author: MR. PRESIDING JUSTICE ABRAHAMSON MORAN, J.,

text:
    Frank J. Carlson, Plaintiff-Counter-Defendant-Appellee, v. Herbert Healey and Highland Lumber and Fuel Company, an Illinois Corporation, Defendants-Counter-Plaintiffs-Appellants.
    Gen. No. 65-63.
    Second District.
    April 18, 1966.

      Thomas and Kostantacos, of Rockford, for appellants.
    Kenneth Palmer and Wilbur E. Johnson, both of Rockford, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

On January 12, 1963, at about 11:00 a. m., plaintiff, Frank J. Carlson, was northbound in an automobile on 15th Street approaching the intersection of 6th Avenue in Rockford, Illinois. The defendant, Herbert Healey, was eastbound on 6th Avenue approaching the intersection in an automobile owned by his employer, the defendant Highland Lumber and Fuel Company. The intersection was not controlled by stop signs or other traffic control signals. A collision occurred. The plaintiff filed suit for his personal injuries and property damage and the corporate defendant counterclaimed for its property damage. The case was tried before a jury with the verdict being in favor of the plaintiff against both defendants in the amount of Four Thousand One Hundred Sixty-One ($4,161) Dollars, and against the corporate counterclaimant on the counterclaim. The court entered judgment on the verdict and denied a post-trial motion. Defendants and counterclaimant appealed charging several errors both in the taking of the discovery depositions of the plaintiff and during the trial.

During the discovery deposition of the plaintiff he refused to answer several questions on the advice of counsel. These questions are as follows:

1. Now, considering these two payments that you had made, do you know what the remaining balance was at that time?
2. Now tell me how you know it (the horn) was working ?
3. Do you know of anyone that will say Mr. Healey failed to keep a proper or any lookout ahead for you or someone else in your car ?
4. Do you know of anyone that will say that Mr. Healey failed to yield the right-of-way to your automobile as he was approaching this intersection ?
5. Do you know of anyone that will say that Mr. Healey failed to decrease the speed of his automobile as he approached this intersection ?
6. Will you or will anyone else say that he was in any other manner driving his automobile in a negligent, careless or improper manner?

Defendants moved to compel answers to the questions propounded. After the motion was heard and denied, they thereafter moved to exclude all evidence pertaining to various allegations of negligence set forth in the complaint. This motion was likewise denied.

Appellee contends that the propriety of the taking of the depositions is not preserved for appeal because the deposition was never filed with the clerk and never became a part of the record in the case. Also, that the praecipe for record did not direct the inclusion of the deposition and further the evidence and arguments presented on the motion to compel answers were not incorporated in the record.

We note that the deposition of the plaintiff consisted of 70 pages and that of his wife, 40 pages. We also note that an extract of the transcript of the deposition was incorporated in the motion to compel answers and is contained in the record. We feel that the alleged errors are adequately preserved in this manner to receive our consideration.

An analysis of the questions indicated that the first question is directed at determining the balance due on a loan which plaintiff had made to finance the purchase of the automobile. We fail to see any reason for this question since the ownership by the plaintiff of his automobile was admitted in defendants’ answer and the parties ultimately stipulated as to the amount of the damage to the respective vehicles. We find no error in the court sustaining plaintiff’s refusal to answer this question.

The second question was addressed to plaintiff after he had previously testified during the deposition that the horn had been working at all times, that he never knew it not to work and that he was sure it was working. After this extensive questioning we feel that the second question was only argumentative and the court properly sustained the refusal to answer.

The remaining four questions are all essentially of the same nature, that is, requesting the plaintiff to state whether he knew anyone who would say that the defendant Healey was guilty of an ultimate allegation of negligence contained in the complaint.

Illinois Supreme Court Rule 19-4 (c 110, § 101.19-4, Ill Rev Stats, 1963) provides:

“Upon a discovery deposition, the deponent may be examined regarding any matter, not privileged, relating to the merits of the matter in litigation, whether it relates to the claim or defense of the examining party or of any other party, including . . . the identity and location of persons having knowledge of relevant facts . . . .”

It has been held that Illinois rules of discovery are a comprehensive set of rules designed to provide an effective and broad discovery deposition practice for Illinois. Coutrakon v. Distenfield, 21 Ill App2d 146, 152, 157 NE2d 555 (1959). Questions asked at a discovery deposition are not limited to matters admissible in evidence. People ex rel. Terry v. Fisher, 12 Ill2d 231, 237, 145 NE 2d 588 (1957). Ever since the 1956 opinion of the Illinois Supreme Court in Krupp v. Chicago Transit Authority, 8 Ill2d 37, 41, 132 NE2d 532, discovery deposition has been an appropriate method of determining the names and addresses of persons who have firsthand knowledge of the occurrence relating to the litigation.

There are, however, certain limitations upon the questions which may be put to a party in a discovery deposition. Section 58 of the Civil Practice Act (c 110, § 58(3), Ill Rev Stats) provides that a party shall not be required to divulge the names of witnesses he intends to call. There is also the commonsense rule that a lay party should not be required to reach legal conclusions as to the effect of the testimony which other witnesses might give. Fedors v. O’Brien, 39 Ill App2d 407, 413, 188 NE2d 739 (1963); Reske v. Klein, 33 Ill App2d 302, 306 (1962); and American Oil Co. v. Penn Petroleum Co., 23 FRD 680.

We feel that counsel should and did in this case have full opportunity to interrogate witnesses on discovery deposition as to facts, however, we feel that the questions framed in the “who will say” manner violate both the rule forbidding the disclosure of witnesses who will be called at the trial and the rule excusing the lay witnesses from being required to give legal conclusions. We feel that the circuit court judges who ruled on defendants’ pretrial motions properly denied these motions.

Appellant charges that the court erred in refusing four instructions being defendants’ Instructions Nos. 14, 19, 21 and 24. No error with respect to Instruction 14 was claimed in defendants’ post-trial motion and the point has accordingly been waived. Ill Rev Stats, c 110, §68.1(2).

The subject matter of defendants’ Instruction 19 was adequately covered by defendants’ Instruction 20 which was given. Defendants’ Instruction No. 21 is a sudden and eminent danger instruction which was marked “refused” by the court as having been covered. There was no justification for this instruction to be given. See Committee Comment IPI, page 80.

Defendants’ Instruction 24 purports to be an instruction on the issues of the counterclaim. This instruction contains matters which the trial court found not to be substantiated by the evidence and the trial court found the subject matter of the instruction covered by plaintiff’s Instruction 6. We feel that plaintiff’s Instruction 6 states the issues of the complaint, but fails to cover the matters referred to in defendants’ Instruction 24. However, since the property damages suffered by the counterclaimant were stipulated to and since the jury returned a special verdict which found plaintiff and counterdefendant Frank J. Carlson not negligent, we feel that any error in the failure to give defendants’ Instruction 24 was not prejudicial.

Appellant next urges error in the admission of certain doctors’ and hospital bills without evidence as to payment or reasonableness thereof. This error was not urged in the post-trial motion and may not now be urged on review. Chapter 110, § 68.1(2), Ill Rev Stats.

Appellants further urge that the verdict was contrary to the manifest weight of the evidence. The plaintiff and his wife testified that the defendant’s vehicle entered the intersection traveling 35 or 40 miles per hour; however, plaintiff stated in the insurance claim form that both cars were proceeding at a slow rate of speed. He also stated in the same form that he had received no personal injuries, but then testified that, although he did not feel any pain at the scene of the accident or shortly thereafter, he did eventually experience pain and suffering in the cervical area of his back. The plaintiff’s wife also testified at the trial that the road conditions were good; however, in her discovery deposition she had stated that there was ice on the street and it was snowing at the time of the occurrence.

On the other hand, the defendant Healey recalled very little about the accident although he had traveled on the particular street in question numerous times.

While it is true that conflicting statements were elicited from the plaintiff, we are not prepared to say from our review of the record that the verdict of the jury was contrary to the manifest weight of the evidence nor that the damages awarded were excessive. To do so, we would be substituting our judgment for that of the jury who heard and saw the witnesses testify.

Appellants next complain about the misconduct of plaintiff’s counsel during the trial. Appellants’ brief sets forth in great detail several items claimed to constitute misconduct by plaintiff’s counsel. We have reviewed each element of this argument carefully and find that most of the matters therein referred to are insignificant and trivial in nature and not worthy of comment here. The only matter which does deserve comment is the question of the insertion of insurance into the trial.

During the cross-examination of the plaintiff he was interrogated about a claim form which had been filled in by his daughter at his direction and signed by him. On redirect examination, the following occurred:

“I see Defendants’ Exhibit 1 which is the statement which Mr. Traum was talking about, I see up there in the corner C and F. Do you know what that stands for?
A. No, I don’t.
Q. You don’t know what that is ?
A. No.
Q. Do you recall anything being said which induced you to fill out this form ?
A. Yes.
Q. What was that ?
A. I don’t know — Mr. Traum or someone from the insurance company said to my son if I fill out that form they will settle the claim, but the minute they get the claim in their hands they say ‘No, we don’t pay.’
Mr. Traum: Your Honor, I am going to move for a mistrial on the basis of that testimony and I would like to be heard on it outside of the presence of the jury.
Mr. Palmer: Your Honor, you are familiar with many cases which say if they want to throw that thing open—
Mr. Traum: I would like to explain this outside the presence of the jury.
The Court: Yes, I will give the jury a recess anyway. I will hear you.”

The court denied the motion for a mistrial but did admit the document into evidence at defendants’ request.

During closing arguments counsel for the plaintiff made the following comments to which no objection was made:

“There are several things Mr. Traum has said that I would like to comment about. The first one I want to talk about is that little piece of paper. You heard Mr. Carlson explain on the stand when Mr. Traum talked to Mm, cross-examined him, getting the facts of the matter, and I think you heard the truth of the matter on that and when I mentioned it I got in trouble and I don’t think I’m going to do it so far as to say it again, but you remember what Mr. Carlson said about that piece of paper.”

And later:

“You know that exhibit and I would like to give you the facts on it, but Mr. Traum does not want to and I got in trouble for doing that once.”
“Mr. Traum: Again and one more comment like that and I will move for a mistrial.
The Court: Objection sustained.”

Defendant’s Instruction No. 8 in the language of Illinois Pattern Jury Instruction No. 2.13 was given. This instruction was as follows:

“Whether a party is insured has no bearing whatever on any issue that you must decide. You must refrain from any inference, speculation, or discussion about insurance.”

The dangers inherent upon the intentional or unintentional insertion of the issue of insurance in the personal injury litigation have been commented upon many times by courts of review in Illinois. See Guardado v. Navarro, 47 Ill App2d 92, 197 NE2d 469 (1964) and cases cited therein; Reed v. Johnson, 55 Ill App2d 67, 204 NE2d 136 (1965); Sphatt v. Tulley, 38 Ill App2d 229, 186 NE2d 670 (1962) and Seyferlich v. Maxwell, 28 Ill App2d 469, 171 NE2d 806 (1961), see also Committee Comment to IPI No. 2.13.

While it might be argued in the case at bar that the original statement of the plaintiff during redirect examination concerning insurance was unintentional, still we feel that the remarks of plaintiff’s counsel during rebuttal argument were intentional. There was no foundation in the evidence for these comments. This is not a case where plaintiff’s counsel qualified under the exception to the rule relating to injection of insurance coverage into a trial. Guardado v. Navarro, supra, 101. Had plaintiff’s counsel on redirect examination elicited from the plaintiff the fact that the person for whose benefit the statement was given had an interest in the defense of the litigation, then comments on this fact in closing arguments would have been proper. Such is not the case before us; and consequently, prejudicial error was committed.

Because of the conclusion reached, the case must be reversed and remanded for a new trial.

Reversed and remanded.

DAVIS, J., concurs.

MORAN, J.,

dissenting.

In this case I feel that the reference to insurance by the plaintiff in redirect examination was an irresponsive answer to a question put to plaintiff by his counsel in explanation of defendant’s Exhibit No. 1 being a written statement. The statement itself was introduced into evidence and counsel for the defendant argued upon it in his closing statement of defense. The first reference to the statement was made without objection. The second reference to the statement, although not technically an objection, was treated as an objection by the court and sustained. I feel that the argument of counsel, although erroneous for not complying with the rules of evidence as stated in the majority opinion, was nevertheless harmless error and not prejudicial error. This view is fortified by the fact that the court gave the instruction and by doing so constituted a proper treatment of the situation. I, therefore, conclude that the case should be affirmed.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE MORAN

license: Public Domain

text:
    Village of Gurnee, a Municipal Corporation, Plaintiff-Appellee, v. Virgil Miller, Defendant-Appellant.
    Gen. No. 65-110.
    Second District.
    April 18, 1966.
    Rehearing denied May 5, 1966.

      James P. Moore, of Waukegan, for appellant.
    W. Howard Swanson, of Waukegan, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

The defendant operates an automobile junkyard in the Village of Gurnee in Lake County. It is stipulated that his operation consists of dismantling wrecked motor vehicles and burning the dismantled bodies causing the emission of black smoke, among other things.

On April 7, 1958, the village adopted a comprehensive zoning ordinance classifying the defendant’s property partially for residential and partially for business uses. The ordinance contains a so-called amortization provision which requires junkyards to be terminated as a land use thirty-six months after a change in the zoning classification of the property. In this instance, junkyards are not a permitted use in either the residential or business classifications of the village ordinance and therefore, on April 7, 1958, the defendant’s property became a nonconforming use and he was required to terminate such use thirty-six months thereafter.

The defendant failed to terminate the use within the time prescribed and was arrested by village authorities. Subsequently, he was found guilty and fined $50 in the Police Magistrate Court. Under the former practice, the defendant appealed to the Circuit Court of Lake County and the matter was heard on a stipulation of facts including all of the foregoing facts.

A memorandum of decision filed by the trial judge makes it clear that the trial court viewed the matter as a serious legal problem and one to be given thoughtful consideration. The court noted that under the appropriate provisions of the Municipal Code the corporate authorities may provide for the gradual elimination of nonconforming uses. Chapter 24, section 11-13-1, Ill Rev Stats. Amortization ordinances have been upheld in other states and while there was no Illinois decision on the point at the time of the trial court’s consideration, such ordinances have now been upheld in Illinois. Village of Oak Park v. Gordon, 32 Ill2d 295, 205 NE2d 464 (1965). The trial court pointed out that while amortization ordinances present a question of the reasonableness of the time limit, it is reasonable and common to provide a shorter amortization period for land uses and a longer period for buildings.

The trial court determined that the village ordinance was valid and reasonable in its application to defendant’s property and affirmed the decision of the Magistrate. This appeal followed.

As stated, at the time of making his decision, the trial judge did not have the benefit of the Supreme Court’s opinion in Village of Oak Park v. Gordon, supra. However, he correctly anticipated that when presented with the question the Illinois courts would decide that amortization ordinances are valid assuming their reasonableness as applied to particular property. Subsequent to the trial decision, our Supreme Court held in the Gordon case, supra, that amortization ordinances were a valid exercise of the police power and of the statutory authority granted by the Legislature. Although the court held that the ordinance there in question as applied to the property in question was invalid because no public need appeared for the restriction; still it noted that an amortization ordinance like any other ordinance is entitled to a presumption of validity and the burden is cast upon the person seeking to overthrow the ordinance to prove that the public welfare does not require the restriction. (See Jans v. City of Evanston, 52 Ill App2d 61, 201 NE2d 663 (1964).) We find the stipulation of facts wanting with regard to any facts supporting the defendant’s position that the public welfare does not require the imposed restriction. The defendant admits that he operates a junkyard, dismantles automobiles and burns them, causing the emission of black smoke.

We conclude that the defendant has failed to overcome the presumption of validity of the ordinance and that the trial judge was correct and should be affirmed.

Judgment affirmed.

ABRAHAMSON and DAVIS, JJ., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Donald Arbuckle, Plaintiff in Error.
    Gen. No. 65-114.
    Second District.
    April 18, 1966.

      John R. Snively, of Rockford, for appellant.
    William R. Nash, State’s Attorney, of Rockford, and William G. Clark, Attorney General, of Springfield, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

The defendant, Donald Arbuckle, was found guilty by a jury in the Circuit Court of Winnebago County for the offenses of escape and aiding escape. He was sentenced to a term of not less than four years and 360 days nor more than five years in the penitentiary; also, to a term of 270 days at the Illinois State Farm, both sentences to run consecutively. He sued out a writ of error to the Supreme Court to review the convictions claiming:

1) that he was denied his constitutional rights to demand the nature and cause of accusation against him because the indictment was faulty;
2) that he was denied his constitutional right to a speedy trial;
3) that the trial court erred in the admission of evidence, and
4) that the evidence was insufficient to sustain the conviction.

The Supreme Court considered the constitutional questions raised on the first two grounds and held that the allegation of error with respect to the indictment raised no real question of defendant’s constitutional right “to be informed of the nature and cause of the accusation.” It further held that defendant was obviously not deprived of his constitutional and statutory right to a speedy trial. This cause was then transferred to this court for consideration of the remaining issues in the case. People v. Ar-buckle, 31 Ill2d 163, 201 NE2d 102 (1965).

On February 19, 1958, the defendant went on trial in the Circuit Court of Winnebago County for the charge of statutory rape. After a jury had been selected and certain evidence adduced, the defendant withdrew his plea of not guilty, waived trial by jury and entered a plea of guilty. The guilty plea was accepted by the court and judgment entered accordingly. The court continued the case until February 21 for hearing in mitigation and aggravation of the offense and defendant was remanded to jail.

On the evening of February 20th the defendant and one Thomas Verkuilen escaped from the county jail. The jail is located on the fourth floor of the court house. About 9:30 p. m. on February 20th the deputy jailer attempted to lock the prisoners in their cells for the night. To do this he pulled a lever which was supposed to lock all of the cell doors at one time. As he pulled the lever down it appeared to jam and one cell door opened. The jailer opened the tier door and reached in to pull the cell door closed. As he reached for the door Verkuilen came out and struck the jailer on the head with a stick. Ar-buckle then came out of the cell and struck at the jailer with a sock containing a bar of soap. After overpowering the jailer, the two prisoners went down one flight of stairs to the jail office where they wrestled and overpowered a second jailer. They then went into an interrogation room beyond the office where Verkuilen pulled off a screen and broke a window. Verkuilen went out of the window and climbed down a drainpipe. Arbuckle climbed out of the window and in attempting to go down the drainpipe, fell breaking two bones in his left ankle and a bone in an arm.

An intensive search was conducted and in the early morning of February 21, the defendant was found in an automobile in a parking lot close to the court house. He was taken to a hospital for treatment and then brought back to the county jail where he was imprisoned. On the same day, February 21, he was taken into court on a stretcher and was sentenced to the penitentiary for a life term on the statutory rape conviction. Thereafter, he was indicted for the offenses of escape and aiding an escape and was returned to Winnebago County for trial on these charges in June of 1958. He was represented at the trial and in this appeal by an experienced trial attorney appointed by the court.

At the trial the sheriff, two jailers and seven other deputy sheriffs, Thomas Verkuilen and the chief deputy clerk of the circuit court, testified on behalf of the State. The defendant testified in his own behalf. The gist of the defendant’s testimony was that on the evening of February 20th, the doors of the jail were opened so he walked out with Verkuilen. With reference to his attack on the first jailer, he testified that he was defending himself as he was going out the door because the jailer was trying to hit him with some keys.

The testimony leaves no doubt whatsoever in our minds but that defendant Arbuckle was guilty of the crimes for which he is charged. We have examined his argument with respect to corpus delicti and the evidence being insufficient, but find no justification for these arguments.

Defendant contends that the conviction of the felony of statutory rape was not properly proved. It must be kept in mind that this was not offered for impeachment purposes. This proof was offered during the State’s case in chief because one of the necessary elements of the charge against him under the Escape Statute was that at the time of his escape he was confined in jail on a felony charge. For the same reason the State also offered evidence tending to show that at the time of the escape Verkuilen was imprisoned on a misdemeanor conviction. To offer this proof the State called the deputy circuit clerk as a witness who read certain portions of the court records in plaintiff in error’s statutory rape case and in Verkuilen’s petty larceny case. The entire records in both of these cases were admitted in evidence as People’s Exhibits 2 and 3. We feel that the records were properly introduced and that the two convictions were proved by the records. Whether the clerk should have been permitted to read portions of those records to the jury we feel was a matter within the province of the trial court.

It is urged that the court erred in admitting the testimony of one Michael Iasparro, deputy sheriff, pertaining to a confession made by defendant at the hospital in the early morning of February 21, 1958, in violation of c 38, § 729, Ill Rev Stats (1957). The deputy sheriff who was listed as a witness on the indictment stated that he saw defendant lying on a table in the emergency room of the hospital. He asked the defendant what happened and what he had done. The defendant responded that he was glad he got caught because he was frozen to death and that he thought his ankle was “busted.” The defendant stated that they, he and Verkuilen, had planned the escape for about a week, had obtained some soap and jammed the lock of the cell door. When the door jammed and the jailer entered the cell tier to shut the cell door, he struck the jailer in the face with a sock. As they went down the stairs, they met the other jailer and there was a scuffle. He stated that they then went into the interrogation room, pulled off the screen mesh and broke the window with the sock containing the soap. Defendant stated that Verkuilen went out the window first and he then followed. When he fell he felt pain in his ankle and ran across the street into a parking lot and crawled into the automobile where he was later found.

The State contends that the foregoing does not constitute a confession but rather a statement so that compliance with Section 729 was not required.

We disagree. We feel that these statements made by defendant at the hospital constituted a rather complete confession. This is to be distinguished from a situation where a defendant simply makes statements or declarations of independent facts from which guilt may be inferred. See The People v. Stanton, 16 Ill2d 459, 466, 158 NE2d 47 (1959). However, this oral confession was made to a deputy sheriff, as aforesaid, whose name was endorsed on the indictment. Under these circumstances, this constituted substantial compliance with Section 729.

During oral arguments before us counsel for the People acknowledged that error occurred during the cross-examination of the defendant, when he was questioned on having been in Stateville Penitentiary from 1950 until 1956. The prior conviction for the crime of statutory rape, a felony and necessary element of the offense being tried, had already been properly shown by the introduction of the record which discredited defendant’s testimony. Cross-examination of the defendant on a 1950 conviction without introducing the record thereof was unnecessary to discredit defendant’s testimony and was not a proper way to prove a prior conviction. People v. Smith, 63 Ill App2d 369, 380, 381, 211 NE2d 456 (2d Dist, 1965).

Conceding that error has been committed, the question is whether or not the errors above referred to are so prejudicial as to vitiate the jury verdicts. We note that with respect to the counts of the indictment charging the felony of escape, the sentence was a maximum sentence and was imposed by the trial court following the verdict. The sentence on the misdemeanor of assisting escape was fixed by the jury in the same duration as the sentence previously given Thomas Verkuilen on his petty larceny conviction. This was in accordance with the penalty provided by statute in such case.

In the People v. Sleezer, 9 Ill2d 57, at page 62, 136 NE2d 808, the Supreme Court stated:

“The evidence here so clearly indicates defendant’s guilt that we cannot say the result would have been different without trial irregularities. When the error complained of could not reasonably have affected the result, the judgment should be affirmed. (People v. Cardinelli, 297 Ill 116; People v. Haensel, 293 Ill 33.) The question is not whether the record is perfect but whether the defendant has had a fair trial and if his conviction is based on evidence establishing his guilt beyond a reasonable doubt.”

And, again in The People v. Pelkola, 19 Ill2d 156, 166 NE2d 54 (1960), the Supreme Court opinion states at pages 162 and 163 as follows:

“We are of the further opinion, however, that the error of the trial court does not justify a reversal of the judgment of conviction. Error in the admission of evidence is harmless where the facts involved are established by other competent evidence, (People v. Grundeis, 413 Ill 145; People v. Crowe, 390 Ill 294,) particularly where such other evidence is conclusive on the issue of the guilt of the accused. (People v. Montgomery, 271 Ill 580; People v. Burger, 259 Ill 284.) Again, we have said that whether the admission of incompetent evidence is sufficient ground to require reversal depends on the facts in each case, (People v. Bureca, 355 Ill 202; People v. Slattery, 312 Ill 202,) and have held that where the record contains sufficient competent evidence to establish the guilt of a defendant beyond reasonable doubt, the judgment will not be reversed for error in admitting evidence unless it can be seen that the error was prejudicial. (Citations omitted.)”

In the case at bar there were ten witnesses besides the chief deputy clerk of the circuit court and Michael Iasparro, deputy sheriff, who testified in behalf of the People. Their evidence, without reference to any other alleged incompetent evidence, was sufficient to establish the guilt of the plaintiff in error beyond a reasonable doubt.

The court cannot conceive that any other verdict would be reached if the case was to be retried and we, accordingly, hold that the judgment of the Circuit Court of Winnebago County should be affirmed.

Judgment affirmed.

DAVIS and ABRAHAMSON, JJ., concur.


author: PRESIDING JUSTICE MORAN.

text:
    John G. Plain, Plaintiff-Appellant, v. Ruth R. Plain and Wm. Walsh, Defendants-Appellees.
    Gen. No. 65-136.
    Second District.
    April 18, 1966.
    James E. Cheatham, of Aurora, for appellant; Reid, Ochsenschlager, Murphy & Hupp, of Aurora, for appellees.
   Opinion by

PRESIDING JUSTICE MORAN.

Not to be published in full.


text:
    Melville J. Bradsteen, Plaintiff-Appellant, v. American Economy Insurance Company, Defendant-Appellee.
    Gen. No. 65-117.
    Second District.
    April 19, 1966.

      Haye & Keegan, of Rockford, for appellant.
    Berry & Simmons, of Rockford, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

This is an action brought to interpret an insurance policy. The plaintiff purchased a policy of insurance from the defendant insurance company providing for so-called “comprehensive” coverage but excluding collision coverage.

Early in the morning on July 8, 1961, the plaintiff was driving a Superba automobile — a personal car identical to a checker taxicab in construction — on Route 26 near Janesville, Wisconsin. He was proceeding along the highway when suddenly he saw a large tree fall across the road about 125 feet in front of him. He applied his brakes but was unable to stop, swerved off the road to the right and turned over in the ditch demolishing the car.

One of the numerous dents on the car was a rounded dent in the trunk. The plaintiff suggests that his car was actually hit by the tree. The trial court found, however, that the tree did not actually come into contact with the car but was resting upon the highway before the plaintiff’s car swerved and left the highway.

The value of the plaintiff’s car prior to the occurrence was $2,300; after the accident its value was $300, and plaintiff claims damages of $2,000.

The policy of insurance issued by the defendant provides that the company will “pay for loss caused other than by collision to the owned automobile.” Collision is defined as “collision of an automobile covered by this policy with another object or with a vehicle to which it is attached or by upset of such automobile.”

The parties agree that if the tree on its downward plunge at the precise moment the plaintiff was passing had struck the plaintiff’s vehicle there would be coverage. They further agree that if the tree had fallen some indefinite period of time prior to the plaintiff’s arrival at the scene, and plaintiff’s car had collided with it, there would be no coverage. Their differences in viewpoint arise in connection with the varying situations between these two propositions.

The plaintiff contends that the almost simultaneous falling of the tree along with his reaching the locus in quo was the proximate cause of his veering into the ditch and the resulting damage to his car. Consequently, he reasons that the falling object, the tree, caused his damage and not the upset which thereafter occurred. Conversely, the defendant contends that the proximate cause theory is not a factor to be considered since this is an action sounding in contract and not in tort.

Although the Illinois courts have not squarely passed upon this circumstance, there has been a pronouncement of what establishes a collision. In the case of Walter E. Heller & Co., Inc. for Use of Kennedy v. International Indemnity Co., 238 Ill App 361 (1925), the plaintiff, who had collision coverage, sought to avoid another car, swerved into a ditch, collided with the bank of the ditch and thereby damaged his automobile. It was held that this constituted a collision.

In Bruener v. Twin City Fire Ins. Co., 37 Wash2d 181, 222 P2d 833 (1950), the plaintiff, who did not have collision coverage but did have comprehensive coverage, as in the case at bar, skidded while driving upon icy pavement. As a result he lost control of his car, careened into a ditch and collided with the embankment. Based upon an earlier decision which adopted the proximate cause theory, the plaintiff brought suit. See, Ploe v. International Indemnity Co., 128 Wash 480, 223 P 327. However, in the Bruener case, the court stated at page 835:

“We are aware that there is a line of insurance cases which apply the rules of proximate cause and that Washington, by virtue of the Ploe case, supra, is now committed to that rule.
“We think it is neither the majority nor best reasoned rule and, accordingly, we overrule the Ploe case, supra, and Olympic Securities Co. v. Pennsylvania Fire Ins. Co., 135 Wash 307, 237 P 707, which followed it, in so far as they are inconsistent with this opinion.”

We are not disposed to interfere with the trial judge’s finding of fact. He found that the tree was on the highway prior to the plaintiff’s arrival, that the tree did not fall upon the plaintiff’s car and that in attempting to avoid colliding with the tree, the plaintiff ran off the road and had a collision. It was the collision itself that was the direct cause of the damage.

We conclude that the trial court was correct in finding that the plaintiff had a collision and that there is no collision coverage under the policy.

Judgment affirmed.

DAVIS and ABRAHAMSON, JJ., concur.


author: MR. JUSTICE DAVIS

text:
    Elizabeth W. Brandel, Plaintiff-Appellant, v. John M. Brandel, Defendant-Appellee.
    Gen. No. 65-134.
    Second District.
    April 22, 1966.

      Tyler & Peskind, of Aurora, for appellant.
    Givler, Meilinger, Casey & Flanders, of Aurora, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal by petitioner, Elizabeth W. Brandel, from an order denying her petition for the enforcement of certain provisions of the divorce decree entered July 11, 1963, wherein she obtained a divorce from the respondent, John M. Brandel.

The decree specifically incorporated an agreement, previously entered into by the parties, which settled all matters relating to alimony and property rights. The portion of the agreement and decree over which this dispute arose, deals with the insurance policies which the respondent held on his life, and states:

“All policies of insurance on ‘John’s life, totaling $46,000.00 in face value, shall be retained by ‘John,’ who shall pay the premiums thereon, shall keep them unencumbered, and shall maintain ‘Elizabeth’ as irrevocable beneficiary thereunder; provided, however, that when Drew reaches age twenty-one (21), ownership of $20,000.00 of this insurance will be transferred to ‘Elizabeth.’ ”

The petitioner was not made the irrevocable beneficiary in the insurance policies, and she filed a petition asking that the respondent show cause, if any he has, why he should not be held in contempt of court for failure to comply with the terms of the decree in this respect; praying that an order be entered directing the respondent to execute appropriate change of beneficiary forms; and seeking an award of attorneys’ fees.

The respondent answered contending that the quoted portion of the agreement and decree meant that the insurance policies were to remain unencumbered, with plaintiff designated as irrevocable beneficiary until their daughter, Drew, reached the age of 21 years (which has already occurred), at which time he was to transfer ownership of $20,000 of the policies to the petitioner as security for alimony payments; and that he would then retain the balance of the insurance free from any control by the petitioner. The trial court adopted this construction and denied the relief sought by petitioner.

When an agreement of the parties with respect to alimony and property rights is adopted by the court and incorporated into the final decree, the agreement becomes merged in the decree, and the rights of the parties thereafter rest upon the decree. However, the incorporation of the settlement agreement into the decree by agreement of the parties, does not affect the power of the court to alter that provision of the decree when a change of circumstances warrants a modification. Maginnis v. Maginnis, 323 Ill 113, 118, 119, 153 NE 654 (1926).

In interpreting the provisions of a divorce decree entered under such circumstances and where the specific items constituting the quid pro quo for the agreement are recited therein, as in the case at bar, it is the intention of the parties as expressed in the agreement that the court seeks to ascertain. In re Estate of Kuchenbecker, 4 Ill App2d 314, 318, 124 NE2d 52 (1st Dist 1955). The normal rules applicable to the construction of contracts apply to this situation.

In the case at bar, the petitioner seeks to enforce the provisions of the decree. The respondent did not file a counterclaim seeking a modification of the decree due to a change in circumstances since the date of its entry, but rather, he contends that the negotiations between the parties at the time they were seeking to achieve the property settlement agreement, which was finally reached and incorporated into the decree, support his interpretation of the agreement and decree. Without passing on the propriety of this contention, we recur to the most basic rule recognized in construing written instruments, namely: that the object of construction is to ascertain the intention of the parties, and if the instrument itself is unambiguous, it then affords the only criterion of this intention and no question of construction arises. Ambarann Corp. v. Old Ben Coal Corp., 395 Ill 154, 164, 69 NE2d 835 (1946); Illinois State Toll Highway Commission v. M. J. Boyle & Co., 38 Ill App 2d 38, 51, 52, 186 NE2d 390 (1st Dist 1962).

The agreement and decree state in abundantly clear language that the respondent was to keep in force and unencumbered, all of the insurance policies on his life, totalling $46,000; that he was to pay the premiums thereon, and maintain the petitioner as “irrevocable beneficiary thereunder.” Such provisions are without ambiguity. They state that the petitioner was to be designated as the “irrevocable” beneficiary in the policies, which means that the respondent could not revoke the beneficiary designation. There was no time limitation in connection with this beneficiary designation. The agreement and decree neither state, nor suggest, that the provision as to insurance was intended as security for the payment of alimony as respondent contends. The remainder of the provisions relating to the life insurance, additionally require that the ownership of $20,000 of this insurance be transferred to the petitioner upon the daughter, Drew, attaining the age of 21 years. There are no provisions — either expressed or implied — that thereafter the balance of the insurance is no longer to be maintained with the petitioner as irrevocable beneficiary. In fact, the agreement is otherwise. Consequently, no question of construction arises.

The trial court did not allow the petitioner attorneys’ fees. The matter of allowance of attorneys’ fees to one seeking to enforce a divorce decree, rests in the sound discretion of the court. Roback v. Roback, 59 Ill App2d 222, 231, 207 NE2d 130 (2nd Dist 1965); Shuff v. Fulte, 344 Ill App 157, 165, 166, 100 NE2d 502 (3rd Dist 1951); 16 ILP, Divorce, Sec 172. It is probable that the trial court did not allow fees to the petitioner because it was of the opinion that she was not correct in her assertion that respondent had not complied with the provisions of the divorce decree. We assume that under the facts in this case and under the law herein pronounced, the trial court, on remand, will exercise its discretion by allowing petitioner attorneys’ fees and expenses incurred in enforcing the divorce decree.

The order of the trial court is reversed and remanded with directions to grant the relief sought in the petition filed herein.

Reversed and remanded.

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


author: PRESIDING JUSTICE GOLDENHERSH.

text:
    People of the State of Illinois, Defendant in Error, v. S. J. Embery, Impleaded, Plaintiff in Error.
    Gen. No. 65-97.
    Fifth District.
    April 13, 1966.
    Cornelius T. Ducey, of Belleville, for plaintiff in error; John M. Earns, Jr., State’s Attorney of St. Clair County, of Belleville (Robert L. Jennings, Assistant State’s Attorney, of counsel), for defendant in error.
   Opinion by

PRESIDING JUSTICE GOLDENHERSH.

Not to be published in full.


author: EBERSPACHER, J.

text:
    Charles T. McNeil, Plaintiff-Appellant, v. Allstate Insurance Company, a Corporation, Defendant-Appellee.
    Gen. No. 65-46.
    Fifth District.
    April 14, 1966.

      C. Robert Hall, of Carbondale, for appellant.
    Franklin, Garrison & Bleyer, of Marion (James B. Bleyer, of counsel), for appellee.
   EBERSPACHER, J.

Plaintiff seeks to recover for loss of his automobile and medical expenses incurred as a result of an accident occurring on July 11, 1964, from defendant, his insurer, under the provisions of a policy which insurer had issued on March 27, 1964. The policy showed the policy period to be from March 27, 1964, to March 27, 1965, and contained a provision for cancellation, the pertinent part of which is as follows:

“Allstate may cancel this policy by mailing, to the insured name on the Supplement Page at his address shown in this policy, written notice stating when not less than ten days thereafter such cancellation shall be effective. The mailing of notice shall be sufficient proof of notice and the effective date and hour of cancellation stated in the notice shall become the end of the policy period.”

The original complaint set forth that plaintiff was the owner of the automobile in question, for which defendant had issued its policy insuring against, among other things, loss of the automobile as a result of collision, and a limited reimbursement for medical expenses. A copy of the policy was attached, and the complaint further alleged that while the policy was in full force and effect, plaintiff had an accident, and it also alleged compliance with all conditions of the policy, except such terms as were waived by defendant’s denial of liability. Plaintiff prayed judgment for $6,200 and demanded trial by jury.

To this complaint defendant filed a motion praying dismissal of the action pursuant to paragraph 1 of section 48, and other applicable provisions of the Practice Act. One of the grounds set forth in defendant’s motion was that the claim asserted in the complaint was barred due to an alleged cancellation of the policy, effective June 24, 1964, due to nonpayment of premiums. The motion was supported by the affidavit of an employee to the effect that he was in charge of preparing and mailing notices of cancellation for defendant company and that a notice of cancellation had been mailed to plaintiff at his address shown on the policy on June 12, 1964. Attached to defendant’s motion was a copy of a statement taken from plaintiff on July 24, 1964, in which plaintiff had stated, among other things, that he had his insurance transferred from another car in March 1964, that he had made no premium payments since June 24, 1964, and that the last payment he could recall having made was in August 1968. In its motion defendant demanded trial by jury.

Defendant’s motion to dismiss was denied with leave to amend the motion by attaching exhibits, including, but not limited to, a copy of the notice of cancellation. Defendant filed its amended motion to dismiss attaching thereto an affidavit of the supervisor of the accounting division of defendant company, with copies of the alleged cancellation notice and copies of premium notices, alleged to have been mailed to plaintiff, and incorporated the same grounds as were urged in defendant’s prior motion to dismiss.

Thereupon, plaintiff filed a motion to deny and strike defendant’s amended motion to dismiss, which motion was predicated upon the grounds that, (1) subsection (3) of section 48, of the Civil Practice Act, required defendant’s motion to be denied, the motion raising a question of fact, for the trial of which a jury had been demanded by both parties, (2) that the amended motion and affidavits were insufficient, as a matter of law, to show the alleged cancellation, and (3) that defendant had admitted coverage under the policy in question.

This motion of plaintiff was supported by his affidavit, to the effect that his mother had taken out and paid for a policy of insurance on a 1963 Buick automobile, for the period from August, 1963, to August, 1964; that his mother died in November, 1963; that, in March, 1964, plaintiff surrendered this policy to defendant for cancellation and took out a policy on the 1964 Buick automobile, for which he had traded in the 1963 automobile; and that the prior policy was almost identical in terms to the policy in question and when plaintiff made application for the policy in question he surrendered the prior policy for cancellation and requested application of the unearned premium thereon toward payment of the premium on the policy in question, there being unearned premium on the prior policy from March 1964 to August 16, 1964. His affidavit further alleged that he never received any notice of premiums being due or of the alleged cancellation ; that he gave immediate notice of the loss of July 11, 1964, and received, in response thereto, a letter from defendant, dated July 15, 1964, acknowledging coverage of the loss, requesting plaintiff’s cooperation in the matter of the loss, including his execution of certain report of accident forms; that, in reliance upon the letter, he incurred hospital and medical expenses, left the matter of the salvage of his automobile up to defendant, and cooperated with defendant in every way, including, but not limited to, the furnishing of the statement, of which defendant had attached a copy to its original motion to dismiss; that defendant had retained his report of aceident form; and that defendant did not unequivocally deny coverage of the loss until August 19,1964.

Defendant thereupon moved to strike plaintiff’s motion to deny and strike, on the grounds that, (1) the matters put forth in plaintiff’s motion were not germane to the alleged cancellation, (2) defendant’s conduct subsequent to the alleged cancellation was not in issue, and (3) the matters relating to issuance of the policy were not at issue.

The trial court consolidated all of the motions, sustaining defendant’s motions and denying plaintiff’s motion, and granted leave to plaintiff to file an amended complaint.

Plaintiff filed an amended complaint, setting forth therein substantially the same matters alleged in the original complaint; and, in addition, setting forth the alleged cancellation, but alleging waiver of any purported or alleged cancellation.

Defendant moved to dismiss plaintiff’s amended complaint on the grounds that, (1) the court’s previous ruling, that the policy had been effectively cancelled, precluded any further litigation of that matter, and (2) by reason of such ruling, the amended complaint does not state a cause of action as a matter of law. Defendant further urges that, the theory of waiver or estoppel is not available to create a contract of insurance which has been theretofore cancelled, that plaintiff was not prejudiced and defendant not unjustly enriched by any action of def endant subsequent to the alleged cancellation, that defendant’s actions were reasonable in view of its business practices, and that defendant promptly advised plaintiff of a coverage question after the accident, and did, on August 19, 1964, notify plaintiff’s attorney that defendant’s records showed a cancellation of the policy.

Upon the hearing on defendant’s motion, the court sustained the motion and dismissed the amended complaint, and entered final judgment for defendant and against plaintiff.

The question raised is as to the propriety of the court’s action (rendering final judgment) under section 48(1) (i), which provides:

“(1) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
“(i) That the claim or demand asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim or demand.”

A defendant who pleads the cancellation of a policy of insurance has the burden of proving it. Cancellation is an affirmative defense, and whether the insurer gave the notice of cancellation required is a question of fact. Great Northern Life Ins. Co. v. Federal Life Ins. Co., 260 Ill App 369; National Fire Ins. Co. v. Three States Lumber Co., 119 Ill App 67, affirmed 217 Ill 115, 75 NE 450, where in affirming our Supreme Court said, “Whether the company gave such notice . . . were questions of fact”. (See also 29A Am Jur, Insurance, § 1841; and ILP, Insurance, § 249.)

The defendant contends that when the facts submitted show a mailing of notice of cancellation, there is no factual question for a jury to consider, and the matter then becomes a question of law for the court, and cites County of Williamson v. Standard Acc. Ins. Co., et al., 32 Ill App2d 363, 178 NE2d 149. In that case plaintiff brought suit for a declaratory judgment, on a policy containing a similar cancellation provision. Employees of the company testified as to preparing and mailing of the cancellation notice. A receipt from the postal authorities was produced and admitted into evidence. That testimony was not contradicted by the defendant county whose only testimony was to the effect that the address stated in the policy was not the correct one, and the highway commissioner testified he did not receive the notice. The jury gave a verdict for plaintiff, declaring the policy was in effect at the time of the loss. In reversing the judgment, the Appellate Court said:

“The undisputed evidence was that the company had complied with the terms of the policy as written, which is the requirement of the law. There was no evidence that it was requested or notified to address the mail elsewhere, so there was no question of fact to submit to the jury.”

In the present case we can hardly say the evidence is undisputed. It is disputed by the allegation of the complaint to the effect that the policy was in full force and effect; it was disputed by the policy itself which on its face stated that the policy period was from March 27, 1964, to March 27, 1965; it was disputed by defendant’s letter of July 15, 1964, acknowledging coverage of the loss; and whether or not there was or should have been a cancellation of the policy for nonpayment of premiums is disputed by plaintiff’s allegation that in March 1964, he requested a credit on this policy premium for the premium payment from the prior policy; this record does not show that such credit was not due him or was refused to him.

Furthermore, here the affidavit of the defendant’s mailing supervisor disputes the date of mailing shown by the defendant’s record of mailing, both of which are a part of the same defendant’s exhibit A. The affidavit states that the cancellation notices included in the “Record of Mailing” were mailed on 06-12-64, while the “Record of Mailing” includes the following, “Date — 06-10-64, List of cancellation notices mailed to the following persons at the addresses indicated.” The affidavit of mailing is dated June 15; it simply states that the notice was mailed on 06-12-64, not that affiant mailed it or that it was mailed under his direction, and unlike the Williamson County case no postal receipt was presented. There is no explanation as to how a record of mailing showing mailing on the 10th of the month could be properly made when the notice was mailed on the 12th of the same month. To deny the right of cross-examination, and the right of a jury to determine the credibility of such confused evidence, on a material issue, would amount to deprivation of a fundamental right. It would appear that reasonable men might reach the conclusion that the affiant simply did not know, but was supposed to know, whether it was mailed or not, or whether the customary business practice with reference to mailing was followed on the date in question. Exhibit A, being the only proof of compliance with the cancellation clause, and the only proof disputing plaintiff’s allegations of coverage, we cannot say that it is the clear, convincing and undisputed evidence on which any summary action should be based.

Defendant urges that the purpose of the section 48 of the Practice Act is to dispose of the issues easily determined without trial by jury, and has the effect of Summary Judgment proceeding, which is a favorite of the law. To support this contention, defendant cites John v. Tribune Co., 19 Ill App2d 547, 154 NE2d 862; Tidwell v. Smith, 27 Ill App2d 63, 169 NE2d 157; and Murphy v. Cory Pump & Supply Co., 47 Ill App2d 382, 197 NE2d 849. Upon reading those cases we do not reach the conclusion that a motion under section 48(1) (i) should be the basis of summary action. In the Tribune Co. case the court, in discussing the purpose of section 48, points out that section 48 (1) (i) is excepted from their general language, saying at page 553 of 19 Ill App2d, page 865 of 154 NE2d,

“Having concluded that what was presented to the court involved an issue of fact, could such an issue be disposed of by motion to dismiss under Section 48? The main purpose of that section (aside from (1) (i)) is to provide for a disposition of a case upon such defenses as jurisdiction of the court, legal capacity to sue and be sued, prior judgment, and other defenses which may be decided by resort to a record or matter so conclusive that a plaintiff could not deny it. However, Section 48(1) (i) which has been added seems to have embarked on a field the limits of which are not as yet defined. It provides for the use of the motion when ‘the claim or demand asserted against defendant is barred by other affirmative matter voiding the legal effect of or defeating a claim or demand.’ This might be taken to mean any plea of a new matter, factual or otherwise. Obviously, it cannot have such a broad interpretation, for so applied it could result in a trial without a jury (although one may have been demanded), without oral evidence and without cross-examination. We will not undertake to define the limits of Section 48(1) (i) at this time, but it is clear that where the affirmative matter, so-called, is nothing more than evidence upon which a defendant expects to contest a vital fact stated in a complaint, such as the averment in the instant case that the libelous language was said of and concerning plaintiff, the motion to dismiss under Section 48(1) (i) is not proper. An issue is presented, to be tried in ordinary course,”

and reversed the order and remanded with directions to deny the motion, and direct defendant to answer. The Tidwell case pointed out that section 43 of the Practice Act points out that the facts concerning an affirmative defense must be plainly set forth in the answer, quoted with approval a part of the above quoted language from the Tribune Co. case and held that the trial court erred in allowing the motion to dismiss and entered judgment for a defendant, who in the motion under section 48(1) (f) pleaded a release of a joint tort feasor. In the Cory case defendant had answered the complaint; then filed its motion for a summary judgment, supporting its motion by a portion of the discovery proceedings. The trial court granted summary judgment and was affirmed, but the case is not authority that such a result can be reached under section 48, nor is it authority that summary judgment is “a favorite of the law.” In commenting on section 57 of the Practice Act, Judge Dove, in that opinion said:

“Summary judgment procedure is an important tool in the administration of justice, and its use is to be encouraged in a proper case wherein is presented no genuine issue as to any material fact,”

and cites Allen v. Meyer, 14 Ill2d 284, 152 NE2d 576, which likewise was a case in which the motion for summary judgment was made after an answer and reply were filed, and depositions taken.

We believe this case comes squarely within the purview of section 48(3) of the Practice Act, chapter 110, § 48(3), Ill Rev Stats 1963, which requires defendant’s motion to be denied. Here, not only has plaintiff filed a jury demand in apt time, but defendant likewise demanded a jury trial at the earliest opportunity, neither of which were withdrawn at the time judgment was entered. Section48(3) provides:

“If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating thé grounds of defect, the court may hear and determine the same and may grant or deny the motion. If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the matter of the motion by answer and shall so deny it if the action is one at law and a jury demand has been filed by the opposite party in apt time.”

The court erred in allowing defendant’s motion to dismiss and entering judgment for the defendant, and, accordingly, the judgment is reversed and the cause remanded for further proceedings not inconsistent herewith.

Reversed and remanded.

GOLDENHERSH and MORAN, JJ., concur.


text:
    Acme Excavating Company, an Illinois Corporation, Plaintiff-Appellant, v. State Bank of Breese, a Corporation, Defendant-Appellee, and John A. Ketzner, Defendant.
    Gen. No. 65-92.
    Fifth District.
    April 26, 1966.
    Rehearing denied April 17, 1966.

      McGrady and Madden, of Gillespie (D. A. McGrady, of counsel), for appellant; James H. Donnewald, of Breese, and John P. Wham, Wham & Wham, of Centralia, for appellee.
   Opinion by

PRESIDING JUSTICE GOLDENHERSH.

Not to be published in full.


author: JUSTICE MORAN.

text:
    Robert J. Malcomson, Plaintiff-Appellant, v. Rex Bennett, Defendant-Appellee.
    Gen. No. 65-59.
    Second District.
    April 29, 1966.
    Peregrine, Stime & Henninger, of Wheaton, for appellant; Popejoy, Bowman, Unverzagt, Nelson & Becker, all of Wheaton, for appellee.
   Opinion by

JUSTICE MORAN.

Not to be published in full.


author: GOLDENHERSH, P. J. MORAN, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Philip Kurtz, et al., Defendants-Appellants.
    Gen. No. 65-66.
    Fifth District.
    May 2, 1966.
    Rehearing denied May 21, 1966.

      Meyer and Meyer, of Belleville, for appellants.
    Douglas Marti, of Greenville, for appellee.
   GOLDENHERSH, P. J.

The defendants, Philip Kurtz, Larry C. Irving and James H. Grogan, were tried by jury in the Circuit Court of Bond County and convicted of the crime of theft of property exceeding $150 in value (c 38, § 16-1, Ill Rev Stats 1965) and sentenced to the penitentiary, Kurtz and Grogan for terms of not less than 5 nor more than 10 years, and Irving for not less than one nor more than 2 years.

The indictment charged the theft of a 1959 Ford and that it was the property of Lamoine D. Brown.

Defendants, as grounds for reversal, argue that the People failed to prove beyond a reasonable doubt that the value of the automobile allegedly stolen exceeded $150, failed to prove that Lamoine D. Brown owned the automobile, that the indictment is defective in that it fails to definitely identify the exact property allegedly stolen, that the circuit court erred in refusing to grant defendants’ motions for continuance and erred further in denying defendants’ motion for mistrial during the questioning of a venireman on voir dire.

On the morning on which the case was set for trial, defendants filed two motions for continuance. The first motion moved for continuance on the ground that defendant Irving was suffering from acute peptic ulcer and anxiety reaction, and a medical report dated four days earlier stated that it was the opinion of his physician that he could not stand trial at that time. It is clear from the testimony of defendant, Irving, in support of the motion, that he had been advised to undergo surgery for the correction of his condition but had not done so. The motion was addressed to the discretion of the trial court (c 38, § 114-4 (e), Ill Rev Stats 1965) and the record shows no abuse of discretion.

Defendants’ second motion states that the Green-ville Advocate, published in Bond County on a biweekly basis, in its edition dated April 6, 1964, four days after defendants’ arrest, and in the edition dated March 11, 1965, four days before the trial date, contained articles which were inflammatory, and so prejudicial to the defendants as to make it impossible for them to receive a fair trial. The publisher of the paper testified that of the 60 persons on the jury panel, 45 received the paper. Portions of the voir dire examination of prospective jurors are abstracted and an examination of the testimony does not indicate that the jurors were influenced by what they read.

The achievement and maintenance of a stable equilibrium between the freedom of the press and the right of one accused of crime to a fair trial before a jury not influenced by publicity regarding the alleged offense, presents an ever recurring problem. The articles of which defendants complain can hardly be described as examples of unbiased, objective news reports, but they are not inflammatory, as were those considered by the Supreme Court in The People v. Hryciuk, 5 Ill2d 176, 125 NE2d 61. A further distinction between this case and Hryciuk is that the inflammatory articles there appeared during the trial, on the evening before the case went to the jury, while here defendants had ample opportunity to interrogate the jurors as to whether they had read the articles, and if so, whether they were influenced thereby.

Defendants were entitled to 30 peremptory challenges and the record does not show how many were used, and nothing appears in the record upon which to base the conclusion that the 12 jurors and the alternate accepted by defendants were not impartial, and disposed to render a fair verdict. On the basis of the record on voir dire examination, the denial of the motion for continuance was not an abuse of the trial court’s discretion. The People v. Brinn, 32 Ill2d 232, 204 NE2d 724.

During the course of the voir dire examination the State’s Attorney asked a venireman whether, if the State proved the defendants guilty beyond a reasonable doubt, he would “have any compulsion against finding a man guilty of crime, even though it means he might be imprisoned?” Defendants moved for a mistrial, and contend here that the court erred in denying the motion, although the question was stricken, and the jury instructed to disregard it.

The cases upon which defendants rely involve closing arguments to juries in which counsel for the People suggested the possibility of probation, and the Supreme Court held such reference to be prejudicial. The reason for so holding, is that a jury might be inclined to convict a defendant in a close case, if it thought his punishment might not be too severe. Here the converse situation is presented, the jury was apprised that a finding of guilty could result in defendants’ being imprisoned. The court properly struck the question, and did not err in denying the motion for mistrial.

The indictment charges the automobile stolen was the property of Lamoine D. Brown, and the certificate of title showed the owner to be Brown Tractor Sales by Lamoine D. Brown. There is no evidence that Brown Tractor Sales is a corporation, and although not clear from the record, it appears that Brown Tractor Sales is a trade name for an individual proprietorship by Lamoine D. Brown. Under the statutory definition of “owner,” c 38, § 15-2, Ill Rev Stats 1965, and the holdings in People v. Hansen, 28 Ill2d 322, 192 NE2d 359, and People v. Tomaszek, 54 Ill App2d 254, 204 NE2d 30, the proof of ownership was sufficient to support the conviction.

Defendants contend that because the indictment did not allege the serial number of the stolen vehicle, it was defective and will not support the conviction. The purpose of an indictment is to apprise a defendant of the exact crime with which he is charged, so that he may prepare his defense, and may plead the judgment of conviction, or acquittal, in bar of a second prosecution for the same offense. An indictment which charges the theft of a 1959 four-door Ford, names the date of the offense, the owner, and the place where the theft occurred meets that test, and the failure to include the serial number of the stolen automobile did not make the indictment fatally defective.

Defendants’ contention that the People failed to prove the value of the stolen automobile exceeded $150 requires a review of the valuation evidence adduced. Lamoine D. Brown, owner of the stolen automobile, described it as a 1959 four-door Ford, Fairlane 500 series, bearing a dealer’s license plate, and testified that in connection with his business he bought and sold used trucks, and perhaps one or two used automobiles each year. The State’s Attorney asked the value of the stolen car on the date of the theft, defense counsel objected on the ground that the witness was not properly qualified to express an opinion as to its value, and the objection was sustained. The witness was asked whether he sold the car subsequent to that date, and over the objection of defense counsel, was permitted to testify that it was sold for $200 eight months after the theft. No evidence was offered as to its condition at either the time of the theft, or the date of the sale, and the record is barren of any evidence of value as of the time of the theft.

Sections 2-7 and 2-11 of the Criminal Code of 1961 (c 38, §§ 2-7, 2-11, Ill Rev Stats 1965) define a felony to be an offense punishable by death or imprisonment in the penitentiary, and a misdemeanor as an offense other than a felony. It follows, therefore, that the “Penalty” provision in section 16-1 (c 38, § 16-1, Ill Rev Stats), by fixing the penalties which may be imposed for a specific offense, determines whether the specific offense is a felony or a misdemeanor. Section 3-1 (c 38, § 3-1, Ill Rev Stats 1965) requires proof of guilt beyond a reasonable doubt, and this degree of proof is necessary as to those elements of an offense which determine whether it is a felony or misdemeanor. In this case, absent proof beyond a reasonable doubt of the value of the property stolen, the theft was a misdemeanor and subject only to the punishment applicable thereto. The value which makes it a felony rather than a misdemeanor is the fair cash market value of the property at the place and at the time of the theft, People v. Stewart, 20 Ill2d 381, 169 NE2d 796, People v. Kelly, 66 Ill App2d 204, 214 NE2d 290, and evidence of the price for which it was sold does not meet the requirement of proof of value beyond a reasonable doubt.

Having concluded that the requisite proof of an element essential to making the offense a felony is lacking, the reviewing court must determine which of the powers conferred upon it by section 121-9 of the Criminal Code (c 38, § 121-9, Ill Rev Stats 1965) is here appropriate. The evidence of guilt of the theft of the automobile is overwhelming, and we are not, therefore, prepared to say the jury’s verdict on the issue of guilt was in any manner influenced by the testimony as to the price for which the automobile was sold eight months after the offense. Remandment, would, on the one hand, make possible the acquittal of the defendants on a charge of which they have been proved guilty beyond a reasonable doubt, and on the other hand, would give the People the opportunity to prove an element of the offense which could, and should very easily, have been proved on the trial, the record of which is here reviewed. A more just result will be achieved if we invoke the power conferred upon this court by section 121-9 to reduce the degree of the offense of which these defendants are clearly guilty and impose appropriate punishment. The judgment of the Circuit Court of Bond County is, therefore, modified, and insofar as it adjudges the defendants to be guilty of theft of property not exceeding $150 in value, the judgment is affirmed, and insofar as it purports to adjudge the defendants guilty of theft of property exceeding $150 in value, the judgment is reversed. The sentence imposed by the Circuit Court of Bond County is vacated and the cause is remanded to the Circuit Court of Bond County with directions to impose upon each defendant the following punishment: each defendant to be fined $500 and imprisoned for one year in a penal institution to be designated by the Circuit Court, other than the penitentiary.

Judgment modified and cause remanded with directions.

EBERSPACHER, J., concurs.

MORAN, J.,

dissenting.

On Thursday, March 11, 1965, three days before the commencement of the trial, the newspaper in question carried an account of the trial to be held on the following Monday, described the crime that these defendants were charged with and then went on to say that they had been arrested on April 2, 1964, in connection with the robbery of the Canteen Company of Alton, Illinois, having eluded officers in the underbrush in the bottoms near Old Ripley during the day. Three-fourths of the jury panel were thus informed that this trio was connected with a robbery unrelated to the crime for which they were to be tried.

Both the Federal and State Constitutions specifically provide that an accused has a right to a speedy public trial by an impartial jury. Chapter 38, paragraph 14-4 (b) allows the granting of a continuance when pretrial publicity has caused a prejudice against the defendant on the part of the community.

It would have been prejudicial misconduct for the State’s Attorney to show that the defendants were charged or sought in connection with the robbery described in the newspaper article. However, we say that it is not prejudicial to the defendants when a newspaper informs the jury before the trial about the very things which the prosecution is precluded from bringing out.

Innocent or guilty, a defendant is entitled to due process of law. These defendants were denied due process of law because they were not tried by an impartial jury. I would therefore send the case back to Bond County for a new trial.


author: MR. JUSTICE BURKE LYONS, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jose Luna, Defendant-Appellant.
    Gen. No. 49,662.
    First District, Second Division.
    April 12, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (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 Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

An indictment charged that on September 8, 1962, Roberto L. Alvarado, Jose Luna, Raul Esparza and Pete Perez committed the offense of the sale of narcotics to Paul W. Hemphill. A trial of Jose Luna resulted in a verdict of guilty as charged and a sentence to the State Penitentiary for a term of 15 to 30 years. He appeals from the judgment.

On the morning of September 7, 1962, Paul W. Hemp-hill, an Illinois Narcotics Inspector, was introduced to Jose Luna by an informer named Jerry Galloway. Hemp-hill was introduced as “Tommy,” [Hemphill’s testimony] or as “Paul,” [defendant’s testimony]. Luna and Hemp-hill discussed the sale of narcotics at $1,100 an ounce. Luna stated that the narcotics were of a very high grade and that one ounce could be cut into six ounces. A meeting was arranged for 9:00 that evening. At approximately 10:00 p. m., Luna entered the car of Hemphill and directed him to drive to the vicinity of 18th and Halsted Streets in Chicago. They entered a tavern, where Luna spoke to two men, Saginaw and Esparza. No sale was made that evening since a third man, Alvarado, was detained by the police on another charge. A second meeting was arranged for the following morning, September 8, 1962, at 10:00. Hemphill gave Luna $1,000 in prerecorded money. Luna and Hemphill drove to the vicinity of 18th and Halsted Streets. Luna walked away from the car. He met Saginaw and Alvarado. Alvarado left, but in 30 minutes returned and handed an envelope to Luna. The defendant returned to Hemphill’s car, entered and gave him the envelope. Hemphill drove a few blocks and signaled to other narcotic’s agents. Luna was arrested and part of the recorded money was found on his person. The envelope given by Luna to Hemphill was examined and found to contain narcotics.

The first point presented by the defendant is that the trial judge violated his rights to equal protection of the law as implemented by Ill Rev Stats 1965, c 38, § 121-13. The case was assigned to Judge Irving Landesman who sustained defendant’s motion to suppress the confession. Subsequently the case was assigned to Judge Charles R. Barrett and he presided during the trial: In the trial before Judge Barrett defendant testified. The defendant’s confession which had been suppressed was not introduced into evidence in the trial. It did not become a part of the record. The defendant was given a copy of the confession. The prosecutor interrogated the defendant as to questions propounded to him and answers that he made in the hearing on the motion to suppress the confession. This was for the purpose of impeaching the defendant by showing prior inconsistent testimony. We do not think any right of the defendant was violated by the court’s denial of his motion (presented after judgment) for a transcript of the hearing on the motion to suppress the confession. The official court reporter was available to him. A transcript of the proceedings at the hearing on the motion to suppress was also available to defendant at the time of trial. No motion for a transcript of these proceedings was made during the trial. In his written motion for a new trial the defendant did not mention any alleged prejudice for failure to furnish a transcript of the proceedings on the motion to suppress the confession.

The second point maintained by the defendant is that the court committed error in failing to correct the record. The confession was not introduced into evidence in the trial. On March 10, 1964, motions for a new trial and in arrest of judgment were denied and the defendant was sentenced. On January 13, 1965, appellant’s counsel moved to correct the record by making the confession a part thereof. Attached to the motion was the confession which by this procedure appears in the record. As the confession did not become a part of the trial record the court was right in refusing to have the confession made a part of the record.

The next point urged by the defendant is that the court committed reversible error by allowing the People to introduce evidence in violation of his constitutional rights. The defendant says that the State, under the camouflage of impeachment, in effect, introduced the confession into evidence; that the State introduced into evidence testimony given by defendant at the hearing to suppress the confession and that this testimony was in content identical with the confession, citing Safarik v. U. S., 62 F2d 892, 897 (8th Cir 1933). The propriety of the impeaching testimony cannot be tested by comparing the confession (which had been excluded by the ruling of Judge Landesman) with the impeachment testimony. The issue must be resolved by examination of the testimony on direct, cross-examination and in rebuttal. Defendant testified that Galloway often asked if he knew anyone who sold narcotics and on September 7, 1963, Galloway introduced him to Galloway’s partner, Hemphill. Hemp-hill and Galloway said that they wanted to do business and defendant arranged it with Esparza. The merchandise asked for was drugs. Esparza previously called defendant and said he had drugs to sell. The defendant stated that he did not know how much it would cost. Defendant further testified that on September 8, 1962, Hemphill gave him a bundle of money to give to Alvarado. In return for the money Alvarado gave defendant $100 and a brown paper package. The defendant delivered both to Hemphill but was told to keep the $100. Defendant testified that he did not know anything about the sale of drugs prior to this transaction. On cross-examination defendant said that he did not know how much money was given to him by Hemphill and he did not remember testifying on July 1, 1963 [the hearing on the motion to suppress] that he was given $1,000 and that he counted it. He also testified that he did not remember previously testifying that Hemphill gave him $1,000 to buy an ounce of heroin. Defendant further stated that he did not recall previously testifying that he kept $100 in his pocket when he returned with the package to Hemp-hill. In rebuttal it was stipulated that if the court reporter were called he would testify that on July 1, 1963, the defendant testified: (1) He was given $1,000 and counted the money, (2) He knew the $1,000 was to purchase one ounce of heroin, and (3) When he returned to Hemphill, defendant put $100 in his pocket.

Proof of inconsistent statements is proper to cast doubt on a witness’ testimony. People v. Morgan, 28 Ill2d 55, 63, 190 NE2d 755. Impeachment testimony is proper even though a defendant testifies that he does not remember giving prior testimony. People v. Bush, 29 Ill2d 367, 373, 194 NE2d 308. We think that the rebuttal evidence was properly admitted. The case of Safarik v. U. S., 62 F2d 892 (8th Cir 1933) is not applicable to the factual situation of the case at bar. There, although, a motion to suppress evidence was sustained, the government used statements made by the defendant in a written motion to suppress and affidavits attached thereto as admissions against interest. On appeal the court held that such a practice violated the Fourth and Fifth Amendments. In order to. avail himself of the Fourth Amendment the defendant was improperly required to waive his protection under the Fifth Amendment. In Heller v. U. S., 57 F2d 627, 629 (7th Cir 1932) the claim was made that testimony of the defendant on a motion to suppress was inadmissible for any purpose at trial. On review the court stated that if the statements in question were made out of court they were certainly admissible and the rule should not be different because made under oath and in court. The defendant therein, as in the case at bar, was not obligated to testify on the motion to suppress. The right to cross-examination is a basic part of our judicial system. Cross-examination would be unduly restricted should the courts hold that a witness’ credibility could not be impaired by evidence of prior inconsistent testimony. Proof of inconsistent statements made by People’s witnesses on a motion to suppress is an appropriate method of impeachment. A contrary rule should not be applied where the inconsistent statements were made by defendant who also elected to testify at the trial. Our Supreme Court went further in Miller v. People, 216 Ill 309, 312, 74 NE 743, in holding that statements and admissions of defendant at a first trial which resulted in a mistrial, were properly admitted in a second trial, although the defendant did not testify in the second trial. In the case at bar no testimony identical to the confession was admitted into evidence. The People were allowed to present rebuttal evidence as to inconsistent testimony at the hearing on the motion to suppress. We are of the opinion that the trial court did not err in allowing the State to introduce the impeaching testimony.

We turn to the contention of the defendant that the trial court prevented him from placing before the jury substantial and competent evidence that he was entrapped by a State special employee. The defendant was interrogated as to the content of conversations he had with Jerry Galloway, the special employee. The court sustained the People’s objection to this testimony-on the basis that it was hearsay. Defendant says that in this ruling the court was misled into reversible error. The defendant asserts that the conversation with the special employee was direct evidence on the issue of entrapment and that it was the only substantial evidence of entrapment available to the defendant. Under appropriate issues and facts a witness may testify as to the content of a conversation he had with an out of court declarant in order to demonstrate that the conversation induced his conduct. Defendant testified that he had known Galloway for 7 years and that Galloway asked him if he knew anyone who sold narcotics. The defendant testified that he saw Galloway with Hemphill on September 7, 1962. Galloway said that Hemphill was his partner and that they wanted to do business. Defendant agreed to tell them the price of the narcotics when he received a call from his friends and to take them to Esparza. Additional conversations with Galloway were excluded upon objection by the State that the conversations were hearsay. The defendant’s trial lawyer failed to make an offer of proof pertaining to the conversation between Galloway and Luna. No suggestion was made in the trial court that Galloway was a user of or had a need for narcotics or that he made persistent requests for narcotics supported by tales of suffering. No appeal to sympathy was alleged. Nothing was presented to apprise the trial court of an entrapment issue or of the purpose and materiality of the answers to the questions. Friendship with an informer does not raise the question of entrapment. People v. Hatch, 49 Ill App2d 177, 185, 199 NE2d 81. It was decided in People v. Wells, 25 Ill2d 146, 148, 182 NE2d 689, that although deception by governmental agents was used this does not comprise entrapment. The informer was not even present on the day of the sale. Defendant, Luna, exhibited a familiarity with narcotics traffic and a ready access to a supply source. The defendant was merely afforded the opportunity to commit a crime he was already predisposed to commit. Luna’s testimony tended to portray himself as an innocent middleman between the governmental agents and the peddlers of narcotics. The defendant testified that prior to his arrest he did not know that Hemphill was a Narcotic Inspector or that Galloway was an employee of the State Narcotic Control. After his arrest defendant indicated that he desired to work as an informer and was presented with the opportunity. The Narcotic enforcement authorities decided that he did not make a serious effort to help in their enforcement efforts.

The trial attorney for the defendant waived the opportunity afforded him of making an opening statement informing the court and jury what he expected the evidence to develop. The trial judge was of the opinion that no evidence was presented of the defense of entrapment. The court and jury could not know that the defendant was presenting the defense of entrapment unless he did so in the course of the trial. No entrapment issue was presented to the jury. This is consistent with the defendant’s testimony that he did not know until after his arrest that either Galloway or Hemphill was connected with government narcotics enforcement. The discussions about cooperation in helping to discover, arrest and prosecute the “higher-ups” in the narcotics traffic arose after the arrest and would relate to consideration which might be given to the defendant for his subsequent help in law enforcement. These discussions with the narcotic officers and the confession occurred after the arrest and do not affect the guilt or innocence of the defendant. We conclude that the trial judge did not err in excluding the answers to the questions propounded to the defendant as to his conversations with Galloway.

Finally the defendant insists that the trial judge committed reversible error by failing to instruct the jury in the defense of entrapment. We agree that if there exists any evidence supporting the theory of entrapment the defendant was entitled to an instruction thereon. The evidence shows that the defendant was familiar with the narcotics traffic, had ready access to a supply source and that he, in fact, introduced the inspector to that source and procured an ounce of heroin. His testimony shows that he did not know that either Galloway or Hemphill was a narcotic enforcement agent until his arrest following the sale of narcotics for which he was indicted. We find that since there was no evidence of entrapment, the trial judge was right in refusing to instruct the jury thereon.

For these reasons the judgment is affirmed.

Judgment affirmed.

BRYANT, P. J., concurs.

LYONS, J.,

dissenting.

I must disagree with the result reached by the majority.

The crucial issue to be decided in this case is whether the testimony of a defendant given in a hearing on a motion to suppress evidence, where the motion to suppress said evidence is sustained, can later be used against said defendant for purposes of impeachment. I feel the case of Safarik v. U. S., 62 F2d 892 (8th Cir 1933) is dispositive of the case at bar. In that case, the statements made by the defendant in a written motion to suppress- were ruled inadmissible as admissions against interest. Surely, admissions made by a defendant during the course of a hearing on a motion to suppress are more harmful to a defendant’s cause than admissions contained in a written motion. In the case at bar, defendant as in Safarik, supra, was forced to choose between the Fourth and Fifth Amendments. In order to avail himself of protection under the Fourth Amendment, defendant would have to waive his protection under the Fifth Amendment.

The majority seems to base the result reached on the theory that defendant was not obligated to testify during the hearing on the motion to suppress or take the stand during the trial. It is true defendant could have waived taking the stand in those instances. A defendant, however, should not be forced to choose between taking the stand during a hearing on a motion to suppress and waiving his right to testify during the course of the trial, in order to prevent his admissions from being used against him for the purpose of impeachment.

Heller v. U. S., 57 F2d 627, 629 (7th Cir 1932) is not applicable to the case at bar in that the principle enunciated in that case, that the testimony of a defendant during a hearing on a motion to suppress, is admissible for purposes of impeachment, was clearly obiter dictum.

It is my belief that the court committed reversible error by allowing the People to introduce evidence in violation of defendant’s constitutional rights. I feel, however, that this point raises a substantial constitutional question and should not be decided by this tribunal. It is my position, therefore, that this case be transferred to the Supreme Court for a determination of the constitutional issue involved.


author: MR. JUSTICE ABRAHAMSON

text:
    Paul Hahn, Plaintiff-Appellee, v. Dale Hahn, Defendant-Appellant.
    Gen. No. 65-124.
    Second District.
    April 29, 1966.

      John Demling, of Glen Ellyn, for appellant.
    Leren & Burek, of Wheaton, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of DuPage County, wherein the court entered an order modifying a prior decree of divorce and awarded the custody of the minor children of the parties to the father. The decree of divorce obtained by Dale Hahn was entered on May 5, 1965. Dale Hahn, the mother, was awarded custody of Douglas, then 4% years of age, and Darcy, then 21/2 years of age, with visitation rights granted to their father, Paul.

The trial court found from the evidence that shortly after the decree of divorce was entered Dale began living in open adultery with a married man. Between the date of the decree and the filing of the petition herein, it is uncontroverted that this man stayed overnight on many occasions in the residence which was the home of Dale and her two children. The witnesses who testified at the hearing before the court without a jury were numerous and their testimony was lengthy. No purpose would be served by reciting every detail.

The trial court in its determination found that the evidence of physical neglect or lack of affection on behalf of Dale toward her children was not compelling and that Dale gave her children adequate physical supervision. The decision of the trial judge was based on his finding that the actions of Dale and the man with whom she was involved showed disdain for the standards of morality accepted in the community and indicated an attitude which gave no assurance of Dale’s conduct in the future. The evidence discloses that since the petition was filed herein, Dale had rented her home, and that she and her children were living with her mother. It further discloses that the man with whom she was involved had accepted a position in Milwaukee, Wisconsin, and he was living there.

The changes in the living conditions of Dale and her friend appear to be the result of financial problems only. There is nothing to indicate that these changes were an effort to terminate the relationship.

Plaintiff resides with his parents, both of whom are employed. In the event of a change in custody his mother will stop work and provide the care for the children. There is no contention by Dale that Paul is not a fit and proper person to have custody of the children nor is the home of his parents inadequate to house the children.

We are called upon to review this factual situation to determine whether the mother is an unfit person to have the custody of her children and whether a change of custody would be for the best interest of the children. The court has a great responsibility and wide discretion in determining to which parent a child will be given. In consideration of their best interest, children of tender years are usually entrusted to the care of the mother, she being a fit and proper person. There must be compelling evidence proving the mother to be an unfit person to cause the custody to be denied her. Nye v. Nye, 411 Ill 408, 414, 105 NE2d 300.

It has been held that indulgence in moral indiscretions, where the children are leading a normal life are not grounds for a change of custody. Leary v. Leary, 61 Ill App2d 152, 209 NE2d 663. Nor is prior open adulterous conduct after the mother marries the paramour and reestablishes a good home grounds for a change. Nye v. Nye, supra. Giving birth to an illegitimate child by a mother who has custody of minor children by a dissolved marriage is not of itself a basis for changing the custody. Jayroe v. Jayroe, 58 Ill App2d 79, 82, 206 NE2d 266; Brown v. Brown (Abst.), 13 Ill App2d 56, 140 NE2d 528. In Wolfrum v. Wolfrum, 5 Ill App2d 471, 126 NE2d 34, however, the father was awarded the custody of the children where the record disclosed a shocking course of adulterous conduct by the mother with a married man where there was no assurance of a future marriage.

While the trial court found in this case that the evidence showed no sign of lack of affection nor was there evidence of physical neglect, certainly Dale’s conduct cannot be considered conducive to the proper moral training that children of tender years need. We agree with the trial court that the record here is void of evidence that would give any assurance that Dale intended to abandon her ways. In matters concerning the custody of infant children the court will not disturb the determination of the trial judge who has heard the evidence and has had an opportunity to observe the parties, unless it appears manifest injustice has been done. Rodely v. Rodely, 28 Ill2d 347, 350, 192 NE2d 347.

We cannot see that the order of the trial court in this instance is manifestly unjust. Judgment of the trial court is affirmed.

Judgment affirmed.

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