author: MR. PRESIDING JUSTICE DEMPSEY

text:
    James C. Wilborn & Sons, Inc., a Corporation, Plaintiff-Appellant, v. William Vincent Heniff, et al., Defendants-Appellees.
    Gen. No. 51,256.
    First District, Third Division.
    April 25, 1968.
    Rehearing denied May 28, 1968.

      Lewis W. Schlifkin, of Chicago (Edward A. Berman, of counsel), for appellant.
    Mortimer & Hoffman, and Richard P. Szarmack, of Chicago, for appellees.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

James C. Wilborn & Sons, Inc., the plaintiff, is a manufacturer of window sash and frames. Among its products is a wooden window with sash that tilts to the inside and is removable from the inside of a house — it is known as the “tilt-sash” window. The defendants, William Heniff, Joseph Vilcek and Joseph Skopec are former employees of Wilborn. Brandex Tilt-Sash, the corporate defendant, was organized by Heniff and by another employee of Wilborn, Peter Miller. As its name indicates, Brandex also makes a tilt-sash window.

In its complaint Wilborn charged the defendants with conspiracy and with pirating its trade secrets, customers’ list, price schedules and business methods; inducing key employees to leave its employment; appropriating its samples; and manufacturing and selling windows which were identical with its own and palming them off as those of Wilborn. It prayed for an accounting and for a permanent injunction restraining the defendants from continuing their competition.

The charges were denied by the defendants and the case was referred to a master in chancery. The master’s conclusions were in favor of the defendants. The chancellor also found that the equities were with the defendants, adopted the master’s findings and recommendations and entered judgment accordingly. The costs and the master’s fee were assessed against the plaintiff. (In a prior appeal in this case, James C. Wilborn & Sons, Inc. v. Heniff, 56 Ill App2d 217, 205 NE2d 771 (1965), a temporary injunction was denied Wilborn; while in another suit, James C. Wilborn & Sons, Inc. v. Brandex Tilt Sash, Inc., 380 F2d 44 (1967), it was held that Wilborn’s complaint for patent infringement stated a cause of action which gave the Federal Court jurisdiction of the subject matter, notwithstanding the factual determination by the chancellor in the present case that the equities were with the defendants.)

On appeal Wilborn contends that the court erred in not finding that it had an exclusive license to make and sell the tilt-sash window in Cook and surrounding counties: that the defendants were guilty of unfair competition, that they conspired to destroy its business, and that they appropriated its trade secret and trademark. Other contentions are that the master ruled improperly on matters of evidence and that the court erred in setting the fee to be paid to the master.

Wilborn started making tilt-sash windows in 1959. It makes this product pursuant to a license granted that year by the Tilt Sash Corporation. In making these windows it uses an alleged trade secret called a “variable blind stop.” A blind stop is a strip of wood attached to a window frame to keep the sash in position. The “variable blind stop” is a vertical piece of wood of varying dimensions; it enables the sash to compensate for different wall thicknesses.

Heniff became a salesman for Wilborn about the time Wilborn received its license from Tilt Sash. Prior to this he had been employed as a salesman by the Five Star Window Company of Peru, Illinois. Peter Miller joined Wilborn as a salesman in 1961. In the summer of 1963 Heniff and Miller formed the Brandex company. Miller withdrew from Wilborn in September but Heniff did not leave until January, 1964. While employed by Wilborn he purchased machinery for Brandex and otherwise participated in setting up its organization. Vilcek, foreman of the frame department at Wilborn, and Skopec, foreman of its sash department, (and three other employees) joined Brandex around the first of April 1964. Vilcek and Skopec testified that they were unhappy at Wilborn and, without being solicited, approached Heniff about working for Brandex. Heniff testified that he decided to leave Wilborn when he was informed that his sales commission would be cut in half.

Brandex started production in March 1964. Its window, which was made and distributed in the same territory as Wilbom’s, was similar to Wilborn’s. The mechanism and construction were the same, including the thickness of the blind stops. Two witnesses, who were in the sash and millwork business, testified that prospective customers would tend to be confused by the two units and could buy one thinking they were getting the other. Three witnesses, also in the same trade, testified that buyers would not be confused. They pointed out differences between the windows such as the trim and color and the material used in the hardware and pins. The emblems used on the two windows were distinctive in title, shape, color and typography, but both featured the words “tilt-sash” and bore the same trademark. However, there was testimony that the words “tilt-sash” were used by other window manufacturers including one (a maker of aluminum windows) in the Chicago area. The tilt-sash window was a patented product and the display of the trademark was required of all those who made or sold the window.

Soon after Brandex started its operation, Miller left a sample of the Brandex window with a customer to whom he had sold Wilborn windows. The customer turned the window over to Wilborn. The evidence showed that, although this window was distinguishable from Wilborn’s, it contained some Wilbom parts and bore the Wilbom emblem. Whether these parts were taken from Wilborn or were obtained on the market was not established. There is no evidence in the record that this mockup window was used for the purpose of misrepresentation or deception. The fact that Wilborn’s emblem was on it negates such a conclusion. The defendants’ explanation was that the sample window was made in haste at the start of its business, when some Brandex parts were still unavailable, and was assembled to demonstrate the workability of its planned product.

A vice-president of Wilborn testified that the “variable blind stop” was a trade secret not used by anyone else in the industry. On the other hand, he testified that the Five Star Window Company used a blind stop that was somewhat similar to Wilborn’s and that a company in Minnesota was using three of the four sizes of Wilborn blind stops. He further testified that the variable blind stop was pictured in Wilborn advertising; that cross-sectional drawings of the blind stop and its application were published in Wilbom catalogues; that the blind stop was not kept confidential and that anyone in the trade who wanted to make it would only have to follow the specifications in the catalogues.

The fact that a customers list was used was not disputed. The only difference was in the contentions of the parties in regard to the ownership of the list. Wilbom claimed that a private list was taken and used. The defendants claimed that the list belonged to Heniff. Heniff had brought a list of customers with him when he came to Wilborn; but Miller was given a list by Wilborn. While most of Brandex’ customers were also customers of Wilborn, the evidence disclosed that Heniff and Miller were the only Wilborn salesmen handling the tilt-sash line and that they knew all Wilborn’s customers. Further, as salesmen they received a monthly report of the commissions they had earned together with a list of those who had made purchases the preceding month.

Unfair competition exists where the defendant’s conduct is likely to cause confusion in the trade as to the source of the products or is likely to lead the public to believe that the defendant is in some way connected with the plaintiff. Lady Esther v. Lady Esther Corset Shoppe, 317 Ill App 451, 46 NE2d 165 (1943). A conspiracy is a combination of persons to do an unlawful act or to perform a lawful act in an unlawful way. Reel v. City of Freeport, 61 Ill App2d 448, 209 NE2d 675 (1965). A conspiracy to injure another’s business, when executed to his damage, is actionable. See Doremus v. Hennessy, 176 Ill 608, 52 NE 924 (1898). A trade secret is a plan or process, tool, mechanism or compound known only to its owner and those employees to whom it is necessary to confide. Snyder v. Hamilton, 39 Ill App2d 352, 189 NE2d 97 (1963).

An employee is under an obligation not to divulge the trade secrets of his employer imparted to him in confidence. Schulenburg v. Signatrol, Inc., 50 Ill App2d 402, 200 NE2d 615 (1964). He is also under a duty not to take and use a customer list compiled by his employer, Boylston Coal Co. v. Rautenbush, 237 Ill App 550 (1925), though if he acts in good faith and without misrepresentation he may solicit customers whose names are obtained from memory. American Cleaners & Dyers v. Foreman, 252 Ill App 122 (1929). Furthermore, an agent must not put himself in a position which is adverse to that of his principal during the continuance of the agency. Moore v. Pinkert, 28 Ill App2d 320, 171 NE2d 73 (1961). Acts constituting violations of these duties are actionable in themselves, though they may also constitute part of an actionable conspiracy to injure the business of another.

The master found that the defendants were not guilty of unfair competition; that they did not commit any actionable breach of trust by reason of their employment; that the “variable blind stop” was not a trade secret and that the only customers list in evidence was the one introduced by the defendants themselves and that this had been substantially prepared by Heniff before going to work for Wilborn. None of these findings was contrary to the weight of the evidence — let alone its manifest weight. Disputed questions of fact resolved by a master and approved by a chancellor will not be set aside unless they are against the manifest weight of the evidence. Guttman v. Schiller, 39 Ill App2d 58, 187 NE2d 315 (1963).

The evidence did not sustain the plaintiff’s allegation that the defendants competed unfairly or conspired to destroy the plaintiff’s business. A review of the evidence indicates that the defendants merely exercised their right to leave one employment and form or join a rival business. Thus, this case is distinguishable from those cited by the plaintiff. The latter involve either the appropriation of a bona fide trade secret (e. g., Schulenburg v. Signatrol, Inc., supra) or a proven plot to destroy another’s business (Duane Jones Co. v. Burke, 306 NY 172, 117 NE2d 237 (1954)). The defendant, Heniff, did not violate his duty of loyalty to Wilborn by forming Brandex and purchasing machinery for it while working for Wilborn. It is not necessarily a breach of duty for an agent to form a rival concern and purchase machinery for it while working for his principal (see e. g., Greenburg v. S. D. Childs & Co., 147 Ill App 477 (1909)), though it would be for an agent to continue to work for his principal after a rival corporation which he also served as agent begins business. Heniff immediately left Wilborn when Brandex commenced business. The defendants did not divulge a trade secret of their employer imparted to them in confidence as there was no trade secret for the defendants to disclose. The “variable blind stop” did not constitute a trade secret because it was already known and used by others in the industry and in addition was disclosed to the trade through the plaintiff’s advertising and catalogues. The evidence did not sustain the plaintiff’s allegation that the defendants appropriated Wilborn samples or material and it did not sustain the allegation that they misappropriated its list of customers.

A basic factor in the master’s finding that the defendants did not engage in unfair competition was his further finding that the Brandex company had as much right to use the tilt-sash name and trademark as Wilborn. This was the primary issue between the parties. The license Wilborn obtained from the Tilt Sash Corporation gave it the exclusive right to make and assemble the tilt-sash window in Cook and eight other counties in northern Illinois and Lake County, Indiana. Tilt Sash received its authority from the Western Engineering Trust — a trust which held the patents on the window guides and sash. Brandex obtained a license to make the window from the T. W. Sommer Company. Sommer received its authority from Western. Both Tilt Sash and Sommer were authorized by Western to issue sublicenses. The pivotal question at the hearing was whether Tilt Sash had the authority to grant an exclusive license to Wilborn.

The background facts are substantially these: The trustees of Western Engineering Trust were Michael J. Nardulli, Angelo F. Naples and Peter F. Nardulli. Michael Nardulli was the inventor of the tilt-sash window and was the managing officer of the trust. On October 1, 1953, Western granted a nonexclusive license to manufacture tilt-sash windows to the D. W. Company (also known as the Dodge Window Company). The president of the D. W. Company was Thurman J. Dodge. In the year 1956, at the time the 1953 contract expired, Dodge was the president of the D. W. Company, Michael Nardulli was vice-president and Naples was secretary. In February 1958, John J. Amos, who had bought 50 percent of the company’s stock, became its president. Naples continued on as secretary, and he, Dodge and Nardulli continued as directors. A fifth director, who came into the company with Amos, was Paul A. Cavett. Later in 1958 the name of the company was changed to Tilt Sash. It was Wilborn’s contention that the D. W. Company entered into a new agreement with Western which gave it the exclusive license to make the tilt-sash window and that this agreement was dated October 31, 1956. No contract of this date, and no exclusive contract of any date, was produced by Wilborn.

In an attempt to establish the existence of the October 31, 1956, contract Wilborn called six witnesses. Three of its witnesses said they remembered seeing such a contract; three of its witnesses said there was no such contract. Amos testified that in 1958, the year he became associated with the D. W. Company, he saw the contract on two occasions and that he again saw it in 1959. He also said that in January 1958 Michael Nardulli told him that there was such a contract. Cavett testified that in 1958 he saw an exclusive contract which was dated October 31, 1956. An attorney for another window manufacturer, who represented his company in 1959 in a matter involving Tilt Sash, stated progressively (1) that he did not see an exclusive license agreement between Western and Tilt Sash; (2) that he saw an agreement but did not remember its contents; (3) that he believed it was an exclusive agreement, and (4) that he was positive it was an exclusive agreement. In contrast, Dodge, Nardulli and Naples testified that there was no contract bearing the date October 31, 1956, and that Tilt Sash never received an exclusive license of any kind from Western. They said that a contract was agreed upon in 1956 which was identical with that of 1953 except that it added some patents and modified the units that the D. W. Company had to purchase and the royalties it had to pay. They testified that the new contract was executed on December 31, 1956, and that this contract remained in force until June 1, 1958, when it was again modified, this time at the request of Amos.

The contracts of December 31, 1956, and of June 1, 1958, were received in evidence. Neither contract provided for an exclusive license.

In a further effort to establish an October 31, 1956, contract, the plaintiff questioned Dodge, Nardulli and Naples about the D. W. and Tilt Sash corporate minutes. Their attention was called to minutes which referred to an exclusive licensing agreement dated October 31, 1956. For example, the minutes of November 1, 1956, stated:

“The chair stated that the purpose of the meeting was to approve and accept Exclusive License Agreement from Western Engineering Trust, dated October 81,1956.
“The chair explained that the Exclusive License Agreement gives Dodge Window Company the exclusive right for the manufacture, sale and right to sublicense, of patents covering sash guides and related window structures.
“After reviewing the License Agreement, the following resolution was unanimously carried:
“RESOLVED:
“That Dodge Window Company accept the Exclusive License Agreement dated October 31, 1956, between Dodge Window Company and Western Engineering Trust.
M
• • •
U
AFN Angelo F. Naples
Secretary
“Approved:
“TJD Thurman J. Dodge
“MJN Michael J. Nardulli.”

The witnesses testified that the minutes did not accurately reflect the true picture. It was explained that while the date of October 31, 1956, was in the minutes and while an exclusive license was discussed, no agreement was reached with Western as of that date; that a final agreement did not materialize until December 31, 1956. It was further suggested, by way of explanation for the appearance in later minutes of the October 31st date and the word “exclusive,” that an initial error had been carried over into subsequent records.

More evidence on the subject was produced by the defendants. An attorney who represented Amos in his 1958 acquisition of the D. W. Company testified that he did not recall an exclusive license dated October 31, 1956. Moreover, a letter which he had written in March 1958 acknowledged that there had been placed in his hands an:

“Executed copy of Agreement, dated December 31, 1956, between Western Engineering Trust and D. W. Co., whereby Western Engineering grants certain licenses to D. W. Co. for certain sash guides and window sash construction embodying inventions covered by the licensor’s patents.”

The defendants introduced another letter in evidence. This one was written by Western’s patent attorney and a copy of it had been sent to Amos. The letter was written more than a year before Brandex was organized and was about a possible patent infringement which was of concern to Western and Wilbom. The attorney pointed out that Western would have to be the sole plaintiff and responsible for fees and costs in any patent litigation because the D. W. Company did not hold an exclusive license.

Wilborn concedes that in order to sustain its claim to an exclusive license it must rely upon the agreement between Tilt Sash and Western. The master concluded that the testimony of Wilborn’s own witnesses conclusively established that Western never granted an exclusive license to Dodge Window or to Tilt Sash. A painstaking review of the whole record and an examination of the exhibits (those refused as well as those received in evidence) convinces us that the finding of the master and its approval by the chancellor were completely justified. Since Tilt Sash was not granted an exclusive license by Western it had no authority to grant an exclusive license to Wilborn. Since Wilborn did not possess an exclusive license it cannot complain that the defendants used the tilt-sash name, patents and trademark.

Wilborn more than once offered the corporate minutes in evidence, but objections were made and the master sustained the objections. Wilborn assigns this as error. It principally maintains that the master erred in refusing to permit it to use the minutes to refresh the memories of its witnesses. Only once, however, in arguing in support of its motions to introduce the exhibits, did the plaintiff state that its purpose was the refreshment of a witness’ recollection. This witness, Thurman Dodge, had not been asked if his memory needed refreshing, and he did not state that his memory was exhausted; nor did the plaintiff claim surprise at his testimony. Despite the lack of a proper foundation the exhibit was used to refresh his memory. He stated: “I have just read this document and [the statement therein] was a true statement at that time. . . .”

Furthermore, the plaintiff freely used the minutes for the purpose of refreshing the witnesses’ memories. The three witnesses who stated that Tilt Sash did not have an exclusive license and had no contract with Western dated October 31, 1956, were shown those minutes which contained references to such a license and contract. After looking at some of the exhibits, Dodge and Naples stated that their recollections were refreshed, while Nardulli stated that his was not refreshed. Thus, it is clear that the real reason behind the plaintiff’s persistent questioning of its own witnesses was not to refresh their memories and was not because it was taken by surprise by their adverse testimony, but was an attempt to impeach their testimony and to thereby indirectly establish the existence of an October 31, 1956, contract.

The plaintiff succeeded in making the point that the minutes tended to contradict the witnesses’ testimony and it thus got the ultimate value out of their use. The master was fully exposed to them. The complete contents of those which were most crucial were repeatedly disclosed during the hearing; the minutes were read and reread, frequently aloud; their significant passages were referred to and re-referred to; the most important ones were also attached to the plaintiff’s complaint. It is apparent from the record that they would not have affected the master’s judgment if he had admitted them in evidence. It is apparent that the master believed the testimony of Wilborn’s own witnesses, Dodge, Nardulli and Naples, who were in the best position to know whether there was an exclusive license and an October 31, 1956, contract; he ruled that the contracts before him— those of December 31, 1956, and of June 1, 1958 — established the Tilt Sash-Western agreement, not a purported contract, whose very existence was in dispute. The plaintiff was in nowise prejudiced by the exclusion of the corporate minutes.

The final contention of the plaintiff is that the chancellor erred in assessing the master’s fee. The master did not itemize the time spent on the charges comprising his report and because of this the plaintiff contends that his fee should be disallowed. The defendants respond that the transcript of proceedings reveals all the hearings held by the master, the witnesses present at the hearings and the evidence offered, and that this is an adequate breakdown of the services performed. No authority is cited in support of this response. The master apparently did not think the defendants’ generalization was an adequate answer to the plaintiff’s attack and he asked for and was granted leave to file suggestions in support of the decree fixing his fee. He argues that the plaintiff waived its right to assign lack of itemization as error because in the trial court its only objection was that the fees were improper and excessive. The master also states that he testified that he spent in excess of 175 hours on the case and that the plaintiff did not cross-examine him.

In Clokey v. Wabash Ry. Co., 353 Ill 349, 187 NE 475 (1933), the court said:

“It is the law that the fees of the master in chancery should be itemized, and if found proper by the court it shall fix such allowance; also, that an allowance of the master in chancery’s fees should not be made in gross.”

In Fitchburg Steam Engine Co. v. Potter, 211 Ill 138, 71 NE 933 (1904), the court said:

“The parties who are called upon to pay the master should not be required to defend against demands for amounts in gross, but have the right to know the specific service for which they are to be called upon to make payment. The claim of the master should be so itemized as to distinctly show the service which he has rendered for which he claims the right to make a charge.”

In Litwin v. Litwin, 375 Ill 90, 30 NE2d 619 (1940) the master’s certification for fees, like the master’s certification in the present case, was for: “Obtaining files; examining order of reference; docketing cause, setting same for hearing; attending hearings; hearing and considering testimony and pleadings and preparing report. . . .” The court held that itemization of masters’ fees is required and stated that where a charge is made in a lump sum nothing would be allowed for the services covered by the gross charge. For other cases in which nothing was allowed a master who failed to itemize his charges see: Norton v. Jordan, 360 Ill 419, 196 NE 475 (1935) and Wirzbicky v. Dranicki, 235 Ill 106, 85 NE 396 (1908).

In support of his argument that the plaintiff’s objection has been waived, the master cites the case of Eulette v. Zilske, 222 Ill App 128 (1921) in which it was said: “It is contended that the master’s fees were not properly itemized. No objections or exceptions were made on this subject. The contention is therefore untenable.” However, the court in Bentley v. Ross, 250 Ill 182, 95 NE 182 (1911) held otherwise. The court said:

“The plaintiff in error now urges that the master’s fees were improperly allowed for the reason that they were not itemized as required by law. Defendant in error insists that inasmuch as the plaintiff in error only objected to the master’s fees in the trial court for the reason that they were unreasonable and excessive, he cannot be heard now to object on the sole ground that they were not itemized. . . .
“. . . It would be impossible for the court to pass upon an objection that the fees claimed were unreasonable and excessive without having before it an itemized statement of the fees claimed. An objection, in a case where the master presents his claim in a lump sum, on the ground that it is unreasonable and excessive would necessarily include an objection that the fees were not itemized.”

A court of review has the discretion whether to remand a case for further proceedings on the question of fees. Morris v. North Evanston Manor Bldg. Corp., 319 Ill App 298, 49 NE2d 646 (1943). Despite the failure of the master to itemize his charges, this case is a proper one for remandment. The record is 3,088 pages long, the exhibits are numerous, and the abstract consists of 247 pages. When examined by the chancellor the master swore that he spent 175 hours on all aspects of the case. It would be unjust to deprive him of compensation for his hours of labor. The cause will, therefore, be returned to the trial court with directions to permit the master to amend his certificate and properly submit his charges and to permit the parties to raise objections thereto if they see fit. With this exception the decree is affirmed.

Affirmed in part and reversed in part. Remanded with directions.

SCHWARTZ and SULLIVAN, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE SULLIVAN

license: Public Domain

text:
    William Shlensky, on Behalf of and as a Representative of Chicago National League Ball Club (Inc.), Plaintiff-Appellant, v. Philip K. Wrigley, et al., and Chicago National League Ball Club (Inc.), Defendants-Appellees.
    Gen. No. 51,750.
    First District, Third Division.
    April 25, 1968.

      Milton I. Shadur and Neil H. Adelman, of Chicago (Robert Plotkin, Ronald S. Miller, David J. Krupp, and Abner J. Mikva, of counsel), for appellant.
    Sidley, Austin, Burgess & Smith, and Arthur Morse, of Chicago (James E. S. Baker, Edward Slovick, and Alexander C. Allison, of counsel), and Samuel W. Block and Kenneth S. Brown, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellees.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a dismissal of plaintiff’s amended complaint on motion of the defendants. The action was a stockholders’ derivative suit against the directors for negligence and mismanagement. The corporation was also made a defendant. Plaintiff sought damages and an order that defendants cause the installation of lights in Wrigley Field and the scheduling of night baseball games.

Plaintiff is a minority stockholder of defendant corporation, Chicago National League Ball Club (Inc.), a Delaware corporation with its principal place of business in Chicago, Illinois. Defendant corporation owns and operates the major league professional baseball team known as the Chicago Cubs. The corporation also engages in the operation of Wrigley Field, the Cubs’ home park, the concessionaire sales during Cubs’ home games, television and radio broadcasts of Cubs’ home games, the leasing of the field for football games and other events and receives its share, as visiting team, of admission moneys from games played in other National League stadia. The individual defendants are directors of the Cubs and have served for varying periods of years. Defendant Philip K. Wrigley is also president of the corporation and owner of approximately 80% of the stock therein.

Plaintiff alleges that since night baseball was first played in 1935 nineteen of the twenty major league teams have scheduled night games. In 1966, out of a total of 1,620 games in the major leagues, 932 were played at night. Plaintiff alleges that every member of the major leagues, other than the Cubs, scheduled substantially all of its home games in 1966 at night, exclusive of opening days, Saturdays, Sundays, holidays and days prohibited by league rules. Allegedly this has been done for the specific purpose of maximizing attendance and thereby maximizing revenue and income.

The Cubs, in the years 1961-65, sustained operating losses from its direct baseball operations. Plaintiff attributes those losses to inadequate attendance at Cubs’ home games. He concludes that if the directors continue to refuse to install lights at Wrigley Field and schedule night baseball games, the Cubs will continue to sustain comparable losses and its financial condition will continue to deteriorate.

Plaintiff alleges that, except for the year 1963, attendance at Cubs’ home games has been substantially below that at their road games, many of which were played at night.

Plaintiff compares attendance at Cubs’ games with that of the Chicago White Sox, an American League club, whose weekday games were generally played at night. The weekend attendance figures for the two teams were similar; however, the White Sox week-night games drew many more patrons than did the Cubs’ weekday games.

Plaintiff alleges that the funds for the installation of lights can be readily obtained through financing and the cost of installation would be far more than offset and recaptured by increased revenues and incomes resulting from the increased attendance.

Plaintiff further alleges that defendant Wrigley has refused to install lights, not because of interest in the welfare of the corporation but because of his personal opinions “that baseball is a ‘daytime sport’ and that the installation of lights and night baseball games will have a deteriorating effect upon the surrounding neighborhood.” It is alleged that he has admitted that he is not interested in whether the Cubs would benefit financially from such action because of his concern for the neighborhood, and that he would be willing for the team to play night games if a new stadium were built in Chicago.

Plaintiff alleges that the other defendant directors, with full knowledge of the foregoing matters, have acquiesced in the policy laid down by Wrigley and have permitted him to dominate the board of directors in matters involving the installation of lights and scheduling of night games, even though they knew he was not motivated by a good faith concern as to the best interests of defendant corporation, but solely by his personal views set forth above. It is charged that the directors are acting for a reason or reasons contrary and wholly unrelated to the business interests of the corporation; that such arbitrary and capricious acts constitute mismanagement and waste of corporate assets, and that the directors have been negligent in failing to exercise reasonable care and prudence in the management of the corporate affairs.

The question on appeal is whether plaintiff’s amended complaint states a cause of action. It is plaintiff’s position that fraud, illegality and conflict of interest are not the only bases for a stockholder’s derivative action against the directors. Contrariwise, defendants argue that the courts will not step in and interfere with honest business judgment of the directors unless there is a showing of fraud, illegality or conflict of interest.

The cases in this area are numerous and each differs from the others on a factual basis. However, the courts have pronounced certain ground rules which appear in all cases and which are then applied to the given factual situation. The court in Wheeler v. The Pullman Iron & Steel Co., 143 Ill 197, 207, 32 NE 420 said:

“It is, however, fundamental in the law of corporations, that the majority of its stockholders shall control the policy of the corporation, and regulate and govern the lawful exercise of its franchise and business. . . . Every one purchasing or subscribing for stock in a corporation impliedly agrees that he will be bound by the acts and proceedings done or sanctioned by a majority of the shareholders, or by the agents of the corporation duly chosen by such majority, within the scope of the powers conferred by the charter, and courts of equity will not undertake to control the policy or business methods of a corporation, although it may be seen that a wiser policy might be adopted and the business more successful if other methods were pursued. The majority of shares of its stock, or the agents by the holders thereof lawfully chosen, must be permitted to control the business of the corporation in their discretion, when not in violation of its charter or some public law, or corruptly and fraudulently subversive of the rights and interests of the corporation or of a shareholder.”

The standards set in Delaware are also clearly stated in the cases. In Davis v. Louisville Gas & Electric Co., 6 NJ Misc 706, 142 A 654, a minority shareholder sought to have the directors enjoined from amending the certificate of incorporation. The court said on page 659:

“We have then a conflict in view between the responsible managers of a corporation and an overwhelming majority of its stockholders on the one hand and a dissenting minority on the other — a conflict touching matters of business policy, such as has occasioned innumerable applications to courts to intervene and determine which of the two conflicting views should prevail. The response which courts make to such applications is that it is not their function to resolve for corporations questions of policy and business management. The directors are chosen to pass upon such questions and their judgment unless shown to be tainted with fraud is accepted as final. The judgment of the directors of corporations enjoys the benefit of a presumption that it was formed in good faith and was designed to promote the best interests of the corporation they serve.” (Emphasis supplied.)

Similarly, the court in Toebelman v. Missouri-Kansas Pipe Line Co., 41 F Supp 334, said at page 339:

“The general legal principle involved is familiar. Citation of authorities is of limited value because the facts of each case differ so widely. Reference may be made to the statement of the rule in Helfman v. American Light & Traction Company, 121 NJ Eq 1, 187 A 540, 550, in which the Court stated the law as follows: Tn a purely business corporation . . . the authority of the directors in the conduct of the business of the corporation must be regarded as absolute when they act within the law, and the court is without authority to substitute its judgment for that of the directors.’ ”

Plaintiff argues that the allegations of his amended complaint are sufficient to set forth a cause of action under the principles set out in Dodge v. Ford Motor Co., 204 Mich 459, 170 NW 668. In that case plaintiff, owner of about 10% of the outstanding stock, brought suit against the directors seeking payment of additional dividends and the enjoining of further business expansion. In ruling on the request for dividends the court indicated that the motives of Ford in keeping so much money in the corporation for expansion and security were to benefit the public generally and spread the profits out by means of more jobs, etc. The court felt that these were not only far from related to the good of the stockholders, but amounted to a change in the ends of the corporation and that this was not a purpose contemplated or allowed by the corporate charter. The court relied on language found in Hunter v. Roberts, Throp & Co., 83 Mich 63, 47 NW 131, 134, wherein it was said:

“Courts of equity will not interfere in the management of the directors unless it is clearly made to appear that they are guilty of fraud or misappropriation of the corporate funds, or refuse to declare a dividend when the corporation has a surplus of net profits which it can, without detriment to its business, divide among its stockholders, and when a refusal to do so would amount to such an abuse of discretion as would constitute a fraud or breach of that good faith which they are bound to exercise toward the stockholders.”

From the authority relied upon in that case it is clear that the court felt that there must be fraud or a breach of that good faith which directors are bound to exercise toward the stockholders in order to justify the courts entering into the internal affairs of corporations. This is made clear when the court refused to interfere with the directors’ decision to expand the business. The following appears on page 684:

“We are not, however, persuaded that we should interfere with the proposed expansion of the business of the Ford Motor Company. In view of the fact that the selling price of products may be increased at any time, the ultimate results of the larger business cannot be certainly estimated. The judges are not business experts. It is recognized that plans must often be made for a long future, for expected competition, for a continuing as well as an immediately profitable venture. ... We are not satisfied that the alleged motives of the directors, in so far as they are reflected in the conduct of the business, menace the interests of the shareholders.” (Emphasis supplied.)

Plaintiff in the instant case argues that the directors are acting for reasons unrelated to the financial interest and welfare of the Cubs. However, we are not satisfied that the motives assigned to Philip K. Wrigley, and through him to the other directors, are contrary to the best interests of the corporation and the stockholders. For example, it appears to us that the effect on the surrounding neighborhood might well be considered by a director who was considering the patrons who would or would not attend the games if the park were in a poor neighborhood. Furthermore, the long run interest of the corporation in its property value at Wrigley Field might demand all efforts to keep the neighborhood from deteriorating. By these thoughts we do not mean to say that we have decided that the decision of the directors was a correct one. That is beyond our jurisdiction and ability. We are merely saying that the decision is one properly before directors and the motives alleged in the amended complaint showed no fraud, illegality or conflict of interest in their making of that decision.

While all the courts do not insist that one or more of the three elements must be present for a stockholder’s derivative action to lie, nevertheless we feel that unless the conduct of the defendants at least borders on one of the elements, the courts should not interfere. The trial court in the instant case acted properly in dismissing plaintiff’s amended complaint.

We feel that plaintiff’s amended complaint was also defective in failing to allege damage to the corporation. The well pleaded facts must be taken as true for the purpose of judging the sufficiency of the amended complaint. (Highway Ins. Co. v. Korman, 40 Ill App2d 439, 442, 190 NE2d 124.) However, one need not accept conclusions drawn by the pleader. (Nagel v. Northern Illinois Gas Co., 12 Ill App2d 413, 420, 139 NE2d 810.) Furthermore, pleadings will be construed most strongly against the pleader prior to a verdict or judgment on the merits. New Amsterdam Cas. Co. v. Gerin, 9 Ill App2d 545, 133 NE2d 723.

There is no allegation that the night games played by the other nineteen teams enhanced their financial position or that the profits, if any, of those teams were directly related to the number of night games scheduled. There is an allegation that the installation of lights and scheduling of night games in Wrigley Field would have resulted in large amounts of additional revenues and incomes from increased attendance and related sources of income. Further, the cost of installation of lights, funds for which are allegedly readily available by financing, would be more than offset and recaptured by increased revenues. However, no allegation is made that there will be a net benefit to the corporation from such action, considering all increased costs.

Plaintiff claims that the losses of defendant corporation are due to poor attendance at home games. However, it appears from the amended complaint, taken as a whole, that factors other than attendance affect the net earnings or losses. For example, in 1962, attendance at home and road games decreased appreciably as compared with 1961, and yet the loss from direct baseball operation and of the whole corporation was considerably less.

The record shows that plaintiff did not feel he could allege that the increased revenues would be sufficient to cure the corporate deficit. The only cost plaintiff was at all concerned with was that of installation of lights. No mention was made of operation and maintenance of the lights or other possible increases in operating costs of night games and we cannot speculate as to what other factors might influence the increase or decrease of profits if the Cubs were to play night home games.

Nagel v. Northern Illinois Gas Co., supra, was a stockholder’s derivative action for the rescission of a contract of the corporation. The court said on page 421:

“They allege that by these transactions ‘Edison gave to Northern assets, rights and benefits of a value in excess of $5,000,000’ and received in return, under the Final Separation Contract, assets, rights and benefits of a net value of less than $50,000. These allegations are mere conclusions of the pleader and not an averment of the fact of gross inadequacy of consideration, unless warranted by the provisions of the contract and the well pleaded facts in the amended complaint consistent with the contract.”

Similarly, in the instant case, plaintiff’s allegation that the minority stockholders and the corporation have been seriously and irreparably damaged by the wrongful conduct of the defendant directors is a mere conclusion and not based on well pleaded facts in the amended complaint.

Finally, we do not agree with plaintiff’s contention that failure to follow the example of the other major league clubs in scheduling night games constituted negligence. Plaintiff made no allegation that these teams’ night schedules were profitable or that the purpose for which night baseball had been undertaken was fulfilled. Furthermore, it cannot be said that directors, even those of corporations that are losing money, must follow the lead of the other corporations in the field. Directors are elected for their business capabilities and judgment and the courts cannot require them to forego their judgment because of the decisions of directors of other companies. Courts may not decide these questions in the absence of a clear showing of dereliction of duty on the part of the specific directors and mere failure to “follow the crowd” is not such a dereliction.

For the foregoing reasons the order of dismissal entered by the trial court is affirmed.

Affirmed.

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


author: MR. JUSTICE CRAVEN

text:
    George L. Shapiro and Angelo A. Ciambrone, Plaintiffs-Appellees, v. Norman DiGuilio, American Indemnity Company, and Idlewild Country Club, an Illinois Corporation, Defendants, and Norman DiGuilio, Cross-Plaintiff-Appellee, v. American Indemnity Company and Idlewild Country Club, an Illinois Corporation, Cross-Defendants. Appeal of American Indemnity Company, Defendant-Appellant and Cross-Defendant-Appellant.
    Gen. No. 51,067.
    First District.
    May 1, 1968.

      Berchem, Schwantes & Thuma, of Chicago (Michael J. Thuma and James O. Latturner, of counsel), for appellant.
    Angelo A. Ciambrone, George L. Shapiro, pro se, and John G. Phillips, of Chicago (Sidney Z. Karasik, of counsel) , for appellees.
   MR. JUSTICE CRAVEN

delivered the opinion of the court.

This is an appeal by American Indemnity Company from a summary judgment entered against it in the circuit court of Cook County in favor of Norman DiGuilio for $72,500, costs and interest, ordering DiGuilio to pay to George L. Shapiro the sum of $500 as guardian ad litem and to Angelo A. Ciambrone the sum of $1,500 as attorney for DiGuilio. The judgment also found that American Indemnity was obligated to defend Raymond Lambotte in the prior underlying personal injury suit brought against him by DiGuilio in which the judgment for $72,-500, costs and interest was entered in favor of DiGuilio.

Appeal also is taken by American Indemnity from an order of the trial court striking portions of its answer asserting an affirmative defense of collusion in the personal injury action which relieved it of the obligation to defend, and from the liability of the judgment obtained.

This action arose from a prior underlying action brought in the city court of Chicago Heights against Raymond Lambotte and Idlewild Country Club by Norman DiGuilio, a caddy at the Idlewild Country Club golf course, for loss and removal of his eye, allegedly caused by an apple thrown by Raymond Lambotte, another caddy at the club. Both DiGuilio and Lambotte were minors, aged sixteen years. At the time of the occurrence, Idlewild was insured by a liability policy of American Indemnity Company. American Indemnity provided defense on behalf of Idlewild but refused to defend Lambotte, contending that its policy did not cover club employees in tort actions against the employees.

In the personal injury action, the court appointed Shapiro as guardian ad litem for the minor defendant, Lambotte, and the guardian ad litem retained Ciambrone as attorney.

Idlewild filed an answer and an affirmative defense that plaintiff DiGuilio was a coemployee of defendant, Lambotte, and the action was barred by the Workmen’s Compensation Act. The guardian ad litem filed an answer but did not raise a similar defense. He tendered Lambotte’s defense to American Indemnity who refused it.

Thereafter, the personal injury cause was transferred to the circuit court of Cook County. Motion for summary judgment was made on behalf of the Country Club. Motion by plaintiff was made for summary judgment on the issue of liability of Lambotte. The motion judge denied summary judgment for the Country Club on the ground that the relationship of plaintiff and defendant presented a disputed question of fact. No counteraffidavit or oral argument was presented in opposition to plaintiff’s motion for summary judgment. The court then entered judgment against Lambotte on the issue of liability and reserved only the issue of damages.

On the trial call, Idlewild announced ready for trial but plaintiff’s counsel stated that he was not ready to proceed as to Idlewild. The assignment judge, on trial call, then dismissed the case against Idlewild for want of prosecution.

Later, the issue of damages as to Lambotte was assigned for trial. The court heard evidence and entered judgment for DiGuilio against Lambotte for $72,500. This judgment contained a finding that DiGuilio was an independent contractor with the Country Club and not an employee, but that Lambotte was an employee at the time of the occurrence. The judgment also directed that the guardian ad litem be paid $500 and his attorney $1,500 for their services. No appeal was taken from this order and judgment entered January 14,1965.

Thereafter, Shapiro, guardian ad litem for the minor defendant, Lambotte, and his attorney, Ciambrone, filed this action in chancery to impose a trust or lien upon the proceeds of the insurance policy of American Indemnity and for an order on the company to pay, on behalf of Lambotte, to DiGuilio the judgment of $72,500, and out of it the guardian ad litem fee of $500 and his attorney’s fee of $1,500. This suit also sought an injunction restraining DiGuilio from collecting his judgment until plaintiff’s rights were declared, and to impose a lien on the insurance policy and declare that American Indemnity Company was obligated to defend Lambotte in the personal injury suit and had breached its duties by failure to do so.

DiGuilio filed a cross-complaint praying that a lien be imposed on the proceeds of the insurance policy for payment of his judgment and that the court declare the American Indemnity Company obligated to defend Lambotte in the principal suit.

American Indemnity and Idlewild filed pleadings, in the instant case, to the complaint and American Indemnity to the cross-complaint, setting up an affirmative defense of collusion between DiGuilio and Lambotte, alleging that Lambotte had failed to present a “bona fide” defense and denying insurance coverage. The court entered an order striking the affirmative defense. Thereafter, on October 20, 1965, the court entered the judgment here appealed from, finding that the insurance policy issued by American Indemnity Company constituted a fund for and is impressed with an equitable lien to satisfy the judgment of $72,500 in favor of DiGuilio against Lambotte; allowed summary judgment in favor of DiGuilio against American Indemnity Company for $72,500 and interest; and ordered DiGuilio to pay the fees of the guardian ad litem, Shapiro, and his attorney, Ciambrone, from such sum. The judgment order also found that American was obligated by its policy to defend Lambotte and that its failure so to do constituted a breach of its policy.

After the judgment of October 20, 1965 was entered and on October 25, 1965, prior to the filing of the notice of appeal, a written order was entered dismissing the action as against Idlewild. Thereafter, the notice of appeal was filed on November 8, 1965. DiGuilio filed a motion to dismiss this appeal on the ground that the order of October 20, 1965, did not contain an express finding that there was no just reason for delaying enforcement or appeal as required by section 50(2) of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 50(2)). This court denied such motion.

Cross-plaintiff, DiGuilio, on appeal, again urges that the judgment appealed from is not appealable since multiple parties were involved and the order appealed from did not dispose of the case as to Idlewild. He also suggests that subsequent to the filing of the notice of appeal, he filed a petition under section 72 of the Civil Practice Act to vacate the dismissal of Idlewild and for leave to file an amended complaint, and that the court vacated the order of dismissal and continued the motion to file an amended complaint. He urges that a decision of the instant appeal may be rendered moot by subsequent developments in the trial court. No lengthy discussion is required on this matter, as the judgment and record is reviewable from the date the notice of appeal is filed. Under section 76 of the Civil Practice Act, “an appeal is perfected when the notice of appeal is filed in the lower court. . . .” (Ill Rev Stats 1965, c 110, § 76(2).) A reviewing court reviews only questions existing at the time of filing of the notice of appeal. Brehm v. Piotrowski, 409 Ill 87, 98 NE2d 725 (1961); Butler v. Palm, 36 Ill App2d 351, 184 NE2d 633 (2d Dist 1962). A review of the record discloses that at the time of the filing of the appeal herein, all of the issues of the case as against all of the parties were fully disposed of and relief had been granted on all of the prayers for relief in both the complaint and cross-complaint. In the state of this record at the time of the filing of the notice of appeal, the order of October 20, 1965, was final and appealable. The actions in the trial court subsequent to filing of the notice of appeal are not before this court on this appeal.

The action here on appeal is an action on the chancery side of the court. There was asserted in it an affirmative defense that the underlying judgment at law in the personal injury case had been obtained by collusion between the plaintiff and the individual defendant.

The defense, if proven, was one which would have defeated the instant action. A judgment obtained by collusion or fraud is open to attack whenever and wherever it is sought to be enforced, even in a collateral proceeding. Freeman, Judgments, § 318. 1 Black, Judgments, § 293. Our court has consistently held that when a judgment is procured through fraud and collusion for the purpose of defrauding some third person, the third person may show the fraud and collusion collaterally and escape the burdens and injuries thus thrust upon him. Green v. Hutsonville School Dist., 356 Ill 216, 190 NE 267 (1934); Wing v. Little, 267 Ill 20, 107 NE 875 (1915); Elting v. First Nat. Bank, 173 Ill 368, 50 NE 1095 (1898). Upon hearing and considering this defense, the court, if it found the allegations proven, could have dismissed the action as being without equity.

The underlying question, however, which is determinative of all the issues and complained errors, is whether the policy issued by American Indemnity covered the liability of Raymond Lambotte to Norman DiGuilio since the judgment obtained was not against Idlewild Country Club, but against Lambotte. The question of the liability of Idlewild has not been adjudicated and is not before this court in this proceeding. To determine this underlying question, we must consider the terms of the policy in accordance with applicable rules of construction.

The provisions of the policy concerned are:

Under the heading of “Insuring Agreements”:

“I Coverage A — Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, . . . .”

The definition of “insured” as used in the policy:

“HI Definition of Insured. The unqualified word ‘insured’ includes the named insured and also includes (1) under coverages A and C, . . . any executive officer, director or stockholder thereof while acting within the scope of his duties as such, . . . .”

The declarations show:

“Name of Insured IDLEWILD COUNTRY CLUB . . . [and] The named insured is CORPORATION . . . .” (The underlined [italicized] portions are those portions which were filled in on the insurance policy form.)

Certain other provisions of the policy specify how the premium of the policy would be determined and contain a series of definitions regarding items that may be used as a premium basis. Included among such definitions are:

"... When used as a premium basis:
“(7) the words ‘Class 1 persons’ mean the following persons, provided their usual duties in the business of the named insured include the use of nonowned automobiles: (a) all employees, including officers, of the named insured compensated for the use of such automobiles by salary, commission, terms of employment, or specific operating allowance of any sort; (b) all direct agents and representatives of the named insured;
“(8) the words ‘Class 2 Employees’ mean all employees, including officers, of the named insured, not included in Class 1 persons. . . .”

The policy provided for an advance premium on an estimated basis, with the earned premium computed according to the rules, rating plan, premiums and minimum premiums applicable and later adjusted. Schedule 1 shows that the basis for computing the advance premium was on the premises — operations covered as “Idlewild Country Club, Flossmoor, Illinois, Country Club — Main Bldg., Dormitory — Servants’ Quarters, Caddy Shop, Garage, Barn and all small buildings on premises, excess of 5 acres, swimming pool.”

While plaintiffs and cross-plaintiff contend that the definition of “Class 2 employees” extends the policy coverage to employees as “Insured” under the policy, this provision is only a definition and is not used anywhere else in the policy. It is not even used as a basis for determination of the premium. However, even if it were so used, such use would not extend coverage to them. Webster v. Inland Supply Co., 287 Ill App 567, 5 NE2d 849 (1st Dist 1936); MacLellan v. Liberty Mut. Ins. Co., 346 Mass 415, 193 NE2d 577.

The provisions of the policy in question are clear and unambiguous as to who is insured. Lambotte, as an employee of Idlewild, was not an insured within the policy definition. While it is admitted that a corporation is only a legal entity and can act only through a person, this does not mean that insurance covering the corporation a fortiori covers its employees. Also, while a corporation is at times liable for its employees’ torts, it is not liable for all such torts. No judgment was obtained here against the corporation. American Indemnity, therefore, is not liable on its policy here in issue nor was it under any duty to defend Lambotte, since the defense required under the policy was to “defend any suit against the insured.” The suit against Lambotte was not a “suit against the insured.” No basis exists in the plain language of the policy to extend the meaning therein set forth of “insured” to include Lambotte. There being no duty on American Indemnity to defend Lambotte in the underlying personal injury suit and no liability on the judgment against him, the judgment order of the circuit court was erroneous and should be reversed and remanded with directions to enter a judgment for American Indemnity Company.

Judgment reversed and remanded with directions.

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


author: MR. PRESIDING JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Steve Jackson, Otherwise Called Bashir Uden, Defendant-Appellant.
    Gen. No. 51,388.
    First District, Second Division.
    May 7, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of the crime of aggravated battery and was sentenced to a term of 5 to 8 years in the penitentiary. On this appeal he maintains that the trial court erred in allowing into evidence matters relating to a past arrest which did not result in a conviction for an infamous crime, and that it was also error to admit, during the hearing in aggravation and mitigation, evidence of past arrests and other encounters with the law which had not resulted in convictions.

Henry Przybytek, the prosecuting witness, testified that he had been working on the far southwest side of Chicago until 3:00 a. m. on the morning of January 17, 1965, and that after work he proceeded to a cocktail lounge in the Rush Street area of the city where he consumed two drinks. About 5:00 a. m. Przybytek left the lounge and proceeded to a snack shop called “Feast-on-a-Bun” located on North Clark Street near Division Street.

The front portion of the restaurant was crowded and as the witness entered he attempted to go to the rear of the establishment. Przybytek testified that defendant was standing in the aisle speaking with another person, and as the witness attempted to pass, he brushed both defendant and the person with whom he had been conversing. The witness stated that defendant remarked to him, “What are you, one of those smart Dagos or something,” and used profanity, to which the witness replied, “No cause for that.” Defendant then stated, “Man, I’ll kill you.” Przybytek testified he replied, “That’s pretty stupid to talk that way,” and turned to walk away when he felt a blow on the side of the neck. Thinking that defendant had attempted to strike him on the chin, but missed, Przybytek turned around and felt another blow to the stomach. Defendant backed away and Przybytek testified he then saw the “glimmer” of a knife in defendant’s hand, exclaimed “Oh, God,” and turned and ran from the establishment with defendant close behind him shouting, “Run, run, run.”

Przybytek crossed the street and entered another restaurant where he received treatment for neck and stomach wounds, both of which were bleeding. The police were summoned and arrived a short while later. Przybytek testified the officers first drove him around the block in an effort to locate defendant, but the witness became weak and was taken to a hospital where he underwent surgery and was hospitalized for a period of ten days. While in the hospital Przybytek identified defendant as his assailant from photographs shown to him by the police.

Defendant testified in his own behalf and stated that he was a free-lance artist working under the pen name of “Bashir Uden” and that on the morning of the occurrence he was in the “Feast-on-a-Bun” sketching a portrait of one of the patrons. Przybytek entered and interrupted defendant in his work, stating to him, “He don’t want none of those things. Get away from him.” The patron interjected that he requested defendant to sketch his portrait, but Przybytek again stated that the patron did not want a portrait. Defendant testified that Przybytek made a remark and then struck defendant, knocking off his spectacles. Defendant stated that he fell back against the service counter, took hold of a plate and “pushed it on to Przybytek . . . pushed it on him and he ran out the door.” Defendant stated that he also fled the establishment, leaving behind his artist’s portfolio, a large zipper-pouch containing- art papers and supplies. He stated that he telephoned the “Feast-on-a-Bun” the following day to determine the whereabouts of the portfolio and was informed that it was in police custody, and that he was too busy thereafter to secure the portfolio from the police.

Defendant further testified on direct examination that some three weeks later he and his aide, Emanuel Bay, were returning from a painting job when they were detained by the police on North Avenue. Defendant testified he was asked his identity and was arrested. He further testified that his companion, Bay, was also arrested and that a carving knife was taken from Bay’s possession which Bay had been using to cut and install rugs.

Police Officer Salvador Aguado testified for the State in rebuttal that he and his partner were cruising in their squad car near “Feast-on-a-Bun” at the time of the incident and were hailed to the aid of Przybytek, whom they drove to the hospital. Officer Aguado returned to “Feast-on-a-Bun” where he found an artist’s portfolio with the name “Bashir Uden” inscribed on its cover. The name was checked through police files and it was found to be an alias of defendant. About three weeks later, the officer testified, he was cruising in his squad car and came upon a disturbance at North and Ogden Avenues. He recognized defendant as matching the description of Przybytek’s assailant, requested defendant’s name, which was given as “Bashir Uden,” and arrested defendant. The officer testified he searched defendant and found a large butcher knife on his person.

Mr. Frank Guardi testified that he was employed at “Feast-on-a-Bun” on the morning of the incident and that he neither witnessed the altercation between defendant and Przybytek, nor did he see any blood on the floor after the men had left. He testified that he “saw two fellows run out in a hurry” and that the last one out of the establishment was defendant.

Defendant first maintains that the trial court erred in admitting into evidence matters concerning a past arrest which did not result in a conviction for an infamous crime. On direct examination defendant was asked a question by his counsel to which he responded, “I don’t carry a knife.” Upon cross-examination by the State, the following took place:

“Q. (Assistant State’s Attorney) You say you don’t carry a knife ?
“A. (Defendant) No, sir.
“Q. Did you ever carry a knife?
“A. No, sir.
“Q. Never carried a knife?
“A. I don’t carry a knife.
“Q. Ever get arrested for carrying a concealed weapon in St. Louis ?
“A. That arrest, they stopped me on the street with a bunch of fellows with me and asked me about that knife that was on the ground and everybody denied it and the police said to come and get in the car and they took me down.
“ (Defense Attorney) Object.
“A. (Defendant) I wasn’t through yet.
“ (Defense Attorney) I will ask that this question and answer be stricken because an arrest is not a competent method of establishing anything.
“ (Assistant State’s Attorney) I didn’t say—
“A. (Defendant) I wasn’t through.
“ (Assistant State’s Attorney) I am not going on the arrest. He wasn’t picked up for carrying a concealed weapon ?
“A. (Defendant) I stayed there until about four or five hours and they turned me loose, but it wasn’t my knife. I don’t even carry a knife.”

Evidence of noninfamous crimes, and evidence of arrests or other encounters with the law which do not result in convictions for infamous crimes are inadmissible for impeachment purposes. People v. Herbert, 361 Ill 64, 196 NE 821; People v. Smith, 74 Ill App2d 458, 221 NE 2d 68. However, the admission of inadmissible evidence which would otherwise be considered prejudicial in a jury trial, will not be considered prejudicial in a bench trial unless it affirmatively appears of record that the trial judge placed reliance thereon in arriving at his judgment. See People v. Robinson, 30 Ill2d 437, 197 NE2d 45; People v. Smith, 55 Ill App2d 480, 488, 204 NE2d 577.

While the State had a right to produce evidence to dispute defendant’s testimony that he did not carry a knife, the manner in which the State attempted to do so was not proper. Nevertheless, the record in this case does not reveal that the court in any way relied upon the evidence with respect to the St. Louis concealed weapon arrest. Defense counsel strenuously objected to the State’s line of questioning in this regard, as appears above, and yet the trial court made no ruling on the objection and defense counsel did not press for a ruling thereon. Furthermore, in the trial court’s extensive summary of the evidence, made prior to the finding of guilty, no mention is made of the St. Louis arrest. Under the circumstances, we are of the opinion that the admission of the St. Louis arrest into evidence was not prejudicial to the defendant.

During the hearing in aggravation and mitigation the State was permitted, over objection, to read from defendant’s criminal record, which set out not only convictions for various crimes, but also listed arrests and other encounters with the law of which defendant was not subsequently convicted, including the St. Louis arrest and charges of battery, resisting arrest and being a fugitive from justice. Defendant contends that it was error for the trial court to have heard and considered this evidence and that defendant was consequently prejudiced in the determination of the extent of his punishment. We agree.

Arrests or other encounters with the law which have not resulted in convictions are inadmissible at the hearing in aggravation and mitigation in arriving at the punishment for the crime charged. People v. Riley, 376 Ill 364, 367, 33 NE2d 872; People v. Grigsby, 75 Ill App2d 184, 191-193, 220 NE2d 498. While it was held in the Riley case that the admission into evidence of defendant’s prior arrests at the hearing in aggravation and mitigation was not prejudicial to defendant, the Court nonetheless commented that such evidence was otherwise inadmissible and stated at page 372 of the opinion that it did not “approve of the procedure in this case and careful prosecutors will avoid using it.”

In the case of People v. O’Riordan, 21 Ill App2d 309, 157 NE2d 780, published in abstract only, the Court was confronted with a question similar to that presented here. O’Riordan was being tried for the crime of assault with intent to commit a lewd and lascivious act and, after having found him guilty as charged, the trial court read from a paper handed to him by the State detailing several arrests and investigations of defendant by the police on “sex matters” which did not result in convictions or, in some instances, the filing of charges. Holding this to have been error, the Court stated at pages 8 and 9 of the unpublished opinion:

“In the instant case evidence that the defendant had been questioned by the police concerning various sex crimes was neither competent nor material. Such questioning, standing alone, without a full presentation of all of the facts and circumstances connected with the prisoner’s detention is outside the purview of the inquiry under the provisions of the statute. Those matters should not have been presented to the court, nor, if they were presented to him, should not have been considered.”

While it is true as the State contends, that the court in the hearing in aggravation and mitigation is not bound by the ordinary rules of evidence applicable to criminal proceedings and may search anywhere within reasonable bounds for facts tending to show aggravation or mitigation of the offense for which a defendant is on trial, People v. Popescue, 345 Ill 142, 177 NE 739, the evidence must be competent and material. See e. g., People v. Crable, 80 Ill App2d 243, 250, 225 NE2d 76; People v. McWilliams, 348 Ill 333, 338, 180 NE 832; People v. O’Riordan, 21 Ill App2d 309, 157 NE2d 780; People v. Popescue, 345 Ill 142, 177 NE 739, supra; People v. Mitchell, 57 Ill App2d 238, 205 NE2d 655.

In the instant case it is readily apparent that in sentencing the defendant the trial court gave consideration to and placed weight upon his prior arrests and other encounters with the law which did not result in convictions, as evidenced by the court’s comment just prior to sentencing: “I am going on his entire record. And he is one apparently from his record who is quick to engage in violence.” This Court has the power to reduce sentences in appropriate cases. Supreme Court Rule 615; Ill Rev Stats 1967, c 110A, par 615 (b) (4). Inasmuch as this inadmissible evidence affected the extent of the sentence imposed upon defendant, of a term of not less than five years nor more than eight years in the penitentiary, the sentence is reduced to a term of not less than three years nor more than eight years in the penitentiary.

For these reasons the judgment is modified and as modified is affirmed.

Judgment affirmed as modified.

McNAMARA and LYONS, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    Ernest Felton, Sr., Plaintiff-Appellant, v. Joseph Coyle, South Chicago Community Hospital, an Illinois Not-For-Profit Corporation, and Capitol Ambulance and Oxygen Service, Inc., an Illinois Corporation, Defendants-Appellees.
    Gen. No. 51,632.
    First District, Second Division.
    May 7, 1968.

      McCoy, Ming & Black, of Chicago (Fleetwood M. McCoy, Ellis E. Reid, and Helen I. Cohen, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (Perry L. Fuller and D. Kendall Griffith, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Plaintiff, Ernest Felton, Sr., brought an action against the defendant Dr. Joseph Coyle for assault and false imprisonment. After a jury verdict in favor of defendant, plaintiff appeals, contending that the court erred in allowing improper remarks in the opening statement made in behalf of defendant; in failing to direct a verdict in favor of plaintiff on the issue of liability; in refusing a certain tendered plaintiff’s instruction and in giving certain defendant’s instructions; and finally, in its ruling on the admissibility of certain evidence. The jury also found in favor of the other two defendants, but this court dismissed the appeal as to those parties, and those judgments are not now presented for review.

On April 7, 1959, plaintiff sustained a fracture of the middle third of his right clavicle. He was taken to South Chicago Community Hospital for treatment. The defendant doctor, a staff physician, was assigned to treat plaintiff. He prescribed that plaintiff lie flat on his back and that the arm be immobilized by a sling.

There was evidence of an altercation between plaintiff and an employee of the hospital at noon on April 10. Harriet Mirsch, a nurses’ aid, testified that plaintiff refused his breakfast and lunch trays, cursing her both times. Rose Sanchez, another nurses’ aid, then took the noon tray to plaintiff. While the two aids were attempting to help plaintiff to a sitting position, he kicked Sanchez in the stomach. Sanchez testified that she then threw tea on the plaintiff and he threw soup at her. Joseph Hamilton, another bed patient in the room, testified that he saw the plaintiff kick the nurses’ aid and throw something at her; that she then threw something at plaintiff. As to this incident, plaintiff testified that an aid threw tea and dishes at him, but he had never kicked or struck any nurses’ aid.

Evidence on behalf of plaintiff regarding the evening of April 10:

Plaintiff’s daughter, Nancy Felton, testified that, when she arrived to visit her father, defendant told her that he wanted the plaintiff out of the hospital in five minutes. After she relayed this message to her father, he went into the hall and talked with defendant. Defendant told both of them that plaintiff would need another doctor. While she was trying to telephone other doctors, her father started to go downstairs to leave the hospital. At this time plaintiff was wearing trousers, shirt, and only one shoe. Defendant grabbed her father by the shoulders and arms, then told him that he was going to call the police, and that plaintiff was going to a “psycho” hospital. Dr. Alice Buckley returned the daughter’s telephone call and talked to her father and Dr. Coyle. The daughter accompanied her father to Fairview Sanitarium.

Plaintiff testified that his daughter told him that defendant was going to send him to a mental hospital because he had kicked a nurse. Plaintiff started to dress to leave the hospital, but defendant led him back to bed. Defendant then told him he would have to go to a psychiatric hospital, and that the only way he could leave was to get a different doctor and go to another hospital. While his daughter was trying to contact other doctors, plaintiff again tried to leave the hospital. As he reached the stairway landing, defendant overtook him and directed him forcibly back to his room. Dr. Buckley returned his daughter’s telephone call and informed plaintiff that she could get him a bed at Fairview Sanitarium. Defendant called the ambulance and plaintiff was taken to the sanitarium.

Officer Doyle of the Chicago Police Department testified that he was sent to the hospital. Upon his arrival, he was directed by hospital employees to see the plaintiff patient and defendant doctor. Defendant requested that he take the plaintiff to the psychiatric unit of the Cook County Hospital but he refused because plaintiff appeared to be quite sensible and doing nothing out of the ordinary.

Evidence on behalf of defendant regarding the evening of April 10:

Defendant testified that he went to the hospital after receiving a telephone call that the plaintiff could not be controlled. When he arrived, the plaintiff was standing in the doorway of his room partially dressed. When plaintiff said he wanted to go home, defendant told him to stop misbehaving and led him back to his bed. Defendant also told the plaintiff that if he did not wish to follow instructions he should get another doctor and go to a different hospital. Although he did not impose any five-minute limitation on plaintiff, he did believe that plaintiff needed another doctor to treat him. However, he testified that he could not withdraw as doctor without seeing that the patient was under the care of another doctor. Later that evening plaintiff again started to leave the hospital. Defendant overtook the plaintiff and, after taking him by the left arm, led him back to bed, using a degree of force. After consulting with a staff psychiatrist, defendant started to fill out a form for the commitment of plaintiff to the psychiatric unit of the Cook County Hospital, but he did not complete the form and discarded it. Defendant did not call the police nor did he ask the police to take plaintiff away. Defendant called the ambulance service at the request of Dr. Buckley.

Dr. Buckley testified that she made arrangements for a bed for plaintiff at the Fairview Sanitarium after talking to plaintiff and his daughter. She made these arrangements at the request of the plaintiff. She met both plaintiff and his daughter at the sanitarium at which time the daughter executed a form for his admittance. He was released from the sanitarium the following Sunday without Dr. Buckley’s knowledge or consent.

Plaintiff first urges that certain remarks made by counsel for defendant in his opening statement were so prejudicial as to require reversal of the judgment. The remarks in question were as follows:

“COUNSEL FOR DEFENDANT: I think the evidence will show numerous incidents that will help in evaluating the situation to the injury. In those subsequent that Dr. Buckley, who had attended members of his family including Mr. Felton, had given him a bill for services . . .
“COUNSEL FOR PLAINTIFF: Object, Your Honor.
“THE COURT: I am going to overrule your objections.
“COUNSEL FOR DEFENDANT: The bill was for services rendered to Mr. Felton and a small sum for his service . . . The total bill was $63.00 . . . The bill was unpaid and they brought suit against Mr. Felton for a $60.00 bill and $3.00 for cost . . . Mr. Felton through his attorney, . . . brought counterclaim against Dr. Buckley, and I may verify by stating that Dr. Buckley had imprisoned him in the Fairview Sanitarium and that she had committed other wrongs against him in connection.
“COUNSEL FOR PLAINTIFF: Object.
“THE COURT: Overruled.”

Plaintiff contends that these comments were made by defendant for the sole purpose of discrediting plaintiff as a deadbeat, and that the court committed prejudicial error in allowing the remarks to stand. The function of an opening statement is to enable a party to advise the jury what he expects to prove. “The discretion of the court as to the scope of the opening statements by counsel, either in point of time or relevancy, will not be interfered with on review except in rare cases of arbitrariness amounting to abuse.” Hettinger v. Beiler, 54 Ill App 320 (1894).

The complaint in the instant case charged that defendant had committed plaintiff to the sanitarium. In the above quoted remarks, counsel for defendant informed the jury that in a separate suit, plaintiff had counterclaimed that Dr. Buckley imprisoned him in the sanitarium. During the trial, plaintiff testified on cross-examination that he had in fact made these charges against Dr. Buckley in a prior verified complaint. The counterclaim against Dr. Buckley constituted an admission contrary to plaintiff’s allegation that it was defendant who committed him. It was proper evidence. It was also proper to inform the jury in opening statement that it was a fact which defendant would prove. While we agree with plaintiff that reference to the unpaid bill and $3 cost was irrelevant, we consider such allusion to have been harmless error. No prejudicial error was committed in the opening statement.

Plaintiff next asserts that the court erred in not directing a verdict in favor of plaintiff as to liability. The law in Illinois as to directed verdicts was set forth by our Supreme Court in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967) where it was stated: “Verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

Plaintiff contends that liability must be imposed as a matter of law because defendant admitted restraint, while defendant maintains that medical discretion is an absolute defense to the charge of restraint of liberty of a patient. We do not accept either contention. The issue as to whether there was justification for the conduct of the defendant was a question of fact for the jury and properly presented to them. Plaintiff had sustained a fracture of the right clavicle, requiring immobilization and complete bed rest. A cast was to be applied on the following day. While only partially dressed and wearing one shoe, plaintiff was attempting to leave the hospital unattended. Even his daughter attempted to keep him from leaving. It is clear that the situation was serious and demanded an immediate decision. At that point, defendant took plaintiff by the left arm and led him back to bed. Under the facts and circumstances of the case, it was properly presented to the triers of fact to determine whether plaintiff was improperly detained.

Plaintiff next contends that the court erred in not giving plaintiff’s tendered instruction No. 12 which stated:

“There was in force in the State of Illinois at the time of the occurrence in question a certain code known as the mental health code which provided for involuntary emergency admission to a hospital in the following manner:
“(a) Any person could petition the superintendent of a hospital alleging a person to be mentally ill or in need of mental treatment.
“If you decide that Joseph Coyle failed to comply with the terms of this code on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not Joseph Coyle was guilty of misconduct at the time of the occurrence.”

The court properly refused said instruction. The statute referred to in the instruction had no application to defendant since he had not admitted plaintiff to any hospital for a mental disorder. All the evidence, including the testimony of the plaintiff, indicated that Dr. Buckley arranged for plaintiff’s placement in the sanitarium. Merely because defendant started to fill out a commitment form to Cook County Hospital would not have justified the giving of such an instruction. Instructions should be given only as to issues that are in evidence.

Plaintiff also urges that it was error to give defendant’s instructions 2(a) and 8. An instruction cannot be urged as error on appeal unless a specific objection has been raised to it in a conference on instructions and in the post-trial motion; and the objection must be specific enough to fairly inform the trial judge of the basis of the objection. Allen v. Howard Bowl, Inc., 61 Ill App2d 314, 210 NE2d 342 (1965). The record does not disclose that any objection was made to instruction No. 2 (a). There is only a parenthetical reference to the fact that objection was made to instruction No. 8. No reasons for the objection to instruction No. 8 were given. Any error in the giving of these two instructions cannot now be urged.

Finally, plaintiff contends that the court erred in striking Officer Doyle’s answer as follows:

“Q: What, if anything, specifically, did you observe about his (defendant’s) manner of speech?
“A: I hardly think I could be the judge of that, but it seemed to me that he had been drinking.”

On motion of defendant the court struck the answer and instructed the jury to disregard it. While the question posed to the witness was proper, the answer was improper since it volunteered information not responsive to the question. There was no question pending as to whether defendant had been drinking. Nor were there any further questions asked of the witness on that subject. The answer was properly stricken.

Since we have considered the merits of the appeal, it is not necessary to consider defendant’s motion to dismiss the appeal.

For the reasons stated above, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Patrick Leman, Defendant-Appellant.
    Gen. No. 51,740.
    First District, Second Division.
    May 7, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael C. Zissman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

Defendant, Patrick Leman, was prosecuted in a trial without a jury and convicted of the offense of theft of property having a value in excess of $150, sentence being subsequently imposed upon him for a term of from not less than two (2) nor more than five (5) years in the State Penitentiary.

Defendant, by this appeal, advances two theories in urging a reversal of the judgment entered against him. Defendant first alleges that notwithstanding his self-professed indigency, prejudicial error was committed below by the trial judge’s refusal to honor his pretrial request for representation by private counsel, other than the Assistant Public Defender appointed in his behalf. Secondly, defendant submits that the State failed to adduce either competent or credible evidence to establish the value of the stolen goods as exceeding $150, thereby failing to substantiate the aggravated sentence imposed upon him by the court. No challenge, however, is otherwise directed by defendant to the sufficiency of the evidence to sustain his conviction on the charge.

The circumstances of the offense in question are themselves undisputed. The case at bar concerns itself with the theft of numerous drug articles (People’s Group Exhibit #18) and eleven General Electric slicing knives (People’s Exhibits #2 through #12 inclusive) from the self-service shelves of the Aldens Shoppers World, Inc. store located at 6430 West Fullerton Avenue in the City of Chicago. The crime was perpetrated by three offenders in the early evening hours of February 1, 1966, and within the visual presence of the two State’s witnesses, James Taylor and Ronald Poedtke, protection supervisor and security detective, respectively, for Aldens.

The defendant was positively identified by the witnesses as the man they observed taking and loading the aforementioned exhibits into a large cardboard box (People’s Exhibit #1), which was placed atop a shopping cart with the help of a confederate. The witnesses testified that defendant thereafter hurriedly wheeled the cart and box past an unattended checkout counter, out the front door and into the adjacent parking lot, where he was met by an automobile driven by a companion. It was at this juncture that Taylor and Poedtke stated they overtook defendant and his two accomplices, placed them all under arrest, regained custody of the secreted proceeds of the crime then in defendant’s possession, and called the police.

These items as well as the box were subsequently identified at trial by Taylor who testified, over objection, that by his computations from adding together the retail price tags affixed to all of the merchandise taken, the stolen goods had a total retail value of $529.36. The witness stated further, over similar objection, that he and a Mr. Loftus, the company’s operator manager, had examined and computed the composite wholesale value of these items from the firm’s cost records, arriving at a combined wholesale value of $365. Loftus was not called to testify for the State in this regard, prompting the previously noted hearsay objections by the defense. This was, in essence, the extent of the testimony and evidence adduced at trial which finds relevance in this appeal, no testimony having been offered in behalf of the defense after the State rested its case. A motion for a finding of not guilty was denied by the court. It is from the denial of his subsequent post-trial motions for a new trial and in arrest of judgment that defendant takes this appeal.

Defendant’s initial point is that of an allegation of prejudicial error emanating from the denial below of his right to representation by counsel of his own choosing, relying primarily upon the authority of People v. Owens, 86 Ill App2d 75, 226 NE2d 691 (1967) and People v. Ritchie, 66 Ill App2d 417, 213 NE2d 306 (1966). It is a right which defendant submits was frustrated and unavailing by virtue of the lower court’s unwarranted imposition upon him of a public defender, absent an express finding of his indigency. This, by itself, he contends to have been contrary to the requisite standards for such appointments as set forth in Ill Rev Stats (1965) c 38, par 113-3 (b). If this is to be, in fact, the underlying premise for defendant’s theory, a perusal of the Report of Proceedings from the preliminary hearing of March 4, 1966, discloses his position to be a most untenable one. It was at that hearing that defendant himself, upon inquiry from the bench, explicitly acknowledged his indigency, the court appointing a public defender accordingly, without objection from the accused. An appearance, which is contained in the common law record before us, was entered by the Public Defender on that same date.

Here, the facts of the case do not favor defendant. Unlike his cited authority of People v. Ritchie, 66 Ill App2d 417, 213 NE2d 306 (1966), defendant was not thrust into the dilemma of proceeding to trial unprepared under circumstances whereby he was in serious doubt as to exactly by whom he was represented. To the contrary, only after securing two continuances, and 105 days subsequent to the appointment of the public defender did defendant, in the case at bar, first interpose his request for “a bar association attorney.” Moreover, application for the substitution was not addressed to the court until the very moment his cause was about to commence to trial on June 17th. This, in itself, has been held appropriate grounds to deny the substitution because of the staleness of the demand. People v. Jones, 51 Ill App2d 391, 201 NE2d 194 (1964); People v. West, 80 Ill App2d 59, 225 NE2d 397 (1967).

Defendant’s request was predicated below upon a barren and unsubstantiated claim that counsel, whom it would appear he had known for some time, told him that he “belonged in the penitentiary.” To that charge, the public defender made no response, which failure the State attributes to counsel’s continuing awareness of his duty to protect such confidential communications with his client. However, contrary to the State’s suggestions, we are in no position to embark upon an examination into the veracity of defendant’s accusation or the possible reasons why the statement may have been made by the public defender. The meaningful factor worthy of comment is that the purported remark nowhere appears to have undermined the attorney-client relationship to defendant’s detriment, nor affected the zealousness with which defendant was represented. Defendant would appear furthermore to be of the same opinion, for he directs no claim to the professional incompetence of that counsel here on appeal. Rather, defendant adheres to the proposition that necessarily incident to his right to counsel, is the equal right to be afforded the opportunity to select counsel of one’s own choosing. We cannot agree.

Directly controlling in this regard is section 4 of the Public Defender Act which, in mandatory terms, provides for the appointment of counsel for an indigent defendant, other than the public defender, only upon good cause shown, notably excepting from its requirements cases wherein the charge arises from a noncapital offense occurring in counties having 500,000 or more inhabitants. More specifically, that statute provides:

“Any court may, with the consent of the defendant and for good cause shown, appoint counsel other than the public defender, and shall so appoint if the defendant or accused shall demand and show good cause for such appointment, except that no counsel other than the Public Defender shall be appointed to defend a person charged with the commission of a criminal offense other than a capital offense in a county containing 500,000 or more inhabitants. . . .” (Emphasis supplied.) [Ill Rev Stats (1965) c 34, par 5604.]

The aforementioned italicized portions of this statutory proviso connote amendatory language to that Act which was amended by Act approved June 20, 1963, representing, as well as manifesting, a legislative intent of considerable departure from the statute in its preexisting form. It is because of this substantive change in terms that defendant’s case of People v. Owens, 86 Ill App2d 75, 226 NE2d 691 (1967), wherein the arraignment proceedings predated the effective enactment of this language, is inapposite on its face in absence of the now incumbent obligation to show good cause. While defendant’s arraignment postdates the 1963 amendment, and the offense involved is noncapital, he nonetheless strongly advocates the nonapplication of the recent “good cause” requirement to his particular request for reasons he articulates in terms of fundamental fairness. It is an argument which cannot be heard to defeat the operation of the statute on the record before us.

Clearly, an accused, regardless of ability to pay, enjoys the constitutional guarantee, in State proceedings, to legal representation for his defense. That principle obtains unqualifiedly, however, only to the extent that the accused be represented by competent counsel, an objection which is not taken in the case at bar. The right cannot be said to secure in and to an accused a right to select from or experiment with, the counsel so appointed. People v. Woods, 26 Ill2d 557, 188 NE2d 1 (1963). To hold otherwise, as defendant suggests, would to no measurable degree insure an accused of any higher caliber of representation, yet would encourage the increased utilization of such substitutions to the detriment of the orderly process of criminal justice in our courts. People v. White, 84 Ill App2d 178, 228 NE2d 169 (1967); People v. Gray, 33 Ill2d 349, 211 NE2d 369 (1965); People v. Cox, 22 Ill2d 534, 177 NE2d 211 (1961).

Defendant was expressly found to be indigent and continued to acquiesce for an extended period of time in the court appointment of his counsel. He first addressed his demand on the day of the trial and, neither at that time nor on appeal, made claim to the incompetence of the public defender. In fact, it appears that defendant was capably represented. Accordingly, defendant failed to meet the requirements of the statute in question, and we can find no abuse of judicial discretion by the court’s refusal to honor his request. People v. DeMary, 37 Ill2d 364, 227 NE2d 361 (1967); People v. Jones, 51 Ill App2d 391, 201 NE2d 194 (1964).

Lastly, defendant contends that the goods taken and seized from his possession were not proven beyond a reasonable doubt to exceed $150 in total value. He attacks in particular the stature of the lay witness, James Taylor, (the protection supervisor) to testify as to the retail value of these items. This we deem to be an ill-founded contention.

The issue presented affects neither guilt nor innocence, but rather the propriety of the duration of imprisonment imposed. Ill Rev Stats (1965) c 38, par 16-1. The crux of the question is the fair cash market value of the unlawfully seized commodities. By the nature of the business involved and the circumstances as they have been aptly demonstrated to this court, that value, in our opinion, would be most accurately reflected by the prices these items were capable of commanding by consumer purchase on the retail market; to wit, the retail price. People v. Hansen, 28 Ill2d 322, 192 NE2d 359 (1963).

If from only the basis of common experience, Taylor was competent and qualified to testify as to retail value, particularly inasmuch as nothing was left open to his opinion. The witness’ representation as to that value was based exclusively upon his personal observation and computation of the retail price tags which were then, and as of the date of trial, remained affixed to the goods on exhibit before the court and defendant. This was firsthand testimony by an in court declarant which lay directly open to cross-examination for impeachment purposes as to discrepancies, hence we can find no fault or discredit with the procedure employed. The very recent case of People v. Davis, 94 Ill App2d 86, 236 NE2d 423, wherein testimony of this exact nature was deemed sufficient in law, we think is dispositive of the argument defendant advances. The combined value of People’s Exhibits #2 through #13 inclusive was established beyond a reasonable doubt to far exceed $150.

For the above reasons, the judgment is affirmed.

Judgment affirmed.

BURKE, P. J. and MCNAMARA, J., concur.

       This statute has again since been amended, by Act approved September 7, 1967, to rectify its apparent inconsistency with Ill Rev Stats (1963), c 38, par 113-3(b) now reciting, “except as otherwise provided in Section 113-3 of the ‘Code of Criminal Procedure of 1963.’ ”