr. Hart under any duress or coercían (sic) at the time the Will was signed at your knowledge?
“A. No, sir, not to my knowledge.”

The objectors contend that there is a failure on the part of the witness, William Easton, to testify to his belief in the soundness of mind of the testator and that, therefore, there is a failure to produce two witnesses who testify to a belief in the soundness of mind and memory of the testator as required by chap 3, § 69 (Ill Rev Stats, 1965). That section of the statute is as follows:

“When each of 2 attesting witnesses to a will testifies before the court (a) that he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or that the testator acknowledged it to the witness as his act, (b) that the will was attested by the witness in the presence of the testator, and (c) that he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will, the execution of the will is sufficiently proved to admit it to probate unless there is proof of fraud, forgery, compulsion, or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will. The proponent may also introduce any other evidence competent to establish a will in chancery. If the proponent establishes the will by sufficient competent evidence it shall be admitted to probate unless there is proof of fraud, forgery, compulsion, or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will.”

Objectors rely upon Hill v. Kehr, 228 Ill 204, 81 NE 848 and Allison v. Allison, 46 Ill 61, as sustaining their point of view. In Hill v. Kehr, the witness was asked whether he believed at the time of the execution the testatrix was in her right mind, and he answered, “I have no reason to question it because I didn’t know the lady.” It affirmatively appeared that he did not read the attestation clause. He did not know whether the testator signed in his presence. He did not know it was a will. The request to sign as a witness came from the son of the testator. In Allison v. Allison, the witness testified that he did not know whether the testator was of sound mind or not.

It should be noted, among other things, in evaluating these two cases, that the statute at that time provided for admission of a will by the probate or county court, and nothing could be considered but the testimony of the witnesses. Even on trial de novo on appeal to the circuit court from an order admitting to probate, no other evidence could be considered. A different rule applied on appeal from an order denying probate. There, any matter which could be considered by a court of chancery on a contest could be considered to support the will. See Andrews v. Black, 43 Ill 256 on 259; Weld v. Sweeney, 85 Ill 50; and Greene v. Hitchcock, 222 Ill 216, 78 NE 614. Now the original probate is made in the circuit court, and the proponent may introduce, and the court consider, any evidence competent to establish a will in chancery.

Applying the above distinction between appeals from orders granting probate and orders denying probate, we note as early as Thompson v. Owen, 174 Ill 229, 51 NE 1046 (1898), the weight to be given to an attestation clause on appeal from an order refusing probate. On page 232 the Supreme Court said:

“The court rejected from consideration the recitals of the attestation clause as being incompetent. The will bore the genuine signature of the alleged testator; the attesting clause recited full compliance with all the requirements of the statute with relation to the execution of the will, and bore the genuine signatures of the attesting witnesses; no evidence appeared tending to disprove the observance of any requirement of the statute; circumstances were proven corroborative of due execution; the attesting witnesses were produced, identified their signatures to the attesting clause, gave no testimony tending to contradict anything recited in said clause; and in such state of circumstances we think the attesting clause was competent to be received in evidence and to be considered in connection with the testimony of the two attesting witnesses on the question of the execution of the will by the said deceased. Such, of course, is not the rule when a will is presented to the county court for probate and the attesting witnesses are present in that court and under no disability, for the reason it is expressly provided, in order to authorize a county court to admit a will to probate, the execution of the will shall be proven by two or more credible witnesses, declaring, on oath or affirmation, they were present and saw the testator sign the said will in their presence, or that the testator acknowledged to them that the instrument purporting to be his last will was his act and deed. (Ill Rev Stats sec 2, chap 148, entitled ‘Wills.’) But it is also expressly provided by section 13 of the same chapter, that if the probate of any will shall have been refused by any county court and an appeal shall have been taken from such order of the county court to the circuit court, it shall be lawful for the party seeking probate of such will to support the same, on the hearing in the circuit court, by any evidence competent to establish a will in chancery.” (Emphasis supplied.)

The same principles of the then existing differences from an appeal to the circuit court from an order granting probate, and an order refusing probate, and of the evidentiary character of an attestation clause, were noted in Mead v. Presbyterian Church, 229 Ill 526 on 529, 82 NE 371.

In listing the requirements for admission to probate the statute makes no distinction as to the proof of the three requirements.

In Jenkins v. White, 298 Ill 502 on 508, 131 NE 634, where a witness testified that only one of the three pages was present when she signed, the court said:

“Where the attestation clause is in due form and the will bears the genuine signatures of the testatrix and the subscribing witnesses it is prima facie evidence of the due execution of the will, and this prima facie case will not usually be overcome because one of the subscribing witnesses testifies that all of the requirements of the statute were not complied with. (Thompson v. Karme, 268 Ill 168; Rupp v. Jones, supra.) The testimony of the subscribing witness who seeks to impeach the will should be received with caution, particularly where the weight of the evidence is against her testimony, which is conflicting in itself and positively contradicted by two other witnesses who appear to be credible witnesses.”

In Hart v. Hart, 290 Ill 476, 125 NE 366, where an attorney who had signed an attestation clause stating a belief in the soundness of the mind of the testator and later expressed an opinion that the testator was under the influence of sedatives and was not of sound mind and memory, the court said, (p 483) :

“The law is that where the attestation clause to a will recites all the particulars of a good execution as required by the statute, such clause will be prima facie evidence of the due execution of the will. Such proof will often prevail over the testimony of the attesting witnesses which tends to show that some of the requisites are wanting.”

Objectors attempt to distinguish Hart v. Hart by pointing out that two attesting witnesses did testify to the requirements. It is clear nevertheless, that the court weighed Attorney Monahan’s signature on the attestation clause against his testimony.

In Loomis v. Campbell, 333 Ill App 617, 78 NE2d 143, reference is made to Bley v. Luebeck, 377 Ill 50, 35 NE2d 334, which stated, (p 57) :

“Under said statutes, as construed by this court, the law is, therefore, definitely settled that on an appeal to the circuit court from an order of the probate or county court, either allowing or denying probate of a will, the proponent may support the will by any evidence competent to establish a will in chancery, but the contestant is limited, as to evidence of the execution of the will and the testamentary-capacity of the testator, to the subscribing witness.” (Emphasis supplied.)

The circumstance presented by Hill v. Kehr, 228 Ill 204, 81 NE 848, and Allison v. Allison, 46 Ill 61, could not arise today — that is to say, we no longer have the rule that on appeal from an order allowing probate only the testimony of two witnesses, and not other facts such as the attestation clause may be considered.

In the Loomis case where one of the attesting witnesses denied that the paper was a will when she signed it and said it was blank, the court relying on the other attesting witnesses and intrinsic evidence to be gained from the paper itself, dispensed with the requirement that two witnesses testify to the requirements set forth in the statute, and said (p 622) :

“It is settled law that execution of an instrument may be sufficiently proved where one witness testifies positively to the requisites of execution, and the other witness does not recollect or denies compliance with the statutory requirements. (68 CJ 1022; Mead v. Presbyterian Church, supra; In re Will of Porter, 309 Ill 220.) Under those circumstances it is the province of the circuit court to weigh the evidence and the circumstances surrounding the execution of the will. (In re Will of Porter, supra, p 224.) In so doing, it is generally held that where an attesting witness impeaches or denies the execution of the will or any fact essential to establish its validity, such testimony is entitled to little credence, and should be viewed with suspicion and caution. (Jenkins v. White, 298 Ill 502, 79 ALR 397; 68 CJ 1020.)”

Where the testator and two attesting witnesses in fact signed the will, every presumption will be indulged in favor of the execution and attestation of the will. Loomis v. Campbell, 333 Ill App 617, 78 NE2d 143; In re Estate of Willavize, 21 Ill2d 40, 171 NE2d 21.

Later cases supporting the duty of the trial court to weigh the evidence are In re Will of Rutledge, 5 Ill App2d 355, 125 NE2d 683 and Knaphurst v. Lindauer, 61 Ill App2d 269, 210 NE2d 23. In the Rutledge case, the witness first stated of the testator, “His appearance was O. K. to me,” and later on direct question as to whether he had an opinion that the testator was competent to make a will, answered, “That never entered by mind.” If taken literally and alone this last statement would mean he had no opinion. The will was admitted to probate. In the Lindauer case the court repeated the well known principle that the trial court’s judgment will not be reversed on appeal unless it is manifestly against the weight of the evidence.

A recent case emphasizing the importance of the attestation clause is In re Estate of Velie v. Valdes, 25 Ill2d 188,183 NE2d 515.

We do not think it necessary to go as far as the decided cases above referred to to sustain the order of the probate in this case. We have set forth the exact questions and answers of the witness. First it is difficult to tell whether the witness understood the question, “Do you have an opinion?” The question itself requires a reference to preceding questions to give it meaning. It is not fixed as to subject matter or date. It is not clear whether, if the witness understood the purport of the question, he thought that he should have some specific data as the basis of his opinion. He does not, in any way, contradict the statement of belief in the complete attestation clause. He did state that the testator requested him to witness the will which is, in itself, considerable evidence of competency. The trial court also had before it the attestation clause, and the positive testimony of the family physician as to the testator’s soundness of mind.

The order of the Circuit Court of the Fifth Judicial Circuit, Coles County, Illinois, is affirmed.

Affirmed.

CRAVEN, P. J. and SMITH, J., concur.


author: CRAVEN, P. J.

text:
    Euclid Engineering Corporation, an Ohio Corporation, Plaintiff-Appellant, v. Illinois Power Company, an Illinois Corporation, and Archie Kraakevik, Defendants-Appellees.
    Gen. No. 10,799.
    Fourth District.
    January 26, 1967.

      Rosenberg, Rosenberg & Bickes, of Decatur, for appellant.
    LeForgee, Samuels, Miller, Schroeder & Jackson, of Decatur, for appellees.
   CRAVEN, P. J.

This appeal arises from a decision of the trial judge, sitting without a jury, that a contract did not exist for the sale of two diesel generators to Euclid Engineering Corporation by Illinois Power Company and from a further decision that no such contract was made by Archie Kraakevik, an agent and employee of the defendant power company.

The plaintiff’s theory on appeal is that the correspondence between it and the Illinois Power Company constituted a valid and enforceable contract of sale between the parties under sec 2-204 of the Uniform Commercial Code (Ill Rev Stats 1963, c 26, § 2-204) and that such contract was not rendered void because the Illinois Power Company failed to obtain the approval of its bondholders in accordance with the Illinois Public Utilities Act. With respect to the defendant Kraakevik, plaintiff claimed that if the defendant power company was not liable under an otherwise enforceable contract because it was void under the Public Utilities Act, then Kraakevik is liable to the plaintiff for breach of his implied warranty of authority to contract.

The appellees’ position is that there was no agreement for sale within the meaning of sec 2-204 of the Commercial Code (Ill Rev Stats 1963, c 26, § 2-204) and that even if such contract did exist, it was void under the provisions of sec 27 of the Public Utilities Act (Ill Rev Stats 1963, c 111%, § 27 (c)). Defendant Kraakevik denies that any circumstances existed under which he could be held personally liable to the plaintiff because plaintiff was chargeable with notice of the provision of the Public Utilities Act which required Commission approval for the sale of tangible personal property.

A consideration of these issues requires a statement of the facts in some detail. The defendant Illinois Power Company, on May 14,1963, wrote a letter to the plaintiff corporation. This letter follows:

“We are enclosing descriptive data on two diesel generator units recently retired in excellent condition at our Vandalia, Illinois power plant. This plant was used for a relatively short time as a peaking station until additional lines from our steam plants were extended to this load center. In recent years operation has been little more than weekly test runs. Note the low total operating hours.
“There is a railroad spur within about fifty feet of the station and there should be no problems in transporting the equipment with a minimum of dismantling.
“This equipment is offered for sale ‘where is and as is’ subject to prior disposal and subject to our acceptance of purchaser’s assurance that the units will be used outside of the Illinois area. If you are interested please submit your best offer in writing to reach us on or before May 31,1963.
“If you wish to inspect the equipment simply let us know when you will arrive so that we can have one of our engineers at the site to assist you.”

One month later, on June 14, 1963, there was a long-distance telephone conversation between the vice-president of the plaintiff corporation, George Kohn, and G. H. Wright of Illinois Power Company, followed by a letter from plaintiff to Illinois Power which in pertinent part was as follows:

“Subject your prompt acceptance, we will pay the sum of $30,000.00 where is and as is, Vandalia, Illinois, the two 1000KW General Motors diesel engine generator units, with associated equipment, more fully described specifications attached your letter May 14,1963.
“This offer is subject our inspection and approval.”

A subsequent telephone conversation occurred on June 24, 1963, between J. W. Kohn, president of the plaintiff corporation and G. H. Wright of Illinois Power, and was followed by a letter from defendant Kraakevik to Kohn which stated:

“Confirming telephone conversation this morning with our Mr. G. H. Wright, we accept your offer of thirty thousand dollars ($30,000.00), where is and as is, for the two 1,000 KW General Motors diesel engine generator units and associated equipment at our Vandalia, Illinois power plant, which you are buying for resale to a Montreal customer.
“We understand your offer is subject to your inspection and approval of the equipment and such inspection will be made promptly, — within the next week.
“Our acceptance is with the understanding you will handle removal and payment per the terms of our ‘short form’ contract which will be mailed within the next day or two.”

Thereafter, on either July 1 or July 2, 1963, George Kohn met with Kraakevik and others at the power cornpany and went to Vandalia to inspect the diesel generators and equipment with a Mr. Gann from Illinois Power. Upon returning to Decatur from Vandalia, Kohn attempted to leave a check to pay for the equipment in the amount of $30,000 with Kraakevik, who refused to take it at that time. Later, on July 3, plaintiff sent a letter to the defendant containing a check for $30,000. This letter read as follows:

“Dear Mr. Kraakevik:
“Referring conferences in your office July 1 and 2 which confirmed acceptance of our offer the two 1000KW General Motors Model 567-B diesel engine generator units with associated equipment, located your Vandalia, Illinois plant, all in accordance with your communication May 14, 1963, with specifications attached and our proposal of June 14, 1963. All this equipment having been inspected by me with your Mr. O. L. Gann. In accordance your request, we are hereto attaching our check No. B-7717 in the amount of Thirty Thousand Dollars ($30,000.-00) in full payment of this machinery.
“It is regrettable that our negotiations for the purchase of this equipment should result in controversy regarding our ultimate disposition for resale.
“We, therefore, wish to clarify our position that although we are negotiating and intend to make disposition to a Canadian customer, we nevertheless want to be free making disposition within the United States, except the Illinois area, which you specified as restricted in your proposal May 14. We also are not in accord with other conditions imposed by you, namely:
“a) Your acceptance of our purchase contingent upon permission from Illinois Power Commission;
“b) Your acceptance of our purchase subject to release by your mortgage or bond holders;
“c) Your acceptance our purchase subject to final approval of your Board of Directors.
“The above conditions which you have emphasized very strongly are not part of our agreement and never previously mentioned.
“We will furnish at our own expense liability insurance coverage and Illinois Workmen’s Compensation certificate.”

Since plaintiff relies only on the correspondence between parties, the provisions of the short-form contract referred to therein and the substance of the conversations by telephone and at the July conferences are not pertinent to a determination of this appeal.

The Commercial Code is entitled to a liberal construction. The provision relied upon by plaintiff still requires an agreement or a meeting of the minds between the negotiating parties. One of the tests provided by the statute is conduct by both parties which recognizes the existence of such a contract. The whole section states:

“. . . (Sec) 2-204. Formation in General. (1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.
“(2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.
“(3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.” Uniform Commercial Code (Ill Rev Stats 1963, c 26, § 2-204).

The original letter to plaintiff of May 14, 1963, was not an offer but was an invitation for the plaintiff to make an offer. The letters of June 14, 1963, and June 24, 1963, standing alone, without further evidence, and without further disagreement between the parties, would have constituted a contract, but it is clear from the letter submitted by plaintiff on July 3, 1963, that the plaintiff recognized that during all of this period of time negotiations had never terminated. Fundamental to plaintiff’s undertaking to purchase the equipment offered for sale, was defendants’ acceptance of the terms under which plaintiff would meet defendants’ requirement that the defendants be assured that the units, if purchased, “will be used outside of the Illinois area.” Plaintiff’s letter of July 3 clearly indicates that it believed that this requirement was satisfied by its assurance to Illinois Power that such a sale would not be made. However, it was not up to the plaintiff to decide whether such assurance, standing alone, was evidence satisfactory to the defendant of an offer within the scope of defendant’s request for assurance that the equipment would not be used in the Illinois area subsequent to its sale. Defendant was free to accept or reject any proposal made by plaintiff designed to meet the requirement that the equipment, if sold, would be used elsewhere than in the Illinois area and it is manifest that defendant was never satisfied that plaintiff had given it sufficient assurance concerning to whom the equipment would be ultimately sold and where it would be placed for use, to allow the defendant to treat the offer as acceptable.

The law which we deem applicable to the facts respecting the existence of a contract between Euclid Engineering Corporation and Illinois Power Company is well stated in Bailey v. Eater, 53 Ill App2d 37, 42 (202 NE2d 656, 659 (5th Dist 1964)):

“The law is well settled that in order for a contract to come into being, there must be a meeting of minds of the parties to the contract. Maloney v. Crest Finance Co., 39 Ill App2d 378, 188 NE2d 739; Calo, Inc. v. AMF Pinspotters, Inc., 31 Ill App2d 2, 176 NE2d 1; Toto v. Durand & Kasper Co., 214 Ill App 449. We believe the rule to be well stated in ILP, Yol 12, Contracts, Section 31, as follows:
“ ‘One of the essential elements for the formation of a contract, other than a contract implied in law or quasi contract, is a manifestation of assent by the parties to the terms thereof. It is essential that both parties assent to the same thing in the same sense and that their minds meet on the essential terms and conditions.’ ”

The Uniform Commercial Code has not made any change in the basic law.

Because we are unable to find agreement between the parties from their negotiations, we must affirm the finding of the trial court that no contract existed. Because of this finding we do not determine whether, if a contract had existed, the provisions of the Public Utilities Act, particularly sec 27 thereof (Ill Rev Stats 1963, c 111%, § 27(c)), would void the parties’ agreement. We also are not required to pass upon the alleged liability of the defendant Kraakevik.

For the above and foregoing reasons, the judgment of the circuit court of Macon County is affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.


text:
    Elizabeth G. Halpin, Plaintiff-Appellee, v. Pekin Thrifty Drug Co., Inc., an Illinois Corporation, Defendant-Appellant.
    Gen. No. 66-10.
    Third District.
    January 30, 1967.
    Rehearing denied March 9, 1967.

      Cassidy & Cassidy, of Peoria, for appellant.
    Trager & Trager, and James A. Cummings, of Peoria, for appellee.
   STOUDER, P. J.

This is an appeal from a judgment on a jury verdict in the Circuit Court of Tazewell County in the amount of $27,500 for Plaintiff, Elizabeth G. Halpin against Defendant, Pekin Thrifty Drug Co., Inc. Defendant appeals from the order of the trial court denying its post-trial motion for judgment notwithstanding the verdict or in the alternative for a new trial.

The material facts are essentially undisputed. On the date of the accident, May 12, 1962, Defendant was the owner and operator of a drugstore located in Pekin, Illinois. Plaintiff, while a customer at the drugstore fell and was injured. Plaintiff had entered the drugstore for the purpose of having a prescription for her father filled. She had obtained the prescription and left, later determining that the prescription had been filled for a “Mrs. Halpin” whereupon she returned to the drugstore and questioned the accuracy of the prescription. During the process of this questioning, Plaintiff was in the area of the drugstore designed for the purpose of allowing customers to have prescriptions filled and obtaining the prescriptions. Upon her questioning the accuracy of the prescription, Plaintiff was invited by a pharmacist, Defendant’s employee, to come into the area not designed for customer use. The prescription area to which Plaintiff was invited, was partitioned off, not generally accessible to patrons. Plaintiff entered the area through a door after which she took two or three steps, turned to her left and took an upward step five and one-half inches high, through a passageway or door placing her in the prescription department. The floor covering in the corridor and on the floor of the prescription room was a rubber tile all of the same pattern. The binding on the step, not visible from the top of the step, was a non-slippery aluminum housing. The riser between the two levels was of a color contrasting with the floor covering on the surface area. Defendant’s exhibits one and four show that the contrasting color of the riser is not visible to a person descending the step. Plaintiff, after entering the prescription area and verifying the accuracy of the prescription, left, following the course which she had used in entering the area. As Plaintiff walked over the difference in elevation she fell causing her injuries which were severe and permanent. Plaintiff testified that at the time she fell she was looking down at the floor for the step but did not see the step because the color of the floor was all the same. The differential between the time Plaintiff entered the prescription area and her fall was approximately three minutes. There was no guardrail at the point of difference in elevation.

Defendant first argues that the trial court erred in denying its motion for a directed verdict at the close of the evidence and its motion for judgment notwithstanding the verdict because as a matter of law there is no evidence from which Defendant’s negligence or Plaintiff’s due care can be inferred. It is apparent from the evidence that the fall did not take place in an area customarily used by the general public or by patrons of the business. However Plaintiff was invited into the area where prescriptions were compounded and the prescription records kept which invitation extended to the use of the areas incident to ingress and egress from the prescription area. Pauckner v. Wakem, 231 Ill 276, 83 NE 202. Hence at the time of the fall Plaintiff was a business invitee and the Defendant was, in accord with the general rule, under a duty to exercise ordinary care for her safety. It is well settled that the owner of business premises is not an insurer of his invitees’ safety and his liability if any, rests solely on his failure to exercise ordinary care. Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill2d 469, 173 NE2d 443. That a person may be injured while on business premises does not give rise to any presumption or inference of negligence. Rarus v. J. C. Penney Co., 39 Ill App2d 42, 187 NE2d 529. Nor is the owner required to use the safest of all materials or methods. (See Watts v. Bacon & Van Buskirk Glass Co., 18 Ill2d 226, 163 NE2d 425, where negligence could not be inferred from the use of plate glass rather than tempered glass and Wroblewski v. Hillman’s, Inc., 43 Ill App2d 246, 193 NE2d 470, when negligence could not be inferred from failure to prepackage vegetables.) However we do not believe that the principles of the foregoing cases can be extended to support Defendant’s insistence that no inferences of negligence can be drawn from the sameness of color of the floor covering above and below the elevation. Pollard v. Broadway Cent. Hotel Corp., 353 Ill 312, 187 NE 487, presents a factual situation in many ways similar to the facts of the instant case. In the corridor leading from the hotel to the outside there were two steps located approximately 16 feet apart. The corridor, including the steps, was covered with terrazzo. Plaintiff entered the hotel through this corridor the night before the incident, registered, stayed at the hotel during the night and the next morning on leaving the hotel, by way of the corridor, fell on one of the steps. Looking down the corridor from the lobby toward the exit gave the appearance of a smooth level surface. There were lights in the corridor but none were lighted at the time of the fall. The court concluded that the hotel proprietor has no right to permit the existence of such a dangerous offset that the slightest mistake on the part of the guest will result in injury. Defendant owed the duty to exercise reasonable care to provide safe entrances so constructed and maintained that a guest would not fall or trip because of a misleading view afforded by the floor of the entrance to the hotel building. Defendant attempts to distinguish the Pollard case from the instant case on the grounds that in Pollard it was admitted that the lights were not on at the time of the accident. While the evidence in the instant case shows that lights were on, whether such lights were sufficient to illuminate and identify the elevation was controverted in the testimony. We do not believe this to be a proper case to say, as a matter of law, that Defendant was not negligent or that Plaintiff was contributorily negligent. From the conflicting evidence the jury could reasonably have inferred that the appearance of the area in question was deceptive because of the sameness of floor covering, insufficient lighting or lack of guardrail or warning signs. From its verdict it is apparent the jury did determine that Defendant failed to exercise ordinary care in some area and we are not disposed to interfere with such determination in view of the conflicting inferences which may be drawn from the testimony. Geraghty v. Burr Oak Lanes, Inc., 5 Ill2d 153, 125 NE2d 47. The testimony likewise is subject to an interpretation which would support Plaintiff’s contentions of due care for her own safety rather than Defendant’s argument that all reasonable men must conclude that she was not in the exercise of such care. In view of the conflicting evidence this is not a case where the Plaintiff failed to see a condition or hazard which was clearly visible nor was the hazard equally known to both parties as in the case of Clark v. C. P. Scott Co., 340 Ill App 260, 91 NE2d 452.

Defendant next argues that Plaintiff’s prejudicial and inflammatory conduct in the presence of the jury and Plaintiff’s counsel’s prejudicial remarks in closing argument precluded a fair and impartial trial for Defendant. During the course of the trial Plaintiff’s conduct was such that the court apparently felt it necessary to admonish her several times finally calling a recess in order to further admonish her. It appears from the record that Plaintiff rather persistently volunteered information which was uncalled for by the questions, was not responsive to questions, referred repeatedly to the fact that her father had had a stroke and was ill and that her mother had died seven years ago and that at one time she broke down and shed tears in the presence of the jury. While another witness was testifying Plaintiff protested from her chair at the counsel table and during her own testimony, at least at one time, demonstrated her inability to walk properly. The record shows an objection to the latter by Defendant and the court’s order that the jury disregard the demonstration. While admonitions from the court to Plaintiff directing her to be more responsive, not to volunteer information and not to demonstrate are apparent from the record it is not apparent that counsel for the Defendant made any objections at that time nor that he at any time moved for a mistrial or withdrawal of a juror. During Plaintiff’s closing argument counsel requested that the jury put themselves in the place of Plaintiff, Defendant objected and the objection was sustained. Counsel immediately repeated his appeal that the jury consider themselves before such fall in the place of the Plaintiff and the Defendant repeated his objection and the court made no ruling thereon. In Chicago & E. R. Co. v. Meech, 163 Ill 305, 45 NE 290, a personal injury action, Plaintiff became hysterical, broke out crying, uttered a cry of distress and was carried out of the courtroom. Immediately Plaintiff’s wife exclaimed “you are killing my husband, you will be responsible for the death of my husband.” The witness on the stand at that time then began to cry and was excused temporarily. In answer to the contention that a new trial should be granted for prejudicial conduct the court held “The fact that a Plaintiff or Defendant or witness or any other person, suddenly swoons or faints, or gives vent to hysterical exclamations, or breaks down with hysteria, does not call for the granting of a new trial; and especially so when the party claiming to be prejudiced does not ask for the withdrawal of a juror and continuance of the case, but lies by and speculates upon his chances for a verdict. It is hardly probable that the occurrence in question affected in any way the verdict. If it had any effect, it was as likely to prejudice as to help the case of the Plaintiff. Of course, if it appeared that the dramatic occurrence that took place in the midst of the trial was intentional, and for an improper motive, it would afford ground for setting aside the verdict.” See also Buckler v. Sinclair Refining Co., 68 Ill App2d 283, 216 NE2d 14. From the record before us we find no evidence from which the trial court should have concluded that the Plaintiff’s conduct was intentional or the result of an improper motive. The trial court could have concluded that Plaintiff’s conduct was a spontaneous and emotional reaction and that her failure to limit answers to the questions asked or to give responsive answers was the result of her unfamiliarity with courtroom proceedings and the tension engendered thereby. If Plaintiff’s conduct had any prejudicial effect it may have well been that she was the one prejudiced rather than Defendant.

Likewise we believe that no error was committed by the trial court on account of improper remarks in final arguments by Plaintiff’s counsel. Although the remarks were improper no claim is or could be made that the amount of the verdict is excessive. Accordingly we fail to see how such remarks could have prejudiced Defendant.

Finding no error in the judgment of the Circuit Court of Tazewell County, judgment is affirmed.

Judgment affirmed.

ALLOY and CORYN, JJ., concur.


author: JUSTICE CORYN.

text:
    The People of the State of Illinois, Appellee, v. Ronald L. Tee, Appellant.
    Gen. No. 66-23.
    Third District.
    January 30, 1967.
    Lauder & Murphy, of Monmouth, for appellant; Lamar Evans, State’s Attorney, of Oquawka, for appellee.
   Opinion by

JUSTICE CORYN.

Not to be published in full.