author: MR. JUSTICE MCCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clarence Sledge (Impleaded), Defendant-Appellant.
    Gen. No. 50,031.
    First District, Fourth Division.
    April 7, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

Clarence Sledge, the defendant, was convicted of robbery in a jury trial in the Criminal Division of the Circuit Court of Cook County and sentenced to three to seven years in the Illinois State Penitentiary. The defendant was tried before a jury at the same time as his codefendant, Jackson, was tried in a bench trial. A summary of the testimony of all the witnesses is set out in People v. Jackson, 71 Ill App2d 293, — NE2d —, which opinion was handed down this same day.

In his brief the defendant, Sledge, admits that there was sufficient evidence adduced at the trial to warrant the jury’s verdict of guilty. He urges in this court that the judgment should be set aside on the ground that he did not receive a fair trial. He objects (1) that the prosecutor made prejudicial remarks in the presence of the jury; (2) that it was error to introduce into evidence defendant’s prior conviction of a crime in another state which was not classified as an infamous crime under the Illinois statute; and (3) that the court erred in refusing a cautionary instruction offered by the defendant.

The first objection of the defendant relates to that portion of the trial when he was testifying in his own behalf. He had testified without objection on direct examination that one of the arresting officers had struck him with his fist. The prosecutor cross-examined him with respect to that phase of his testimony and adduced testimony that Officer Scanlan had struck the defendant with his fist in the mouth and in the eye. Then the prosecutor asked him which eye; the defendant indicated and stated that there was a Cook County Jail I. D. card which would prove he was struck in the eye. Then the following occurred:

Q. That is what I was going to show you.
A. He hit me in the right eye, there, it’s black.
Q. That eye is ?
A. Yes.
The State’s Attorney then asked: Would you stipulate to have this go to the jury ?
The Court: If you want to enter into a stipulation, talk about it outside the presence of the jury.
The State’s Attorney then asked the following:
Q. That is the evidence here, this picture—
Sledge answered: That is where he hit me in the eye.
Counsel for Sledge then objected and the court sustained the objection.
The State’s Attorney stated: I am through with this witness; want to stipulate to the card ?
At that time counsel for Sledge moved for a mistrial, which motion was denied by the court.

The defendant argues that since the I. D. card was not introduced in evidence the record does not reflect whether or not it was impeaching, and that by inviting defense counsel to stipulate to the I. D. card in the presence of the jury without first showing it to him, the Assistant State’s Attorney had placed counsel for defendant in a compromising position. However, there was no indication that the State did not show the card to Sledge’s counsel, and it seems from the record that Sledge had seen the card during the examination. In support of his position the defendant cites Cohen v. Weinstein, 231 Ill App 84, where in a civil case during cross-examination the appellee’s counsel refused to allow appellant’s counsel to see a written statement from which appellee’s counsel appeared to be cross-examining a witness. In its opinion the court recited the rule that the witness was entitled to see the statement and the court concluded that if the witness had the right to see the statement it followed that his counsel had the same right. The court said:

“Fairness would seem to require opposing counsel to submit the statement to the witness’ counsel after it had been shown to the witness. ... In the somewhat analogous practice of using memoranda and documents for the purpose of refreshing the recollection of a witness, the opposite party is entitled to see them. . . . [The] counsel for appellant was entitled to see the statement.”

In that case the court did not reverse on this point, however, nor did it indicate that it was prejudicial error which would require a reversal. The case was reversed on the ground that the verdict was manifestly against the weight of the evidence, and that serious errors occurred in the giving of certain instructions.

The defendant also cites People v. Rothe, 358 Ill 52, 192 NE 777; however, in that case the Supreme Court took the view that the defendants did not have a fair trial because of the attitude of the trial court which was regarded as highly prejudicial. The court pointed out that the prosecution in that case was permitted to prove by an officer that the defendants refused to make a statement at the police station, that the refusal had no tendency either to prove or disprove the charge against them, and that the admission of such evidence was prejudicial.

In the instant case the prosecution was offering to stipulate to an I. D. card which had first been brought into the case and to the knowledge of the jury by the defendant himself. From a reading of the entire record it does not appear that the conduct of the prosecution amounted to reversible error. The doctrine of harmless error still exists in Rlinois.

The defendant further argues that he was prejudiced when the prosecution introduced into evidence the fact that he had been convicted of a crime when such crime was not considered infamous as defined by Chapter 38, section 124-1, and Chapter 51, section 1, Illinois Revised Statutes 1963. In the instant case the defendant’s conviction for the crime of attempted breaking and entering an automobile in another state was brought to the attention of the jury. The record shows, however, that such information went to the jury as a result of direct testimony by the defendant himself and later by a stipulation between the prosecution and the defense, which stipulation is set out in full in People v. Jackson, supra.,

It is well established that a defendant cannot on review object to testimony which he himself introduced, nor can objections not presented for the trial court to rule on be asserted for the first time in a court of review. People v. Scott, 63 Ill App2d 232, 211 NE2d 418; and People v. Swets, 24 Ill2d 418, 182 NE2d 150. The defendant cites and relies on People v. Kirkpatrick, 413 Ill 595, 110 NE2d 519, where a conviction of an offense which was not an infamous crime was brought before the jury. However, in that case the defense immediately objected and so preserved the point for appeal. That case is not applicable here, nor is defendant’s argument that in order to have a waiver there must be a waiver by defense counsel, together with a specific waiver by the defendant. There is no question but that defense counsel was competent, and where a competent counsel represents a defendant it is his duty to object on behalf of his client to evidence which he considers improper. When no objection is made the point is waived.

The third argument raised by the defendant is that the following instruction offered by him was refused :

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

The defense tendered this instruction in order to caution the jury with reference to Detective Robbins’ testimony that the defendant had admitted his participation in the robbery. However, the following instructions tendered by the State were given:

“The Court instructs the jury that the jury are the sole judges of the credibility of the witnesses. In judging the credibility of the witnesses in this case, you should carefully scrutinize the testimony given, and in doing so, you may consider all the circumstances under which any witness has testified, his demeanor and manner while on the stand, his interest, if any, in the outcome of the case, the relations which he bears to the State or to the defendant, the manner in which he might be affected by the verdict, and the extent to which he is contradicted or corroborated by any other credible evidence.
“The jury are the sole judges of the facts in the case, the credibility of the witnesses, and the weight to be given to their testimony. And, in anything that the court may have said throughout the trial or anything that the court may say in the instructions, the court has not intended and does not now intend to express any opinion upon the facts of the case, upon the credibility of the witnesses, or the weight to be given to their testimony.”

The court also gave the two following instructions tendered by the defense:

“The Court instructs the jury that they are not bound to believe anything to be a fact simply because a witness has stated it to be a fact, provided the jury believe from all the testimony that such witness is mistaken or has testified falsely; you will not indulge in a speculation or supposition concerning what any witness might have testified to; you will determine this case only according to the evidence before you and nothing else.
“It is for the jury to determine from all the evidence in the case, what weight or credibility should be given to any alleged confession made by the defendant.”

The court’s ruling was not in error. It has been repeatedly held that instructions calling particular attention to certain portions of the evidence are improper. In Geohegan v. Union El. R. Co., 266 Ill 482, 107 NE 786, the Supreme Court held that certain instructions were properly refused, and said:

“These instructions called particular attention to certain portions of the evidence. They isolated a fact and called the attention of the jury to it. This court has repeatedly held such instructions objectionable. [Citing cases.] ”

It is also the rule that instructions which are repetitious should not be given. In Ryan v. Monson, 33 Ill App2d 406, 179 NE2d 449, it is stated:

“A rule of law once clearly stated to the jury is enough and should not be repeated. Nor should the court give instructions which lay undue stress upon particular matters. 35ILP Trial, secs 193,199.”

In the instant case the instructions fairly and clearly state the law and are sufficient. The judgment of the Criminal Division of the Circuit Court is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE McCORMICK

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Jackson, Defendant-Appellant.
    Gen. No. 50,035.
    First District, Fourth Division.
    April 7, 1966.
    Marshall A. Patner, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

Joseph Jackson, the defendant, was convicted of robbery in a bench trial on June 23, 1964, in the Criminal Division of the Circuit Court of Cook County and sentenced to three to five years in the Rlinois State Penitentiary. Clarence Sledge was also indicted in the same proceeding. Jackson waived a jury and his bench trial was heard simultaneously with Sledge’s trial by the jury. The appeals to this court by the two defendants were not consolidated and People v. Sledge will be considered separately, although the witnesses and the evidence are the same in both instances.

Defendant Jackson here contends that he was not proved guilty beyond a reasonable doubt; therefore, it becomes necessary for this court to review the evidence. The State presented three witnesses: Officers Daniel Scanlan and Henry Campbell of the Chicago Police Area Four Task Force Undercover Unit, and Detective William Robbins of the Chicago Police Area Four Robbery Unit. The codefendants, Jackson and Sledge, both testified on their own behalf.

Officer Scanlan testified that on the evening of February 5, 1964, about 8:30 p. m., he was in disguise as a member of the Undercover Unit of the Chicago Police Department; that at that time he was working with about seven other policemen, including Officer Campbell, who was watching him from across the street. Scanlan feigned drunkenness and staggered westward along the 900 block on West Madison Street in Chicago. He had in his right-hand coat pocket $28 which had been given him for this assignment. He also had on his person his service revolver and radio equipment. He testified that he kept his hand in his left-hand coat pocket, where he had his revolver. He said that Jackson, accompanied by Sledge, stopped him and asked if Scanlan would give them money for a drink; when he refused, the two defendants, Jackson and Sledge, stepped back three or four feet, conversed briefly, and that Sledge then said, “All right, get his money”; whereupon the two men pushed Scanlan; Jackson went into Scanlan’s pocket and “tore” the $28 out. Scanlan told the court that he was pushed into a five-by-eight store window, that the glass shattered onto the street but not into the store, and that he did not get cut — not even on his hands — nor did his clothes get torn. His “cover men” immediately came to his aid and placed the defendants under arrest. Scanlan said that the area where the complained-of incident took place was well lighted, and that there were people on the street who were coming in and out of taverns. He testified that the general method employed by the undercover unit was for one policeman to simulate being drunk by acting sick and staggering down a street, with money hanging out of his pocket; that such work was performed about twice a week in areas where there was a high rate of strong-armed robberies; and that he had undergone no special training for such duty.

On cross-examination Scanlan denied having invited the defendant to have a drink with him or having dropped the money on the ground, or that he had arrested the defendant, Jackson, as he tried to help pick the money up, or that he had punched or kicked the defendants. He testified that he used only as much force as was necessary to effect an arrest; that he had no knowledge of whether or not the defendant, Jackson, was wearing a coat, or if or how such a coat might have become torn; that the police had not inventoried any of the property taken from the defendants. He denied that it was the defendant, Jackson, who had been pushed through the store window, or that the reason Jackson’s coat was missing was because it was all torn up. He denied having hit Sledge with his fist. He testified that he had never overheard defendant Sledge say he was not with Jackson; that he, himself, had never said that Sledge was walking apart from Jackson. He denied that Sledge was arrested in connection with this incident because of his looks or because he had a Cook County Jail card in his possession.

Officer Campbell testified that he followed Officer Scanlan for about two blocks on the opposite side of the street; that he, too, was dressed in street clothes; that he saw two men stop Scanlan; that when he observed them grabbing Scanlan he went across the street, and that he then heard the window crash. He stated that when he reached the other side of the street another officer had apprehended Sledge, and that he, Campbell, apprehended Jackson and took $28 out of his hand. He said that it was cold on the night in question, but he did not recall how Jackson was dressed or if Jackson wore a coat; that he did not see either of the defendants reach into Scanlan’s pocket; that he had not heard what either of the two men had said to Scanlan; that he had not undergone any special training before entering the undercover unit; and that he could not tell the court how many people were around at the time of the incident, although he did recall that the area was well lighted. He told the court that the police searched the defendants but found no weapons; that the police did not inventory the clothes of the defendants upon entry into the police station; that he was not in the police car that took the defendants back to the police station; that he thought he had made out an arrest slip on them; and that the only conversation he had with Jackson was in connection with filling out the arrest slip. He further testified that at the time of arrest the defendants said nothing.

Detective Robbins testified in substance that while the police and the defendants were at the police station immediately after the arrest, he asked Sledge why he had tried to rob Scanlan, and that Sledge replied that he wanted the money in order to purchase more liquor; that Jackson was sitting next to Sledge at that point, and that Jackson nodded his head up and down when he heard Sledge give that answer. Robbins told the court that the arresting officers were sitting about five or ten feet away from the defendants when Sledge made this statement and that they were making out their reports at that time. On cross-examination the witness said that he did not reduce Sledge’s statement to writing.

It was stipulated that Jackson was 31 and that Sledge was 36.

Defendant Jackson testified on his own behalf that he was walking home when he saw Scanlan, staggering as if intoxicated, coming towards him; that Scanlan addressed him and suggested that they get a drink, to which he replied, “Well, I have a part of it”; that Scanlan said he had money, reached into his pants pocket and pulled out some bills; that some of the bills fell to the ground; that as the defendant stooped to help pick them up, people from everywhere started hitting him; and that he asked them why they were doing so, and implored them not to hurt him. Jackson told the court that during the scuffling he was pushed up against a window, that the glass shattered and cut his plaid coat to pieces; that the coat was later left somewhere at the police station; that the first time he saw Sledge was during the melee, and as far as Jackson was concerned, Sledge was just another man until Jackson heard one of the police say, “This is one of them, get him.” Jackson further testified that at the police station the two defendants were seated in the same room, but that they did not sit next to each other. In the course of his testimony Jackson denied ever having seen Sledge before the time they were arrested; denied that he had heard Sledge tell Detective Robbins that the robbery was committed in order to get money for liquor; and denied that he ever tried to rob Scanlan, or that he had ever nodded his head up and down in response to any incriminating statement made by Sledge. He testified that the police had treated him roughly.

Clarence Sledge also testified as codefendant; his story was as follows: He was walking home when he saw Jackson and Scanlan. Jackson was bent over and Scanlan was holding him. The area was well lighted and there were quite a few people around. Sledge kept walking and was about two steps past Scanlan when the police grabbed him. He denied the police accusation that he was with Jackson, and a search revealed that Sledge had $15 and a County Jail I. D. card — Sledge had been there on a gambling charge for a few days. Sledge told the court that at first Scanlan said that Sledge was not with Jackson, but when the police found the I. D. card Scanlan said that Sledge and Jackson were together, and the police then took them to the station; that Sledge, Scanlan, and another young officer, who was not in court at the time of the trial, were all together in the back seat of the police car; that the police kept asking Sledge if he had been with Jackson, and he kept replying, “Ask Officer Scanlan, he told you before I wasn’t with the guy”; that Scanlan replied that Sledge and Jackson were together, and Scanlan hit Sledge in the mouth. In his testimony Sledge further denied having told the police that he wanted the money for liquor. He denied having been seated next to Jackson at the police station, and he denied having been with Jackson, or having tried to rob Scanlan. On direct examination, in response to a question by his own attorney, he testified that he had been in jail before in another state for larceny from the person; that he had pleaded guilty; that afterwards he was charged with having attempted to break into an automobile, to which charge he pleaded guilty and was again sentenced. During the course of the trial and in the presence of the jury, the Assistant State’s Attorney stated:

“. . . [I]t is hereby stipulated by and between the defendant and through his counsel, and the State’s Attorney of Cook County that on December 15th of 1949 said defendant was sentenced to the Michigan State Penitentiary at Jackson, Michigan for the crime larceny from the person and received a sentence of from six months to ten years. It is further stipulated by and between the above named parties that Clarence Sledge was sentenced to the Michigan Penitentiary located at Jackson, Michigan on May 7, 1951 for the crime of attempt [sic] breaking and entering of an auto and received a sentence of 9 months to 2 years.”

On cross-examination Sledge told the court that he had been staying with his mother while his broken leg was mending and the cast had been taken off the day of the incident, although there were some bandages still on his leg that day. He insisted he had never seen Jackson before the time of arrest, and that the police had treated him roughly.

In this court the defendant argues that there were inconsistencies and improbabilities in the State’s evidence and that the conviction should therefore be reversed. In support of his argument he cites People v. Stevenson, 25 Ill2d 361, 185 NE2d 199, and People v. Dougard, 16 Ill2d 603, 158 NE2d 596. The Dougard case is not applicable inasmuch as the prosecution conceded on appeal that there was no direct evidence to show that the defendant had physically aided the burglar, Larkin, who had pleaded guilty at the trial. In the Stevenson case, which was a bench trial, the Supreme Court held that some of the circumstances of the incident as related by the complaining witness were unbelievable on their face. We therefore conclude that these cases are not pertinent.

In the instant case the trial judge heard the witnesses, had the opportunity to observe their demeanor during their testimony, and whatever conflicts there were in the evidence were fully presented for the trial court’s consideration. It has never been held that in a criminal trial the trier of fact is required to seek out a series of potential explanations compatible with innocence and elevate them to a status of reasonable doubt. People v. Owens, 23 Ill2d 534, 179 NE2d 630. The trial court held that from all the evidence presented before it the defendant, Jackson, was guilty beyond a reasonable doubt. The judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Arthur Davis, Defendant-Appellant.
    Gen. No. 50,424.
    First District, Fourth Division.
    April 7, 1966.

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

delivered the opinion of the court.

The defendant, Arthur Davis, was convicted of the possession of narcotics in violation of chapter 38, section 22-3 of the Illinois Revised Statutes, and was sentenced to serve a term of not less than three nor more than eight years in the penitentiary. On appeal he urges that the judgment be reversed on the ground that the evidence was not sufficient to support a conviction since the State failed to meet its burden of proof of identification beyond a reasonable doubt.

From the record it appears that on October 21, 1964, at about 12:30 a. m., two police officers — Officer Jurich and Officer Daniher — were in a police car at 39th Street and South Park in Chicago, when they saw a 1952 Hudson with broken rear reflector travelling east on 39th Street. They followed the car and caught up with it at Vincennes Avenue where the Hudson was making a left turn. They observed that there were three occupants sitting in the front seat of the car. Officer Daniher testified that as the car made a left turn the police put their spotlight on it, and after the turn was completed he observed an arm, visible up to the shoulder, come out of the right window; he further testified that it was the arm of defendant Davis, who was sitting on the right side of the front seat, and that the defendant then threw away two tinfoil packets. Both cars stopped; the police officers got out of the car and Officer Daniher picked up the packets, opened one of them, and found smaller packages inside which contained a white powder. These packets were introduced into evidence at the trial. At the time they were thrown away the squad car was about 10 feet behind the Hudson. After they were picked up from the ground the officers approached the Hudson and ordered the occupants out of the car. Officer Jurich, who had been driving the squad car, corroborated the testimony of Officer Daniher as to their following the Hudson, and stated that he saw part of an arm go out of the right side of the Hudson window, but all he could see from his position in the squad car was the shoulder. At that time Officer Daniher had remarked to him that someone was throwing something out of the window. Officer Daniher further testified that when the police noticed the contents of the packages they put the occupants of the Hudson under arrest and searched them. Officer Daniher asked the three occupants whether or not they had thrown the packages out and each said he had not, and they all denied having had possession of narcotics. It was stipulated at the trial that the packages introduced in evidence contained heroin.

The defendant testified on his own behalf and told the court that he was walking home in the early morning hours on October 21, 1964, when he was offered a ride by his friends who were in the Hudson in question. The driver of the car was one Howard Davis, and the other person in the car was one Chamberlain. The defendant testified that this was the first time he had met Chamberlain, although he had seen him before. He stated that when the Hudson turned left on Vincennes Avenue the driver noticed a spotlight and said, “It’s the police.” The defendant stated that he turned around to look out the back of the car, at which time Chamberlain moved his arm across the defendant toward the window and threw something out; that he did not know what was being thrown out; and that he had only been in the car for three or four minutes when all of this occurred. He then stated that the police officers searched the three occupants of the Hudson, and that Officer Daniher then showed Officer Jurich the packages he had found behind the Hudson. The three occupants of the car were taken to the police station, questioned as to their names and addresses, and were again searched. The defendant had identification on him showing that he had just been released from prison. The police officers then charged the driver of the Hudson with violations of traffic regulations, Chamberlain with disorderly conduct, and the defendant with violating the narcotics law. At trial the defendant expressly denied that he had in his possession or control any drugs as alleged in the indictment, and said that he did not know whether or not either of his companions had narcotics in their possession at the time he entered the car. He further testified that he had been released from prison 40 days before being arrested on the present charge; that he had been working and was staying with a friend; that the police asked him if he was on dope and he told them he was the only one in the car who wasn’t on dope. The trial court asked the defendant if this was the first time he had stated that Chamberlain had thrown his arm across the defendant towards the window and the defendant said it was, but that he had not previously been specifically asked that question. Officer Daniher, however, testified that at the time of arrest the defendant had said he did not know anything about the package thrown out of the window.

At the close of the State’s case the defendant had moved that the court find him not guilty on the basis that the State had not presented a prima facie case identifying him as the person who had thrown the packets from the car. The court properly denied the motion and stated that it considered Officer Daniher’s testimony sufficient to amount to a positive identification. There is no question that one of the occupants of the car was in possession of the narcotics and had thrown the tinfoil packages from the window. The question before the trial court was whether or not the defendant was sufficiently identified as that person. In People v. Gray, 24 Ill2d 229, 181 NE2d 162, it is held that the testimony of a witness as to identification, if positive, and if the witness is credible, is sufficient to convict, even though contradicted by the accused. The trier of fact has the opportunity to observe the witnesses giving their testimony; the reviewing court has before it only the cold record of the proceedings. Where the cause is tried without a jury it is the function of the trial court to determine the credibility of the witnesses and the weight to be afforded their testimony. Where that evidence is merely conflicting a reviewing court will not substitute its judgment for that of the trier of the fact. People v. Clark, 30 Ill 2d 216, 195 NE2d 631.

The defendant also argues that the evidence of the police officers was in conflict and points out that they did not testify in agreement as to the exact place their spotlight was turned on the Hudson; that there was some discrepancy as to the place where the tinfoil packages were found on the street; that Officer Jurich said they were found near the right front door of the Hudson, while Officer Daniher said they were found next to the front fender of the patrol car. The defendant argues that Officer Jurieh testified that Chamberlain, who was sitting in the middle of the front seat of the Hudson, wore a brown coat, while Officer Daniher said Chamberlain wore a black jacket. Such discrepancies are not sufficiently material to require a reversal.

The defendant’s testimony was contradictory and confused. He testified that after the three men in the Hudson saw the police car following them “. . . Chamberlain was sitting next to me. He threw something— passed his arm and went by me — his arm went up against me towards the window.” When defendant was asked whether he saw anything thrown he answered, “I didn’t see, actually, but I know something — probably, that’s what it was.” He was asked, “You didn’t see anything thrown?” He answered, “No, I didn’t see anything thrown.” He stated that he did not know what Chamberlain had with him; that at the time of the arrest the police officers had no conversation with any of the occupants of the Hudson car; that he did not know whether either of the two men with him had any unlawful narcotics in their possession because he had just gotten into the car. On cross-examination he testified that after the officers found the package of narcotics they asked each of the occupants of the car if they were on dope. Chamberlain and Howard denied that they were, and the defendant said, “No, I’m the only one in the car that wasn’t on dope.” He further testified that he found out while they were in the patrol car going to the police station that Chamberlain had in his possession ten more packages of narcotics and that Chamberlain and Howard at that time stuffed them up their noses. That this could be done in the presence of the police officers without their observing the actions of Chamberlain and Howard is unbelievable.

It is the rule that when a defendant voluntarily and knowingly takes the witness stand to testify on his own behalf he becomes the same as any other witness and runs the risk of being disbelieved. People v. Lane, 29 Ill2d 326, 194 NE2d 272; People v. Hansen, 28 Ill2d 322, 192 NE2d 359; and People v. Songer, 28 Ill2d 433, 192 NE2d 861. In the Songer case the defendant gave testimony attempting to explain his presence at the scene of a burglary. The Supreme Court said:

“As we stated in People v. Davis, 27 Ill2d 33, ‘When a defendant elects to justify or explain his presence at or near the scene of a crime, while denying participation, he must tell a reasonable story or be judged by its improbabilities.’ The question of whether or not to accept this explanation was for the jury and we can see no reason why their determination should be set aside in this case. The aforementioned evidence in our opinion fully supports the conclusion that the defendant was a participant in the burglary along with Hale and Banner.”

The defendant argues that in finding him guilty the trial court was relying on the weakness of the defendant’s case and not the strength of the State’s proof. In support of that contention he cites People v. Stevenson, 25 Ill2d 361, 185 NE2d 199, in which case the court said:

“. . . It is the contention of the People that the record here presents only a conflict between the testimony of Gondolfo and defendant and that we should abide by the trial court’s resolution of such conflict. In our opinion, however, the testimony of the complaining witness is so unconvincing, conflicting and unreasonable that a reasonable doubt of the defendant’s guilt must be said to exist.” [Emphasis supplied.]

However, the court denied defendant’s motion to find him not guilty at the close of the State’s case and thereby found that a prima facie case had been presented. Since the trial judge apparently gave no credence to defendant’s testimony, defendant was proved guilty beyond a reasonable doubt.

In the instant case the testimony of the two officers introduced by the State is direct and clear, with certain minor conflicts. It cannot be said that the State’s evidence is improbable, unconvincing or contrary to human experience. The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE DRUCKER

text:
    Thomas Kincaid, Plaintiff-Appellant, v. George Lagen and Leo Thanos, d/b/a Lagen’s Recreation Parlor and William Lapp, Defendants-Appellees.
    Gen. No. 50,465.
    First District, Fourth Division.
    April 7, 1966.
    Rehearing denied July 27, 1966.

      Theodore L. Forsberg, of Chicago, for appellant.
    Neil K. Quinn and Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellees, George Lagen and Leo Thanos, d/b/a Lagen’s Recreation Parlor.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion (if the court.

Plaintiff brought an action based upon negligence to recover the damages which were incurred by him while a patron in Lagen’s Recreation Parlor as a result of being struck by a bowling ball thrown by William Lapp. A judgment in favor of the plaintiff was entered upon a verdict returned by the jury against both of the defendants after which George Lagen and Leo Thanos, doing business as Lagen’s Recreation Parlor, and William Lapp filed motions for judgment notwithstanding the verdict and in the alternative for a new trial. The motions of Lapp were denied. The motion of Lagen and Thanos for judgment notwithstanding the verdict was granted and a judgment in their favor was entered, from which plaintiff appeals.

Plaintiff testified that he arrived at Lagen’s Recreation Parlor shortly after noon on March 11, 1956, with the intention of bowling; that he was an experienced bowler; that he was standing in an open area behind the alleys, approximately three or four feet behind the spectators’ seats, when he saw defendant Lapp emerge from the ball room “thumbing” a bowling ball ; and that he next remembered waking up in the hospital. Plaintiff also testified as to the proximity of the ball room to the open area in which he was standing and stated:

“This bowling room that I referred to where they keep the bowling balls is to your left as you enter the bowling alley. The door from that room leads to the open area. There was no doorway leading from the ball room into the alley proper. The approximate distance from the door of said ball room to the bowling lanes themselves was twenty feet — to the first alley. If you came out of this ball room you would have to walk to the open area to get to the lanes themselves.”

Plaintiff further testified that he “did not notice any signs around this bowling alley whatever” and that he had not previously seen a bowler in Lagen’s swinging a ball in that area. On cross-examination plaintiff testified that the ball was dangling from Lapp’s hand “and he was in a slight swinging motion.” Plaintiff admitted that in his sworn deposition he had stated that Lapp was swinging the ball in an orbit, about a foot each way, to get the feel of it.

William Lapp testified that he was an experienced bowler; that he arrived at Lagen’s at approximately 1:00 p. m. on March 11 with his wife and children; that he had forgotten his own bowling ball; and that he encountered difficulty in finding a suitable ball in the ball room because of the large size of his thumb. He further stated that:

“After I found this ball, I walked out of the room with the ball, and I swung the ball to feel the weight of the ball and get the feel of the ball; and as I swung it, coming up in an upward motion, the ball had slipped out of my hand and I hollered to Mr. Kincaid, and as I hollered he turned and the ball hit him up over the eye. I have seen bowlers take practice swings quite often.”
“. . . After the occurrence I had occasion to examine my fingers, when I was standing by Tom Kincaid; when he was on the floor. I noticed an oil film on my fingers. These were the fingers that I had in the bowling ball. I did not examine the ball.”
“. . . When I found this ball that I had at the time of the accident, and when I put my fingers into it, I did not feel anything unusual about that ball at the time. Then I walked from the bowling ball room.
“When I walked from the bowling ball room I had my fingers in the ball, and I was carrying the ball in front of me.”
“. . . I tried it [the bowling ball] for finger size. I got ahold of the ball and I was working my thumb in there to see that it would release when I’d use it. I did not notice anything unusual about the ball or the holes at that time.”

Lapp also testified that he had bowled at Lagen’s approximately four years and that only once or twice had he seen people take practice swings in the area of the accident.

Plaintiff’s wife testified and stated that she had been bowling for ten years and had observed other bowlers taking practice swings but “not in that area.”

Peter Lagen (son of defendant George Lagen) testified and stated that he had been employed at the alley for approximately four months and was present on the day in question; that no form of wax is used to clean the alleys in that they were maintained by a buffing machine; that he has never seen wax on any ball owned by the bowling alley; and that after the accident he placed the ball against the spectators’ bench and subsequently could not locate it. He further stated that there were no signs posted in the ball room that practice swings were permitted only in that room nor were there signs outside the room relating to practice swings, but that it is an ethic of bowling to take all practice swings in the ball room.

The evidence is in conflict as to the distance between the plaintiff and Lapp when the accident occurred, the estimates ranging from six to twenty-five feet.

A motion for judgment notwithstanding the verdict presents the single question whether there is in the record any evidence which, standing alone and taken with all its intendments most favorable to the party resisting the motion, tends to support the verdict of the jury. Ficht v. Niedert Motor Service, Inc., 34 Ill App2d 360, 181 NE2d 386.

Plaintiff contends that the evidence and favorable inferences therefrom tended to prove the negligence of the defendants and asserts first that defendants negligently failed to post signs to the effect that practice swings were not permitted in this open area. Plaintiff testified that he had never seen anyone take practice swings in this area; plaintiff’s wife testified that in ten years of bowling she had observed other bowlers taking practice swings but “not in that area”; Lapp testified that he had seen practice swings in the area only once or twice in four years; and Lagen testified that under the “ethics” of bowling, such practice swings are taken in the ball room. Therefore the negligent act of Lapp in swinging and releasing the bowling ball in this open area which struck the plaintiff was entirely unanticipated and unforeseeable by the defendants. One who owns or is in charge of property is bound to use reasonable care to keep the property safe for the benefit of those who come upon it as invitees. Ellguth v. Blackstone Hotel, Inc., 408 Ill 343, 97 NE2d 290. However, that person is not an insurer of the safety of invitees and is not required to foresee and guard against accidents of injuries to invitees re-suiting from unusual and unexpected occurrences which cannot reasonably be anticipated. Prater v. Veach, 35 Ill App2d 61, 181 NE2d 739; Alfortish v. Massachusetts Bonding & Insurance Co., (La), 171 So2d 705 (1965). Therefore, since the negligent act of Lapp was entirely unanticipated and unforeseeable, the defendants were not guilty of negligence in failing to post signs that such practice swings were allowed only in the ball room.

Plaintiff next asserts that there was oil in the holes of the ball and that defendants thereby provided Lapp with an unsafe bowling ball. The only evidence in support of that assertion is the testimony of Lapp who stated that he noticed an oil film on his fingers after the accident. There was no testimony that the balls which were owned by the alley had been cleaned or, if they would be cleaned, that an oily substance would be used. Moreover, this “oil film” was noticed by Lapp after the terrifying experience of striking plaintiff in the head prior to which he had been carrying the ball with his fingers in the holes all the way from the ball room. It is significant that Lapp did not notice anything unusual about the ball when he put his fingers into the holes while in the ball room. Certainly if there was oil in those holes Lapp would have noticed it at that time. The evidence and reasonable inferences therefrom do not support a finding that the defendants provided Lapp with an unsafe bowling ball.

Plaintiff asserts in addition that there was a negligent structural design of the premises vis-a-vis the location of the ball room, in that there should have been a door leading to the alleys proper directly from the ball room. However, the issue as to whether defendants were negligent in this respect was not presented by plaintiff to the jury for its consideration and therefore the jury could not have based its verdict upon a finding that such negligence existed.

We find that the evidence and favorable inferences which can be drawn therefrom do not tend to support the verdict of the jury against George Lagen and Leo Thanos, doing business as Lagen’s Recreation Parlor, and therefore the order of the court granting judgment notwithstanding the verdict is affirmed.

Affirmed.

ENGLISH and McCORMICK, JJ., concur.

       A repository for bowling balls which were owned by the bowling alley and were for the use of patrons.

       Plaintiff testified that “thumbing” is a characteristic of bowlers to determine whether or not the finger holes fit; that it involves putting the thumb in the thumb hole and putting the fingers in the finger holes to see if the ball fits the particular hand.


text:
    In the Matter of the Estate of Raymond C. Stang, Deceased. Marilyn Latek, Petitioner-Appellee, v. Fred D. Stang, Respondent-Appellant.
    Gen. No. 50,872.
    First District, Fourth Division.
    April 7, 1966.

      William B. Smith, of Chicago, for respondent-appellant.
    Anthony S. Bruno, of Chicago (Paul Broccolo, of counsel) , for petitioner-appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Petitioner, in a citation proceeding in the administration of the estate of Raymond Stang, deceased, sought to have two savings accounts and sixty-three shares of stock in General Motors Corporation included in the estate of the decedent. The court granted the petition only as to the shares of stock and entered an order that they be included in the decedent’s estate, from which respondent appeals. No cross-appeal was taken by the petitioner with regard to the savings accounts.

Decedent, a bachelor who lived alone, died in 1964 and is survived by various relatives including a brother Fred Stang (respondent) and a niece Marilyn Latek (petitioner) . Upon the death of the decedent there was found in a safe deposit box which was held in joint tenancy by the decedent and Fred Stang a total of sixty-three shares of stock in General Motors Corporation which were held in joint tenancy. In addition the box contained a purported holographic will drawn in 1960 which was signed by the decedent, addressed “To whom it may concern” and which provided in relevant part as follows:

As for my money, cash, Gen Motors shares, Life insurance, security government bonds and all insurances
I want distributed the following ways.

The “will” contained various distributive provisions but there was no further reference to shares of stock except the following statement:

This includes all my money, insurance, stocks, bonds, etc.

Fred Stang testified at the trial but was not asked any questions relating to the origin of the joint tenant ownership of the stock in question. The trial court held that, while the aforesaid document may be ineffectual as a will, it was sufficient evidence to establish that the decedent did not possess the requisite donative intent at the time of the origin of the joint tenancy to create a joint tenancy with all of the legal consequences thereof.

A presumption of a gift to the surviving joint tenant arises with the creation of a joint tenancy and can be overcome only by clear and convincing evidence of a lack of donative intent. Murgic v. Granite City Trust & Sav. Bank, 31 Ill2d 587, 202 NE2d 470. In that case the Supreme Court reversed the Appellate Court which had held that while there was a presumption of donative intent with regard to property held in joint tenancy, if the estate introduced evidence which tended to rebut the existence of donative intent the burden would then revert to the survivor to prove by clear and convincing evidence that a gift was intended. The Supreme Court ruled that the burden does not revert to the survivor unless the evidence of the claimant is clear and convincing, stating at pages 590, 591 that:

The legislative policy to treat the joint account as a useful technique for transferring intangibles dictates that the estate or other person claiming against the survivor should have the burden of disproving intent on the part of the decedent, and the degree of proof required to void the presumption should be clear and convincing. This would add certainty to the law and at the same time protect a depositor’s estate where the joint account was created without donative intent .... To hold that a lesser degree is required or that the burden shifted would tend to make every joint tenancy account suspect and would promote instability rather than stability of ownership. . . .
We hold that an instrument creating a joint account under the statutes presumably speaks the whole truth; and, in order to go behind the terms of the agreement, the one claiming adversely thereto has the burden of establishing by clear and convincing evidence that a gift was not intended. This burden does not shift to the party claiming under the agreement.

Moreover, evidence of the lack of donative intention must focus upon or relate back to the time of the creation of the joint tenancy. Murgic v. Granite City Trust and Savings Bank, supra. Therefore, if the decedent possessed donative intent at the time of the creation of the joint tenancy a subsequent decision that he did not want his share to pass upon death to the surviving joint tenant is not, in itself, sufficient to sever the joint tenancy relationship. In the instant case, while the decedent referred specifically to the General Motors stock in his purported will, there is no indication as to whether he lacked the donative intent at the time of the creation of the joint tenancy or whether he possessed the donative intent at that time and merely changed his mind without performing any act to sever the joint tenancy relationship. It is significant to note that even though the burden was upon the petitioner to rebut the presumption of donative intent by clear and convincing evidence she did not question Fred Stang, who was sworn as a witness and who is the one person who presumably could have shed some light on the circumstances under which the joint tenancy was established.

We find that the purported will of the decedent is not, in and of itself, clear and convincing evidence which rebuts the presumption of donative intent on the part of the decedent with respect to the sixty-three shares of General Motors stock. Therefore the order of the trial court that these shares be included in the estate of the decedent is reversed.

Reversed.

ENGLISH and McCORMICK, JJ., concur.

       It is admitted that the will was not executed in accordance with the statutory requisites and therefore was never offered for probate.


author: MR. JUSTICE ENGLISH

text:
    Marie Panepinto, Plaintiff-Appellant, v. Morrison Hotel, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 49,448.
    First District, Fourth Division.
    April 22, 1966.
    Rehearing denied June 8, 1966.

      Westbrook, Jacobson and Brandvik, of Chicago (James A. Brandvik and Lowell H. Jacobson, of counsel), for appellant.
    Menk & Johnson, of Chicago (John Cadwalader Menk, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

The jury in this personal injury case returned a verdict for $100,000 in favor of plaintiff. Defendant’s post-trial motion for judgment notwithstanding the verdict was denied. The court also denied defendant’s motion for a new trial, but on the condition that plaintiff accept a remittitur of $65,000. When plaintiff refused to do this, a new trial was granted as to both liability and damages. We allowed plaintiff to file an appeal from that interlocutory order.

We shall first relate the facts as presented through the testimony of plaintiff and her witnesses.

On September 27, 1957, plaintiff and her husband were attending a Moose Lodge convention at the Morrison Hotel where they had engaged a private room. Plaintiff was 33 years old at that time and the mother of three children. At about 7:30 p. m. on the second day of her stay at the hotel plaintiff was entering her room when the transom over the door fell down and struck her on the back of the head, neck and shoulders. In the course of 45 minutes she changed to formal clothes, lay down for a while, and then went to a lower floor where the evening meeting was being held. In talking to some of the girls there she found she had a speech difficulty, so one of them called the house physician, a Dr. Collins. He arrived about 9:00 p. m., at which time plaintiff was participating in the ceremony on the stage. After some delay on this account, plaintiff and Dr. Collins went to plaintiff’s room where he examined her for about 25 minutes. His findings were negative except that she was speaking in a very low voice and she had a small bump on the back of her head. He testified that “the bump was a contusion. You couldn’t call it a concussion.” He prescribed empirin and codeine for headache and suggested that X-rays be taken.

Plaintiff did not have X-rays taken but returned to the stage for the rest of the ceremony, after which she and her husband walked two blocks to the Sherman House where drinks and refreshments were served. At about 11:00 p. m. they started to return to the Morrison but plaintiff found that her legs were not functioning well, so they took a cab. Plaintiff is 5' 3" tall and “for quite a long time” had weighed in the upper 200s.

Reaching the Morrison at about 11:30 p. m. plaintiff went to their room with her husband’s assistance. Dr. Collins was called again and he came to the room around midnight. He again advised X-rays and recommended that plaintiff go to the nearest hospital (Henrotin) for which he would make telephone arrangements. Plaintiff and her husband went to Henrotin Hospital where, after a considerable wait at the emergency room, plaintiff found no arrangements had been made for her. The nurse taking her case history commented that they “had a lot of these drunk cases.” Plaintiff became so incensed at this remark that she left, because she had had nothing to drink. She and her husband arrived home in Franklin Park at 3:00 a. m. They called the Elmwood Park Medical Center in the expectation that there would be a doctor there at that hour. They talked to a Dr. Mansour. According to plaintiff, he visited her at her home the next morning, and on his advice she entered the Walther Memorial Hospital that day (September 28) and stayed for 14 days under Dr. Mansour’s care. She then concluded that he was not doing anything for her but giving her tranquilizers which were not helping her condition (pain in the neck and shoulders; difficulty in speaking and in moving her legs), so she left the hospital and went home. Dr. Mansour sent a bill which was never paid.

Parenthetically, Dr. Mansour appeared as a witness for plaintiff. After refreshing his recollection by looking at the hospital records, he testified that he had seen plaintiff for the first time on September 30, 1957 (not September 28); that she had then entered the hospital and stayed there under his care for eight days (not fourteen).

When plaintiff left Walther Memorial Hospital in October, 1957, on discharge by Dr. Mansour, she made arrangements to enter the Cook County Hospital, but she did not go there. Instead, her husband called the telephone company operator and asked to be referred to a “nerve doctor.” He was given the name of Dr. Albert Olson, a chiropractor. As related by plaintiff, Dr. Olson gave her manipulation treatments daily for four months and “maybe three times a week” thereafter until August 7,1960, when plaintiff “passed out” from a “heart attack” and Dr. Olson called in Dr. Frank Hoffman, also a chiropractor. Dr. Olson then “dropped out” and Dr. Hoffman took over the case. Dr. Olson is no longer practicing, his whereabouts are unknown to plaintiff, and he did not testify. Plaintiff never received a bill from Dr. Olson, but she figured she owed him $10 a visit.

Dr. Hoffman continued with daily chiropractic manipulation treatments for about two weeks, after which plaintiff felt better, and Dr. Hoffman was subsequently called only when she had pain. These visits occurred more than 130 times during the ensuing four months, often twice or three times in a single day. Dr. Hoffman’s treatments, at $10 per visit, continued down, to the time of trial, though specific information as to many of them was unavailable because some of his records had been destroyed by a fire in 1963. Plaintiff testified that Dr. Hoffman had been giving her tranquilizers and sleeping pills because of the pain. Dr. Hoffman said, however, that at no time had he prescribed any drugs for her— only vitamins and food supplements. He also testified that he had given her a bulk formula and special diets for overweight. Plaintiff denied that he had instructed her as to loss of weight.

Returning to plaintiff’s own testimony, we find negligible evidence of her good health prior to the accident in Question. If damages are to be supported, her physical and emotional condition prior to the accident must, of course, be compared favorably to her postaccident condition. In more than 100 pages of plaintiff’s testimony all we find on this score is: that for about four years prior to this accident she had been active with her husband in affairs of the River Grove Moose Lodge; that she had attended meetings weekly and ritual practice monthly; that she and her husband went out visiting; that she had done all the housework; that she had not had any pain in the neck, head or shoulders prior to September 28, 1957; that she had “felt good.”

Alma Strain, reception chairman for the Women’s Moose Convention in 1957, testified on behalf of plaintiff that she had seen plaintiff at the opening of the Moose rituals in the afternoon of September 28 and that “she was perfectly all right at that time.” Mrs. Strain had seen plaintiff only once before in her life.

Conspicuous by its absence is any substantial evidence to support plaintiff’s claim to good health prior to the occasion at the hotel. There was no testimony from any of the ladies who had been active with her in Moose affairs; nor from friends or neighbors in the community where she lived; nor from any of the many doctors who had cared for her prior to this accident, except Dr. Camero (a defense witness) whose testimony, set forth below, indicates that he found her condition in 1954 to be not greatly different from that existing at the time of the trial. Most significant, perhaps, is the lack of corroborative evidence concerning plaintiff’s claimed ability to tend to all the household chores and care for her family prior to the accident. Her children (who were living with plaintiff in her home at the time of the trial), did not testify in support of this claim. Nor did plaintiff call her husband to testify on this score, nor as an occurrence witness (which he was) despite his presence in court throughout the trial. In fact, he was a coplaintiff in the suit until he was dismissed on his own motion during the presentation of plaintiff’s case.

Plaintiff also testified that she had been in one other accident, involving an automobile, in about 1946 or 1947, and that she had then sustained no injury but merely a bump on the stomach. She said that on that occasion she had gone to the hospital, but only for a checkup, and had not stayed overnight. An Elmhurst Hospital record for September 1954, however, indicated that in giving her medical history at that time plaintiff had related a hospital stay of ten days as a result of an automobile accident six years before. This latter evidence was introduced by defendant through Dr. Ciríaco Camero, who had attended plaintiff in the Elmhurst Hospital in 1954, she having gone there because of itching which had developed in the course of weight-reducing treatments. Dr. Camero, who was not a dermatologist, testified that “at the hospital all the tests were taken that are normally taken and all the tests were negative.” All symptoms were also negative except obesity (268 pounds). His diagnosis was “psycho-physiological nervous system reaction.” He said that the “itchiness was caused by the nervous system rather than some organic disease,” and that “you might say she had a case of nerves.”

Plaintiff testified that when hospitalized in Cook County Hospital for childbirth in 1942, she had left the hospital against the advice of her physician (because, she said, her husband was not permitted to visit her there). When in the Mother Cabrini Hospital, again for childbirth, during Easter week of 1944, she again left against her doctor’s advice (because, she said, being a Catholic hospital, they had nothing to eat but fish and she couldn’t stand the smell). In 1945 she left the Little Company of Mary Hospital against the advice of her doctor. The record also discloses, in the testimony of plaintiff’s witness Dr. White, that when she was under his care at Loretto Hospital in 1960 she left the hospital before he wanted her to. Plaintiff denied this.

As to her postaccident condition, plaintiff testified that she was unable to speak above a whisper. She said that her voice “came back slowly at first,” and that this difficulty continued until about nine months before trial. For some time after the accident plaintiff also experienced difficulty in moving her legs. Further, she testified that she suffered discomfort and pain in her shoulders, neck and head which continued to the time of trial. For this condition she was still taking tranquilizers, sleeping pills and pain pills. The relief afforded by the manipulations of her chiropractors had, she said, been only temporary and she was too nervous to leave the house; she had been out to a dance only once; her sons had gone away to military school for a while; her husband had done the housework; about all she had done was lie on the couch and watch television.

In August of 1960, when plaintiff had lost consciousness and Dr. Olson had brought Dr. Hoffman into the case, the family doctor, Dr. Gregory White, a licensed M.D. physician and surgeon, was also called in, though the record is not clear as to the date. He caused her to be hospitalized in Loretto Hospital for X-rays and other tests. He did so because she was paler than usual and had suffered a weight loss of some 30 pounds. He was apprehensive that the cause of these conditions might be some serious organic disease. She was given an electrocardiogram, X-rays of the chest, stomach and colon, Kahn test, blood count and urinalysis. It is significant to note that no X-rays were taken of her neck or spine, to the best of Dr. White’s recollection, yet plaintiff testified that she had gone to the hospital at that time “in connection with being treated for the injury involved in this case.”

Dr. White said that he had first seen plaintiff in late 1958 or early 1959. (From the whole record it seems more likely that it was in late 1960. In any event, it was more than a year after the accident in question.) Her complaints related to him were pain in the head and neck, loss of voice, shortness of breath, weakness and fatigue, “and she traced this back to an injury which had taken place some time previously.” On examination he found her to be obese and mildly anemic. Other physical findings were negative so far as major pathology was concerned. “There was equivocal tenderness in the muscles of the neck and upper back.” He prescribed medication for relief of pain and instructed her in the use of a neck traction apparatus which she had already been using for some time.

In the course of the next five years, to a time three weeks before the trial, Dr. White saw plaintiff about a dozen times. He testified that he gave her “a number of prescriptions for medication to relieve pain, to help her sleep. There were some tranquilizers prescribed and some medication for colds and minor infections, things of that sort.”

In a report to plaintiff’s attorney in April 1961, Dr. White described her objective symptoms as obesity, pallor and weight loss; subjectively, fatigue, weakness and shortness of breath. His diagnosis was (1) obesity, (2) hypochromic anemia due to iron deficiency or blood loss, and (3) neurasthenia. He testified that the lay term that would come close to neurasthenia would be “nervous exhaustion.”

Dr. White further testified that when he examined plaintiff three weeks before trial (September 1963) he found pallor and mild obesity; otherwise "the results were essentially negative.” Her subjective symptoms at that time were "headache and shortness of breath and considerable apprehensiveness.”

Plaintiff sought by this witness to establish a causal connection between the accident in the hotel and the subjective symptoms about which plaintiff complained to Dr. White. Dr. White kept no records of his treatment of plaintiff, and the only evidence of her prior medical history known to Dr. White was the statement quoted above to the effect that she attributed her complaints to an injury which had taken place some time previously. It does not appear from the record in this case that he knew anything about the nature of the injury, the hospital tests and X-rays which had been made, her subsequent treatment by the chiropractors, her physical and emotional condition during the periods before or after the accident in question, the opinions of the many doctors who had examined or treated plaintiff, her numerous hospitalizations, etc. In fact, it does not appear that the injury to which plaintiff “traced” her troubles was necessarily the one that she sustained in the accident at the hotel. For all that does appear, it could have been the injury she sustained in the automobile accident some years before that. It is difficult to imagine a weaker basis than this for the introduction of expert medical testimony for the jury’s consideration on so important a point. This is especially true when it is recalled that Dr. White had been unable to make any objective findings in support of plaintiff’s subjective complaints.

Dr. White was asked, nevertheless, for his opinion as to whether plaintiff’s subjective complaints “might or could have been caused by this accident she told you about.” Over objection he was permitted to reply, “Generally, I would say that her subjective complaints could have been related to her previous accident.”

The objection which had been made was that there was a total lack of proper foundation for such testimony. After a fairly lengthy colloquy between court and counsel, the objection was overruled and the following is recorded:

The Court: It is my understanding a medical Doctor is entitled to state his opinion based on might or could or would, whatever the words are.
Mr. Menk [attorney for defendant]: Well, there is no foundation in the evidence at this point, is my point, your Honor.
The Court: Well, assume there is for the sake of this case.

We consider that this ruling constituted serious error.

Dr. Chafick Mansour, a specialist in surgery, testified on behalf of plaintiff. He told about plaintiff’s hospitalization in September, 1957 at Walther Memorial under his care (as set forth above). He noted her subjective symptoms (inability to raise her legs or speak above a whisper) and considered them “bizarre” in view of the fact that after standard neurological examination and tests he could detect no abnormality. Dr. Mansour testified further that where there is permanent paralysis, nerve disturbance or damage will be present; but that when neurological tests are negative, then subjective symptoms such as plaintiff’s are due to emotional involvement or hysteria. For that reason Dr. Mansour did not examine plaintiff’s larynx, as he considered her voice difficulty part of that pattern. His diagnosis was that plaintiff had received a concussion (contrary to the opinion of Dr. Collins), muscle spasm in the neck and shoulders from a blow on the head, and, in addition, plaintiff had a conversion type hysteria or emotional involvement. He therefore concluded that the case was out of his field, and instructed plaintiff that she should consult a doctor who was a neuropsychiatric specialist.

On cross-examination Dr. Mansour testified that trauma is a “possible” cause of conversion hysteria, but that there are “probably” other causes, the number or variety of which he could not state with certainty. When asked by the court to define the term, “conversion hysteria,” the witness declined, saying that it was outside his specialty and that he could give only “sort of a hodgepodge of it.” He then stated that this diagnosis was not his own, but that of the attending neurologist, a Dr. Zivin. (Dr. Zivin did not testify.) He said further, “I am not really qualified in my own field to make this diagnosis.”

At this turn in the testimony of Dr. Mansour, defense counsel made a timely motion that the evidence concerning conversion hysteria be stricken. The motion should have been allowed, and it was error not to do so. In so saying, we are not unmindful of this court’s opinion in Hickey v. Chicago Transit Authority, 52 Ill App2d 132, 139, 201 NE2d 742, but believe the circumstances to be distinguishable. Plaintiff argues that defendant may not urge this point on appeal because it was not specifically raised in defendant’s post-trial motion, citing Ill Rev Stats 1963, c 110, § 68.1, and Lawler v. Pepper Const. Co., 33 Ill App2d 188, 195, 178 NE2d 678. This argument misses the mark because defendant is not the appellant here.

Moreover, the inclusion of Dr. Mansour’s diagnosis in plaintiff’s case which went to the jury presents another important question from a different point of view. It must be remembered that medical evidence of this character is admissible only because the witness is qualified to render such an opinion by virtue of special knowledge and experience not shared by persons generally. Consequently, when, as here, the expert candidly forswears expertise in the area of concern, his testimony must necessarily carry negligible probative value. In considering the weight of the evidence it may, for all intents and purposes, be ignored.

Plaintiff never saw Dr. Mansour again and did not follow his advice to consult a psychiatrist. It was then that she turned to chiropractic. Three or four years later Dr. Hoffman, the second chiropractor, also thought plaintiff was “emotionally disturbed” and had a Dr. Anderson, a psychiatrist, come to see her. As stated by Dr. Hoffman: “The symptoms that caused me to believe that there may be an emotional problem was not being able to relieve the pain, and also due to the fact that she kept getting the dizziness and discomfort and there had been some damage or something to the nerves that I did not know.” Dr. Anderson made arrangements for plaintiff to go to the Hinsdale Sanitarium and Dr. Hoffman took her there. She was examined by a psychiatrist (not Dr. Anderson), but did not stay overnight. Dr. Hoffman testified that he asked that psychiatrist for a report but never received it, so he “just continued along with these manipulations.”

As mentioned above, Dr. Hoffman’s treatments were started in August of 1960 and continued to the time of trial. (“My treatment hasn’t varied since the first treatment.”) During most of this time plaintiff was also seeing Dr. White. Dr. Hoffman knew of Dr. White’s visits but there was minimal consultation between the two men. Plaintiff’s subjective complaints, as related by Dr. Hoffman, were headaches, inability to walk, difficulty in breathing, and inability to control her voice — “it would fade every now and then.” He found a tightness or spastic condition in her neck and upper spine. This he sought to relieve by his treatments which were for the purpose of reducing “nerve pressure.” He took X-rays of plaintiff at his office, but they were destroyed in a fire. Dr. Hoffman also testified that he delivered X-rays he had taken to Dr. White. He also gave her a bulk formula and diet for a weight-reducing program, and some general formula for improvement of a low blood count.

Dr. Hoffman testified to no diagnosis other than what is implicit in the recital above. He did, however, testify that plaintiff had told him she had been hit on the head by a transom board at a hotel and “that she had pain and discomfort and all ever since that time.” He was asked whether the conditions he found in his examinations of plaintiff might or could have been caused by that accident. Over objection he was permitted to answer, and stated: “I would say in my opinion such an injury of this type could be caused by an accident as described to me.” This testimony, strongly relied upon by plaintiff to establish causation between the injury at the hotel in 1957 and plaintiff’s condition of ill-being in 1963, in fact, does nothing of the kind. Dr. Hoffman said that the injury could have been caused by the accident, and gave no testimony whatsoever that the injury thus sustained by accident was the cause of plaintiff’s complaints five years later.

Further, as in the case of Dr. White’s testimony, there was a distinct lack of essential foundation necessary to establish the qualification of the witness to give his opinion as to causation. Particularly, there was no showing that he knew anything about plaintiff’s condition and medical history before the accident, or during the three-year period after the accident — absolute essentials to a proper opinion concerning the cause of her later condition (if he were to have given such an opinion, which he actually did not). An appropriate and timely objection was made to this testimony and was erroneously overruled.

This was the sum of the medical evidence presented on plaintiff’s behalf. The record discloses that during the six-year period between the accident and the trial she had consulted at least nine or ten doctors of one kind or another (not including Dr. Tinsley who examined her at the behest of defendant) concerning the injury to her head and neck; that within the first hour after the accident plaintiff had been advised to have X-rays taken; that X-rays were taken by at least three of the doctors (though Dr. White did not bother to take any of her head, neck or back). Yet no X-rays of any kind were produced at the trial, and only Dr. Hoffman gave an explanation as to what had happened to those which he took.

Plaintiff testified that she spent $2,438.41 for drugs, collectively, and approximately $850 for hospital bills, nursing care, Dr. Hoffman and X-rays. Dr. Hoffman said he was still owed $1,480. Dr. Mansour’s bill for $225 remained unpaid. There was no testimony that either Dr. Olson or Dr. White ever sent a bill.

Dr. Collins was called on behalf of defendant and the substance of his testimony is set forth above.

Dr. Milton Tinsley, a neurosurgeon, examined plaintiff on behalf of defendant three months after the accident. He testified that plaintiff answered the door at her home, greeted him in a whisper, and walked to the bedroom for the examination. He said her primary complaint was an inability to speak above a whisper. She told him that the pain in her neck had been improved.

Dr. Tinsley found plaintiff’s blood pressure to be 220/120 which he considered rather high. He then gave her a general neurological examination, including a battery of tests. In this regard he testified:

All of these tests were performed in order to determine the function of the brain, spinal cord and peripheral nerves. The result of the tests was that I was unable to find any abnormality in the nerves of the brain or spinal cord or peripheral. I did not examine the larynx. ... I did not examine the vocal cords, but if there is a paralysis of vocal cords, then there is either an arrestive speech, inability to speak at all or a hoarseness.
One speaks in a hoarse voice. Whispering is not a function of the vocal cords or of the muscles of the pharynx but a function of the diaphragm, so to speak. As a matter of fact in my medical knowledge and from my medical knowledge I would say that whispering is a much more strenuous effort of the vocal cords than ordinary speaking. In other words, you are speaking but exercising this control over it to keep the volume down, and that control comes from the diaphragm and the lower portion of the throat musculature. If both vocal cords are paralyzed, you cannot speak.

And on cross-examination he said:

Along with neurological difficulties a patient would develop a hoarseness, if there is nerve damage. In my opinion, she was whispering and did not have a hoarseness to the voice.

We have set forth the evidence at so great length because the determinative issue presented here requires us to decide whether or not, on due consideration of the facts in the case, the trial court clearly abused its discretion in ordering a new trial. Many cases have established the duties of the trial and reviewing courts in this regard and we will not restate all the principles involved. See Hulke v. International Mfg. Co., 14 Ill App2d 5, 46, 142 NE2d 717; Morella v. Melrose Park Cab Co., 65 Ill App2d 175, 181, 212 NE2d 106; and Thomas v. Chicago Transit Authority, 16 Ill App2d 470, 476, 148 NE2d 833. Because of our view of this record we need not decide the specific rule to be followed by a trial judge in granting a new trial — whether he should do so if, in his opinion, the verdict is not sustained by a preponderance of the evidence (which we consider the better rule), or whether he should do so only if the verdict is against the manifest weight of the evidence. See Read v. Cummings, 324 Ill App 607, 609, 610, 59 NE2d 325. We believe the evidence on the issue of damages was so weak in the instant case (in relation to the size of the verdict) that the granting of a new trial was called for under either guide.

It is true, of course, that the discretion to be exercised is not unlimited, and is to be controlled by reason. Kahn v. James Burton Co., 5 Ill2d 614, 623, 126 NE2d 836. When, as in the case at bar, however, the verdict could well have been influenced by incompetent evidence erroneously admitted, or by erroneous instructions; or is clearly unwarranted by the competent damages evidence; or indicates passion or prejudice; reasonable discretion imposes a duty upon the trial judge to grant a new trial. In this circumstance even a remittitur would not have cured such a verdict. Stephans v. Chicago Transit Authority, 28 Ill App2d 229, 232, 233, 171 NE2d 229.

We do not know what reasons prompted the trial judge to order a new trial in this case. The obvious and probable ones we have described in some detail. In addition, and perhaps just as likely a basis for the excessiveness of the verdict, was the erroneous instruction which the jury received on the law of damages. Plaintiff contends that we may not consider errors in instructions because neither plaintiff’s abstract nor defendant’s additional abstract includes the conference on instructions to indicate that defendant had made timely objection to the damages instructions. Therefore, plaintiff argues, any point concerning instructions has been waived, citing Vasic v. Chicago Transit Authority, 33 Ill App2d 11, 180 NE2d 347.

We do not consider ourselves so limited in reviewing the issues of this case. Defendant is not seeking reversal of a judgment on the ground of erroneous instructions. It is simply seeking affirmance of the new trial order, and for that purpose we are free to examine the record as we might see fit. Richman Chemical Co. v. Lowenthal, 16 Ill App2d 568, 571, 149 NE2d 351. (Incidentally, the record does show timely objections by defendant which were also specifically set forth in its post-trial motion.) Furthermore, from an entirely different viewpoint, we believe we may properly study the instructions to see if they contain any explanation for the inordinate size of the verdict. We think they do afford such explanation.

By plaintiff’s given instruction No. 10 the jury was told about the elements of damage for which they might compensate plaintiff if they found defendant liable. Included among those elements were: the “aggravation of any pre-existing ailment or condition,” the “pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injury,” and the “present cash value of the reasonable expenses of medical care, treatment and services reasonably certain to be received in the future.”

Plaintiff’s given instruction No. 11 told the jury that if they found plaintiff entitled to “damages arising in the future because of injuries or because of future medical

expenses, [they] must determine the amount of these damages which will arise in the future.” And further: “If these damages are of a continuing nature, you may consider how long they will continue. If they are permanent in nature then in computing these damages you may consider how long the plaintiff is likely to live.”

The jury should not have been permitted to speculate on these matters since there was, as we have seen, no evidentiary basis for them in the record. Lauth v. Chicago Union Traction Co., 244 Ill 244, 251, 252, 91 NE 431; Meltzer v. Shklowsky, 321 Ill App 400, 403, 405, 53 NE2d 272; Gaydos v. Peterson, 300 Ill App2d 219, 226, 227, 20 NE2d 837.

The answer of plaintiff that these instructions were taken verbatim from IPI (Nos. 30.01-30.06 and 34.-01) is no answer at all. The appropriateness of any IPI instruction must be determined by its proper relationship to the evidence in the case on trial. In IPI these instructions carry the caveat that a phrase describing a particular element of damages is to be used only “when the evidence justifies its use,” or warn that “there must be evidence that such pain and suffering is reasonably certain to occur in the future,” etc. It was error not to have heeded this warning. It is our belief that the giving of these instructions may well have been importantly responsible for the jury’s excessive verdict, since they opened up for the jury’s consideration a field in which they might estimate damages many times the amount of those proved by the evidence.

A major part of plaintiff’s briefs in this court is devoted to arguing that many errors and improprieties during the trial inured to the benefit of defendant. For example, points are made that defense counsel in numerous ways brought improper matters to the attention of the jury during the hearing of evidence and in argument; that plaintiff’s neurologist Dr. Israel Zivin and two of plaintiff’s children were erroneously prevented from testifying on the ground that their names had not been included in the answer to defendant’s interrogatories; that Dr. Camero should not have been permitted to testify for defendant; and so on.

These assignments of error are all irrelevant, and we make no decision in regard to them, for plaintiff is not appealing from an adverse verdict. Quite the contrary. It is possible that the children and Dr. Zivin might have been able to furnish some of the badly needed evidence necessary to support the verdict, but on the present record, there having been no offer of proof as to what their testimony would have been, it serves no purpose to indulge in such speculation. Actions of the court and defendant’s attorney, alleged to have been prejudicial to plaintiff’s case, are equally irrelevant.

Plaintiff also contends that the court erred in not conducting a hearing on plaintiff’s post-trial motion. This document, which related primarily to the issue of damages, was filed after entry of the order granting the new trial. The trial judge stated that he would permit the motion to be filed but that a hearing thereon was “not in accord with statutory intendments.” We agree. As a matter of fact, we believe that the statute did not give plaintiff any right to file such a post-trial motion. Section 68.1(3), on which plaintiff relies, provides: “A party against whom judgment is entered pursuant to post-trial motion shall have like time (30 days) after the entry of the judgment within which to file a post-trial motion.” Ill Rev Stats 1963, c 110, § 68.1 (3). There was no basis for the filing of a post-trial motion by plaintiff in this case since there was no judgment entered against her.

We turn, then, to the issue of liability. The testimony presented on behalf of plaintiff, as it relates to this question, has been set forth in the early part of this opinion. We believe that it established a prima facie case of liability.

While defendant sought to point out inconsistencies in plaintiff’s testimony as to the occurrence itself, we deem it essentially uncontroverted that the transom over the door to plaintiff’s room became dislodged, somehow or other, and, in falling, struck plaintiff on the head. The testimony of defendant’s witness Dr. Collins corroborated rather than controverted plaintiff’s story, to the extent that he found a bump on plaintiff’s head which she told him had been caused by the fall of the transom, and for which he prescribed medicine for the relief of headache. The two other medical witnesses presented by defendant testified on the issue of damages only.

Frank Hurley, Security Officer for the hotel, testified that he went to plaintiff’s room upon call by his chief supervisor, and there he saw plaintiff and her husband. The transom was lying on the floor against the wall. They told him that the transom had fallen and struck plaintiff on the head. He asked them to let him call a doctor, but they refused. Hurley did not examine the transom or the door. Nor did he seek to determine the nature or extent of plaintiff’s injury. He merely made out his report on the basis of what she told him.

Leslie Forsberg, Assistant Manager and Superintendent of Service of the hotel, was called by Hurley and proceeded to plaintiff’s room. No one was there. He found the wooden transom leaning against the wall, and saw that “[i]t was empty above the door where the transom would be.” Forsberg located plaintiff in the ballroom and called Dr. Collins, although plaintiff said she didn’t want to see a doctor. He did not examine the transom, its screws or bolts, “or anything like that,” because it would have been the responsibility of Hurley to make such an investigation. The maintenance department took care of putting the transom back. Forsberg did not further concern himself with the incident.

We believe that this evidence wholly fails to counteract the proof of liability as established by plaintiff’s testimony. Defendant argues further, however, in reliance upon Christian v. New York Cent. R. Co., 28 Ill App2d 57, 68, 107 NE2d 183 that comments by the judge throughout the trial and questions put by him to some of the witnesses were so prejudicial to defendant’s cause as to create a climate inimical to a fair trial. We do not agree that the acts complained of were so serious a matter under all the circumstances of this case.

It is our conclusion that the trial court abused its discretion in granting a new trial on the issue of liability.

The order of the Circuit Court directing a new trial is reversed insofar as it relates to the issue of liability and affirmed insofar as it relates to the issue of damages, and the cause is remanded for a new trial on the question of damages only.

Affirmed in part, reversed in part, and remanded.

DRUCKER, P. J. and McCORMICK, J., concur.

       In her attorney’s opening statement he had described her as an “active, normal, happy woman” before this accident.

       Plaintiff’s husband sat behind plaintiff in front of the jury and, after she testified, was massaging her neck during the trial until the court put a stop to it.

       Plaintiff testified that the chiropractor diagnosed her seizure as a heart attack, hut that Dr. White told her she had had a heart palpitation.

       Dr. White said that he usually kept record cards for his patients but that he had never made one up for plaintiff, even though he knew in 1961 that the case was in litigation.

       This latter conclusion was not so very different from the diagnosis Dr. Camero had made three years before this accident.

       Dr. Hoffman testified that plaintiff had paid him $222 and still owed $1,479.80.

       Dr. Hoffman testified: “Dr. White said he was giving her something for relief of pain and that’s all he told me. I didn’t talk to him about any other type of treatment. I got no report from him; I didn’t ask for any.”

       Objection was also made as to the form of the question (not hypothetical). We do not consider it necessary under the circumstances to deal with this point.

       Dr. Collins (house physician at the hotel) made that recommendation (including X-rays of the skull). He testified: “It is difficult in an examination like this to make a thorough determination without X-rays, and that is the purpose for which I wanted X-rays taken.”

       We note, in passing, that the trial court refused to instruct the jury on plaintiff’s theory of res ipsa loquitur. We fail to see why that doctrine was not applicable to this case. See McCleod v. Nel-Co Corp., 350 Ill App 216, 112 NE2d 501; also, O’Rourke v. Marshall Field & Co., 307 Ill 197, 200, 138 NE 625; and Feldman v. Chicago Rys. Co., 289 Ill 25, 34-36, 124 NE 334.


text:
    Bresler Ice Cream Company, an Illinois Corporation, Plaintiff-Appellee, v. The Millionaires Club, Inc., et al., Defendants-Appellants.
    Gen. No. 50,810.
    First District, Fourth Division.
    April 22, 1966.
    Jurco, Damisch & Sinson, of Chicago (Stephen Jurco and James R Mitchell, of counsel), for appellants.
    Charles C. Kirshbaum, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from an order granting judgment on the pleadings in favor of the plaintiff.

On November 6, 1964, plaintiff filed a complaint for breach of contract and alleged (1) that on August 21, 1963, defendant entered into a contract whereby it agreed to purchase all of its requirements of ice cream and ice cream products from the plaintiff for a period of three years; (2) that on January 2, 1964, defendant discontinued the purchase of its requirements of ice cream in breach of the aforesaid contract; and (3) that plaintiff is entitled to liquidated damages under the contract. In its answer defendant admitted the existence of the contract but alleged that it was unenforceable and asserted several affirmative defenses in support of that allegation. The first such defense was that plaintiff fraudulently induced the defendant to enter into the contract, in that plaintiff loaned money to the defendant on or about the date of the agreement and falsely and fraudulently represented that it intended to keep the loan open and credit thereunder available for the duration of the contract; that plaintiff knew the representation to be false at the time it was made and intended that defendant act thereupon; and that defendant relied upon that representation but the loan was called and paid, to its detriment, within one month after the date of the requirements contract. The remaining affirmative defenses alleged that the terms of the contract are violative of various antitrust laws.

Plaintiff filed a motion for judgment on the pleadings, which was granted. Prior thereto plaintiff filed no motions directed to the sufficiency of the aforesaid answers nor did it file a reply to the affirmative defenses set forth therein.

Fraud in the inducement renders a contract voidable at the option of the injured party. Roda v. Berko, 401 Ill 335, 81 NE2d 912. Any false representation of a material fact made with the knowledge of its falsity and intent that it shall be acted upon, and which is acted upon to the injury of the other contracting party, constitutes such fraud. Wilkinson v. Appelton, 28 Ill2d 184, 190 NE2d 727. Defendant’s verified answer shows that the contract and the loan agreement were so inextricably bound together as to be but parts of a single transaction, and properly sets forth the allegation that defendant was fraudulently induced to enter into the requirements contract by plaintiff’s false representation that the loan would remain open for the duration of the three years.

While any party may seasonably move for judgment on the pleadings (Ill Rev Stats 1963, c 110, § 45(5)) such judgment in favor of the plaintiff is improperly granted where the answer to a complaint sets forth any legal defense to the action. Thillens, Inc. v. Hodge, 2 Ill2d 45, 116 NE2d 886. Since defendant’s answer properly sets forth the legal defense of fraud in the inducement, the judgment of the trial court is reversed and the cause remanded with directions to overrule the plaintiff’s motion for judgment on the pleadings and to take such other action as is appropriate to resolve the issues presented by the pleadings.

In view of our holding, it is unnecessary to consider the other affirmative defenses and we have not done so.

Reversed and remanded with directions.

ENGLISH and McCORMICK, JJ„ concur.


text:
    Sylvia Chapman, Plaintiff-Appellant, v. Oliver J. Salvador, et al., Defendants. County Bank & Trust Co., as Trustee Under Trust No. 1127, Intervenor Below-Appellee.
    Gen. No. 50,879.
    First District, Fourth Division.
    April 22, 1966.
    Bernard Arkules, of Highland Park, for appellant.
    McCoy, Ming & Black, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

A complaint for partition and other relief was filed in January, 1965. Thereafter a number of orders and decrees were entered, defaulting some defendants, determining the lien rights of an intervenor, decreeing partition of the premises (June 14), approving a commissioner’s report, directing a sale (June 25), determining priorities in the proceeds, and, on July 22, approving a master’s report of sale, etc. On July 26 County Bank & Trust Co., as trustee under a land trust (which had apparently acquired the interest of a defaulted defendant), filed a verified petition on the basis of which the sale and decree of sale were vacated and set aside by an order entered on August 4. By the same order the bank was also permitted to intervene and to plead to the complaint and to the other intervening petition.

On plaintiff’s appeal from this order it is claimed that the bank’s petition was insufficient (for noncompliance with section 72 of the Practice Act as it relates to the decree of sale, which had been entered more than thirty days prior thereto, and on other grounds as to the more recent orders) and we are asked to reverse the order of August 4 and declare it to be void.

The bank is the only appellee, and it has now filed a verified petition in this court confessing error and admitting the merits of the appeal. As we pointed out in People v. Kelly, — Ill App2d —, — NE2d — (Gen No. 50,953), and People v. Allen, 71 Ill App2d 283, — NE2d —, agreement of the parties does not control the judicial function of this court. In the Kelly case we did not reverse the conviction even though urged to do so by both parties to the appeal. In the Allen case we did reverse, but only after becoming satisfied from examination of the record that such determination was the proper one.

We are now presented with a somewhat different situation in this: the bank as appellee has stated, in effect, that an emergency exists (sale for delinquent taxes) which requires the immediate reversal of the order appealed from or the results will be injurious to all parties concerned; that any delay whatsoever will produce undesirable results which could otherwise be prevented or cured through further proceedings in the trial court.

Under these circumstances we have decided to give effect to the stipulation of the parties, and the order of August 4, 1965, is hereby reversed. We wish to make it clear, however, that it is only the emergency situation which has prompted us to take this action without study of the complicated multiple issues raised on this appeal. By our reversal we do not intend to establish any kind of precedent concerning those issues.

Reversed.

DRUCKER, P. J. and McCORMICK, J., concur.