author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sylvester Webb, Defendant-Appellant.
    Gen. No. 51,202.
    First District, Fourth Division.
    March 10, 1967.

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

delivered the opinion of the court.

Charge : Robbery.

Defense at Trial : Alibi.

Judgment : After a jury trial and a verdict of guilty by the jury, the court imposed a sentence of one to three years.

Points Raised on Appeal: Defendant contends he was denied a fair trial by the presentation to the jury of evidence of defendant’s prior "conviction; and the refusal of the court to properly instruct the jury upon the effect of defendant’s prior conviction.

Evidence: No question has been raised in this appeal with reference to the evidence. It can be summarized as follows: On February 9, 1964, at 1:30 a. m., Marshall Dickens was driving his cab south on Clark Street near Grand Avenue, when two men hailed him and he stopped; the men got into the cab and one of them (the defendant) gave their destination as 1530 West Hastings. The defendant was seated on the right side of the rear seat; as they drove along, he and the driver discussed the latter’s asthmatic condition, and the defendant recommended a pill for relief. When they reached Hastings, after further directions from the defendant, the defendant’s companion put a gun to the driver’s neck and told him to drive up a dead-end alley. There was a light in the alley and the driver looked into the rear seat, telling the men to take everything but not to hurt him. The defendant leaned over the front seat, took money from the changer and from the driver’s pocket; the other man took money from the driver’s billfold, and the defendant took his wristwatch. The money amounted to about $58. The driver observed the defendant when he first entered the cab, also through the rearview mirror as they discussed his asthma, and when he robbed the driver and left the cab. The driver gave police a description of defendant’s height, weight and the clothes he was wearing.

On February 21, 1964, at 8:00 p. m., the driver identified the defendant as the man who robbed him. The defendant was in a lineup of five men when identified; he denied robbing the cabdriver and testified that he thought he was at a party at Cullerton and Pulaski until 1:30 a. m., on the night of the robbery. The defendant was the only person to testify on his behalf.

Over the objection of the defendant, the State introduced into evidence a record of a conviction of robbery by the defendant on August 18, 1964, showing that the defendant, after a bench trial, was found guilty and sentenced to imprisonment for a term of not less than one nor more than three years, from which conviction the defendant filed a notice of appeal, and that appeal is now pending.

Opinion :

The defendant argues that this court should hold unconstitutional section 155-1 of chapter 38, Illinois Revised Statutes 1963, which provides that a defendant in . a criminal case may testify in his own behalf, but that a prior conviction may be shown for the purpose of affecting his credibility. This statute has been in effect for a long period of time in this State, and no question has heretofore been raised or passed on by the Supreme Court with regard to the constitutionality of the statute. In People v. Barnes, 26 Ill2d 563, 188 NE2d 7, a case decided in February Í963, the court said:

“Conviction of crimes can, of course, be shown for the purpose- of affecting the credibility of a witness ' (Ill Rev Stats 1959, chap 38, par 734), and the prior conviction of a witness other than a defendant may be shown on cross-examination . . . .”

The defendant here argues that when a defendant becomes a witness in his own case, it is logical for the court to hold that the introduction of the record of a former conviction (unless for perjury or some similar offense) ought not be considered as.affecting the-defendant’s credibility. The question of whether or-not the provision is logical is a matter that should be determined by the legislature, and we will make no statement whatsoever with regard to that contention.

At the trial when the defendant was objecting to the introduction of the record of prior conviction, no constitutional question was raised. Under those circumstances, no constitutional question can be urged in this court. People v. Valentine, 60 Ill App2d 339, 347, 208 NE2d 595, and cases therein cited.

The defendant also argues that the following instruction given was improper:

“The Court instructs the jury, in the language of the statute, that no person shall be disqualified as a witness in any criminal case by the reason of his having been convicted of any crime; but such conviction may be shown for the purpose of affecting his credibility.”

The defendant contends that the jury should have been told that the evidence of his former conviction could be considered by them “solely” for impeachment purposes. The defendant offered an instruction which was refused by the court. That instruction is not clear in that it tells the jury that the evidence should not be taken into consideration in their determination of whether the defendant is or is not guilty of robbery, and that the only consideration which should be given to it is in determining what credit should be given to the testimony of the defendant. In our opinion, the instruction is confusing, and the court properly refused it.

The instruction given by the court was a proper instruction. In People v. Levy, 351 Ill 110, 184 NE 223, a case where an accomplice had testified against the defendant, the court said:

“At the request of the defendants, the court instructed the jury that Wilma Harjes had admitted that she stood convicted of the crime of larceny; that the conviction of a witness for a felony was evidence tending to impeach his or her credibility, and that in determining the weight which they should attach to Wilma Harjes’ testimony they had the right to take into consideration the fact that she stood convicted of larceny.”

The defendant also argues that a prior conviction on which appeals are pending cannot be used for the purpose of impeachment of a witness, and cites in support of that contention People v. Shook, 67 Ill App2d 492, 214 NE2d 546, which casé is not applicable since the prior conviction had been held void. In dictum in that case the court referred to Campbell v. United States, 176 F2d 45, in which the court took the view that it was illogical and unfair to permit .a defendant to be questioned about a previous conviction from which an appeal was pending. The court did not rely on that case in reaching its decision. It is worthy of note that the great majority of jurisdictions have not accepted the Campbell case and the courts of three Federal circuits have rej ected the rule therein laid down.

Ill Rev Stats 1963, c 38, § 155-1 provides that when, a defendant testifies in a criminal proceeding, a prior conviction may be shown for the purpose of affecting his credibility, hi the instant case the prior conviction was properly shown by the production of the record.

Ill Rev Stats 1963, c 38, § 2-5 defines “conviction” as meaning a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury. The closest case in Illinois is People ex rel. Keenan v. McGuane, 13 Ill2d 520, 150 NE2d 168, cert den 358 US 828, in which the petitioner argued that his conviction for conspiracy to evade and for evasion of income taxes did not operate to cause a vacancy in the office of the Cook County assessor because an appeal from such conviction was pending. The Illinois Supreme Court refused to follow that argument, and on page 536 said:.

“Under the constitutions and statutes of sister States creating a vacancy in public office where the incumbent has been convicted of a felony, it is generally held that the office is vacated upon a verdict of guilty and that an appeal does not stay the effect of such vacancy. These decisions are generally predicated upon the theory that after a plea or verdict of guilty, judgment, and sentence by a court of competent jurisdiction, the presumption of innocence which, up to that time, had persisted in favor of the defendant, no longer prevails, and that the law thereafter presumes that the proceedings have been regular and that the defendant is guilty. [Citing cases.] ”

The court further held that the provisions of the Illinois Constitution and statutes which effect a vacancy in public office upon the conviction of the incumbent of an infamous crime refer to the conviction in a trial court. The court said:

“We find no merit in petitioner’s contention that pendency of his appeal stays the finality of his conviction and thereby holds in abeyance a vacancy in the office of Cook County assessor.”

We therefore hold that in a criminal case, when the defendant testifies, it is proper to introduce the record of his prior conviction, even though an appeal is pending in the case. Finding no error in the record, the judgment is affirmed.

Affirmed.

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

       Ill Rev Stats 1963, ch 38, §18-1 (a). A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.

       “The Court instructs the jury that there has been introduced evidence that the defendant has heretofore been convicted of-robbery. You are further instructed that' this evidence should not be taken in consideration in your determination of whether the defendant is guilty of robbery in the present case.. You can only take this evidence into consideration in determining what credit you may give the testimony of the defendant.”

       The record introduced showed that the defendant had been convicted on August 18, 1964; there is nothing in the briefs of plaintiff or defendant to indicate whether anything further was done in the case except a filing of a notice of appeal.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE ENGLISH

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. David Sanders, Plaintiff in Error.
    Gen. No. 50,952.
    First District, Fourth Division.
    March 10, 1967.

      John F. Dobler, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick Murphy, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged

Rape.

Judgment

After ,.a bench trial, defendant was found guilty and sentenced to a term of twenty years.

Points Raised on Appeal

(1) The evidence did not establish defendant’s guilt beyond a reasonable doubt.

(2) A variance between the indictment and the evidence adduced requires reversal.

Testimony of State Witnesses

Catherine Wells

On the 13th of March, 1961, between 10:30 and 11:00 p. m., while waiting for a bus on the corner of Kedzie and Douglas Streets in Chicago, she was grabbed around the throat from behind, pulled backwards into a passageway below the bus stop, and cautioned not to “holler.” Once in the passageway she observed “two other boys” in addition to her assailant. The three took her pocketbook and change, and demanded to know her name. Then, on signal, a “car was brought up into the alley, and I was pulled out of this alley and pushed in this car.” A total of six boys were in the car as it proceeded out of the alley. Defendant was one of the six occupants. She informed her captors that she was forty years of age, married, four and a half months pregnant and the mother of sons as old as they were, but “they told me they didn’t want to hear this story.” When the car reached a dead-end alley all of the boys but the original assailant, Sam Jones, left the car. Jones ordered her to slide down on the seat of the car and he engaged in an act of sexual intercourse with her. It was then decided by the boys that this was not a desirable location and, after some debate, all of them returned to the car and they proceeded to another location. At this latter destination, Mrs. Wells was pulled from the car by her clothing and arm, called a bad name, and led by Jones down a passageway to a dimly lit basement. In the basement there took place eight separate acts of intercourse with her by eight different persons. At one point in the ordeal she was asked to drink “peppermint schnapps,” but she refused. Defendant was one of those eight attackers. At the conclusion of these attacks, Mrs. Wells was driven to her home by some of the boys. She reported the rapes to her husband, who immediately summoned the police. Approximately a week or eight days after the event, Mrs. Wells was called to the police station to view suspects in a lineup. She there identified some of her attackers, but defendant was not in the lineup.

J&riel K. Howard

He was the police officer who placed defendant under arrest for sex investigation.

Testimony of Defendant’s Witnesses

Sam Jones

The arrangement with Catherine Wells was not forced, as she became friendly when she observed that Jones had ten dollars. She willingly complied with his request that she purchase a half pint of peppermint schnapps and accompany him and his friends to a certain location. There, Jones, Johnnie Walker and Willie Lee Dean had intercourse with Mrs. Wells. Defendant was not there and did not have intercourse with her. On cross-examination, however, Jones admitted that in an oral statement taken in the office of the State’s Attorney on March 14, 1961, he had stated that defendant had been among those present at the event in issue and had had intercourse with Mrs. Wells. This statement by Jones was also impeaching of his testimony that no force was exerted on her.

Johnnie Walker

He had intercourse with Catherine Wells at the time and place in question, but it was not against her will. This testimony was also impeached by the introduction into evidence of an earlier statement by Walker in which he indicated that force had been used.

Opinion

Defendant contends that he was not one of the eight men who participated in the rape of Mrs. Wells. However, testimony of the prosecutrix is to the contrary. She positively identified defendant, first, as one of the men in the automobile which carried her away from the bus stop, and, second, as one of the men who engaged in sexual intercourse with her in the basement. While Sam Jones testified that defendant was not present at the multiple rape episode, this testimony, as indicated, was not only contradicted by Mrs. Wells, but was also impeached by his prior inconsistent statements. Further, the identification testimony is strengthened by the surrounding circumstances, there having been adequate time and sufficient lighting in the basement for prosecutrix to observe the appearance and to determine the identity of the men who raped her. Although uncorroborated by the testimony of other State witnesses, the testimony of the prosecutrix was clear and convincing, and therefore is sufficient to support a conviction. People v. Mack, 25 Ill2d 416, 420, 185 NE2d 154; People v. Walden, 19 Ill2d 602, 608, 169 NE2d 241; People v. Gardner, 61 Ill App2d 326, 335, 210 NE2d 545.

Defendant also argues that the prosecutrix was a voluntary participant in the acts of intercourse. We think the record establishes the contrary. In the first moments of her ordeal, Mrs. Wells was grabbed around the throat and pulled backwards from her bus stop into an alley, where she was surrounded by three men. She was then “pulled out of this alley and pushed in this car” where she found herself surrounded by six men. Once in the basement she testified that “ [t]hey had taken my shoes off, tore my skirt off of me.” True, her testimony does not describe active physical resistance at the time Jones had intercourse with her alone in the car, but the fact that five other assailants stood just outside the car must be considered. The same situation existed during the basement assaults where seven other assailants were present at all times in the immediate area. We also find substantiation on the question of involuntariness in the fact of Mrs. Wells’ prompt report of the attack to her husband and the police.

We think it reasonable that a forty-year-old woman, pulled off the public sidewalk and thrown into the unfriendly company of six to eight strangers, under all the circumstances of this case, would find her will to resist overcome. People v. Finley, 22 Ill2d 525, 529, 177 NE2d 149. Evidence of the sudden abduction and aggressive method in which Mrs. Wells was taken from street to alley to car to basement by her several assailants indicates that her active resistance would have been futile and was therefore unnecessary to sustain the conviction. People v. Faulisi, 25 Ill2d 457, 461, 185 NE2d 211. In this context, we cannot say that the evidence is so improbable or unsatisfactory as to leave a reasonable doubt as to defendant’s guilt. People v. Henson, 29 Ill2d 210, 214, 193 NE2d 777.

Defendant’s contention of a fatal variance in dates between the indictment and the proof adduced is not well founded. It is true that the date of the offense as recited in the indictment was March 7, 1961, and the prosecutrix Was asked to relate what occurred on March 13, 1961. However, the indictment and the evidence move into accord later in Mrs. Wells’ testimony where she states that she was called to the police station on the 13th or 14th of March to identify her attackers, and that this was “[a] week or eight days” after the rape. Further, direct examination by defense counsel of Sam Jones and Johnnie Walker clearly fixes the night of the rape at March 7, 1961, even though the date of March 2, 1961, appears on cross-examination of Jones.

While the record we have before us does indicate that defendant was under a separate indictment for rape committed on March 12, 1961, as well as the March 7, 1961 rape, the record also discloses that Catherine Wells was involved only in the rapes perpetrated on March 7, 1961. The State’s case, including the positive identification of defendant, is based on testimony of the complaining witness, and her testimony necessarily relates to the enormities committed against her, without regard to any other crimes allegedly committed by defendant involving other victim (s). Even if there were a clear variance as to time between the indictment and the evidence, reversal would not be required. As was stated in People v. Schmidt, 10 Ill2d 221, 227-228, 139 NE2d 726:

Every indictment must allege the commission of the offense on a certain date prior to the return of the indictment, which must be within the time fixed by law for the prosecution of the offense. It is not necessary, however, to prove the precise date as alleged unless the allegation of a special time is an essential ingredient of the crime or the running of the statute of limitation is involved. A slight variance as to the dates is immaterial. . . .

See, also, People v. Rohde, 403 Ill 41, 44, 85 NE2d 24. The date is not an “essential ingredient” of the crime of rape and there is no limitation problem in the instant case.

The judgment of the trial court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ„ concur.

       The pertinent parts of the statute in effect at the time in question provided:
      Rape is the carnal knowledge of a female, forcibly and against her will. . . . Every person convicted of the crime of rape shall be imprisoned in the penitentiary for a term not less than one year and may extend to life. Ill Rev Stats (1959), c 38, § 490.

       This case was transferred here from the Supreme Court where it had been originally filed.

       In that indictment defendant and others were found guilty of raping Patricia Duminie on March 12, 1961, and defendant was sentenced to a term of thirty-five years. Appeal from that conviction is pending.


author: ALLOY, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Norris Peters, Defendant-Appellant.
    Gen. No. 65-92.
    Third District.
    March 13, 1967.
    N. L. McGehee, of Silvis, for appellant.
    Richard Stengel, State’s Attorney, of Rock Island, for appellee.
   ALLOY, J.

Norris Peters was convicted of Armed Robbery in a jury trial held in the Circuit Court of Rock Island County. He was sentenced to a term of not less than five years nor more than twelve years in the State Penitentiary. There was evidence presented on trial of this cause to the effect that defendant, on March 22, 1965, together with another man who was never identified or tried, entered a certain building in Rock Island, Illinois, at about 6:00 p. m. and committed an armed robbery in the office of Merchants Credit Association. The evidence indicated that defendant held a pistol in his hand at the time. He was observed and identified by employees who were compelled to remove certain moneys from a safe located on the premises amounting to $209.78 which was taken in the robbery. Two days later, a deputy sheriff, following a call, investigated a certain 1957 Oldsmobile automobile in Silvis, Illinois, which was being driven by defendant without lights. The defendant had no driver’s license with him and he was taken by the deputy to the Silvis Police Department. While defendant was in the Police Department he asked to go into the wash room, and because he had picked up the heavier of two coats which he had in the car and acted in a suspicious manner, the policeman searched him and found a pistol together with ammunition on his person. During the course of the trial the pistol and ammunition found on the person of the defendant were introduced in evidence.

On appeal in this court, defendant contends that the admission into evidence of the .38 caliber revolver and the 12 rounds of ammunition found upon him two days after the robbery, when such weapons were not definitely connected to the crime, constitutes reversible error; that the court made-prejudicial remarks to the jury; and that the court also erred in refusing an instruction tendered by the defendant.

From the record in this cause, it appears that the defendant was found two days following the robbery with a weapon which was identified by two witnesses as being similar to the weapon which was used in the robbery. As we have indicated, defendant was also directly identified by witnesses as having participated in the robbery. In People v. Jones, 22 Ill2d 592, 177 NE2d 112, a revolver was found in an automobile in which that defendant was riding eight days after a murder. The weapon was admitted in evidence. In that case the automobile was originally searched following a traffic arrest and after a gun was found a witness stated that the gun looked like the one used in the shooting. The Supreme. Court concluded that the gun was sufficiently connected up with the crime to be admissible and relevant. In People v. Ashley, 18 Ill2d 272, 164 NE2d 70, the defendant had been arrested six days following the offense. In that case the weapon which' was introduced in evidence was not on the person of the defendant. The testimony indicated that at the time of the offense, the defendant used a silver-plated gun. A ballistics expert testified that the bullet taken from the victim’s body came- from the same gun introduced at the trial, even though there was no showing that defendant owned or had the weapon in his possession. The Supreme Court concluded that where it was shown that defendant possessed a weapon which could have been used in the commission of the crime, that weapon could be admitted into evidence. Under the evidence in the record before us the admission of the revolver and the ammunition was proper and would not constitute reversible error.

In the course of the examination of one of the witnesses, in referring to the gun which had been introduced in evidence, a witness who was one of the holdup victims was asked if she recognized the gun tendered in court as being the one used in the robbery or one similar to it. She stated that it didn’t seem as wide as it did that night and then asked if she could push down the shell chamber. She stated that on the night of the robbery it seemed that it stood out because of the chamber. The court then asked her: “It looked pretty big to you as it was pointed at you?” The witness then said that it did and then the witness, after being questioned further by counsel, stated that as far as she could tell from looking at the gun in court, it was the same gun she saw on the night of the robbery.

On appeal in this court, the defendant contends that the question from the trial judge: “It looked pretty big to you as it was pointed at you?” was prejudicial and constituted reversible error. While it is true as the Supreme Court has stated in People v. Coli, 2 Ill2d 186, 117 NE2d 777, at 779, that a judge should exercise great care to avoid making any comment likely to lead the jury to believe that his opinion is in favor of or against the defendant, we do not believe that the record in this cause is susceptible of any such interpretation. In the Coli case it was obvious that the judge implied an opinion to the jury as to defendant’s guilt. In the case before us the court was simply asking a question of the witness and first asked the witness whether she said as to the gun: “Did you say whiter or wider?” The court was apparently attempting to clarify just what the difference was that the witness referred to. The judge then used the language “pretty big” as an alternative to the expression “wide” in form of a question and was apparently trying to clarify an ambiguity. As a result of the exchange, the ambiguity was not explained away, but following further testimony elicited by the State’s Attorney, the witness identified the weapon as being similar to the one actually used. No objection or motion to strike was made at the time. It is obvious that the commentary of the judge standing alone, under the circumstances in this case, could hardly warrant a reversal (Featherstone v. People, 194 Ill 325, 62 NE 684). It was apparent that the trial court was acting within the scope of its discretion and did not intend the question to be interpreted as a comment upon the evidence. We find no reversible error in such questioning by the court.

Defendant also argues in this court that the trial court erred in refusing an instruction tendered by defendant which advised the jury that if they could reconcile the evidence in this case with any other reasonable theory or hypothesis than that of this defendant’s guilt, it was the jury’s duty to acquit the defendant. Defendant contends that on the basis of Larrance v. People, 222 Ill 155, 78 NE 50, such instruction should have been given. In that case, defendant and decedent each drew a revolver and the evidence was conflicting as to whether or not the defendant acted in self-defense. The only defense offered was reasonable doubt and the case leaves uncertain whether or not there were other instructions as to reasonable doubt. In the case before us, it is notable that the instruction was merely one concerning reasonable doubt. The defense offered in the cause now under consideration was a defense of alibi and the jury was more than adequately instructed concerning such defense. The jury was also clearly instructed on the State’s burden of proof beyond a reasonable doubt. Since the jury was adequately instructed as to the material requirements of the State’s case and as to defenses made by • defendant, the further instruction tendered by defendant on reasonable doubt was not required since it would simply be repetitious (People v. Moretti, 6 Ill2d 494, 129 NE2d 709; People v. Lyons, 4 Ill2d 396, 122 NE2d 809). In People v. Lyons, supra, the court clearly indicated that a defendant has no right to have the applicable rules of law repeated in various forms by different instructions and that it was not error to refuse to give such cumulative instructions. We, therefore, conclude that there was no reversible error in the refusal of such instruction.

Since we find no reversible error in this cause, the judgment of the trial court will be affirmed.

Affirmed.

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


author: CORYN, J.

text:
    Waverly Naslund, Executor of the Last Will and Testament of Mary Cecil Naslund, Deceased, Plaintiff-Appellee, v. Robert W. Watts, Haskell D. Gill and Donald C. Schuster, Partners Doing Business as Johnson-Gill-Schuster Funeral Home, and Albert M. Raisback, Defendants-Appellants.
    Gen. No. 66-43.
    Third District.
    March 13, 1967.

      Stuart, Neagle & West, of Galesburg, and Cassidy, Cassidy, Quinn & Lindholm, of Peoria, for appellants.
    Barash & Stoerzbach, of Galesburg, for appellee.
   CORYN, J.

This is an appeal by all of the defendants from a. judgment in the amount of $15,000 entered against them upon a verdict in a suit for wrongful death under Ill Rev Stats, c 70, § 1, and for funeral expenses under the Family Expense Statute, Ill Rev Stats, c 68, § 15. The controversy arises from a motor vehicle collision which occurred at approximately 9:30 p. m., July 15, 1963, on U. S. Highway 34 in Knox County, north of Galesburg. A dump truck, owned and operated by defendant, Robert W. Watts, collided with an ambulance owned by Haskell D. Gill and Donald C. Schuster, d/b/a Johnson-GillSchuster Funeral Home, which was being driven by defendant, Albert M. Raisback. Mary C. Naslund, the decedent, with two of her daughters who were attending her, was riding as a passenger for hire in the ambulance, and she and her daughter, Bertha Pierson, both died as a result of the injuries sustained in this collision. Defendants, Haskell D. Gill, Donald C. Schuster, and Albert M. Raisback are prosecuting their appeals jointly, and will hereinafter be referred to as “Funeral Home.”

All of the defendants argue that the verdict is grossly excessive. In addition, the Funeral Home argues that the evidence shows, as a matter of law, that it was not guilty of any negligence which proximately caused the occurrence, but that said occurrence was due solely to the negligence of defendant Watts. Watts argues that there is no evidence that he was guilty of any of the negligent acts charged in the complaint, and that the verdict against him is contrary to the manifest weight of the evidence, and the law. Watts also argues that the trial court erred in giving plaintiff’s instruction No. 11 and Funeral Home’s instruction No. 3. Funeral Home argues that the court erred in refusing to give its instruction No. 2.

On the evening in question, the family of decedent called the Funeral Home at Galva, requesting ambulance service for the purpose of transporting Mrs. Naslund from her farm home near Williamsfield to a hospital in Galesburg. It was not an emergency call. Defendant Raisback, an employee of the Funeral Home, drove the ambulance, and Howard Cubbon, also an employee of the Funeral Home, rode along as an attendant. The ambulance arrived at the Naslund home shortly after 9 p. m., whereupon Mrs. Naslund was placed on a cot and put in the ambulance. Bernice Pennington and Bertha Pier-son, daughters of decedent, rode in the ambulance, Mrs. Pierson riding in the front seat with the driver, and Mrs. Pennington riding in the back seat with the attendant and her mother.

U. S. Highway 34, north of Galesburg, is a two-lane hard surfaced highway running generally in a northerly and southerly direction. It was, at the time of the collision, a clear night, and the pavement was dry. Prior to the accident the ambulance was traveling southbound on Highway 34. Watts lived some four to five hundred feet east of Highway 34, and from his home there was an east-west private road running out to and intersecting with Highway 34. Watts testified that on the evening in question he drove his dump truck on the private road westerly from his home to a stop at the easterly side of Highway 34 where he waited for a number of vehicles to pass, and then turned left onto the highway and proceeded in a southerly direction. Watts stated that before he turned onto the public road, he looked to his right and saw some red lights about one-half mile to the north of him. The ambulance, at this time, was approaching from the north, and Raisback, the driver, stated that he had the headlights and the red emergency lights on, and that he was traveling approximately sixty miles per hour. He claims that he first saw the Watts’ truck when he was approximately 400 feet north of it, and that at that time the Watts’ truck was stopped on the east side of, and was perpendicular with, Highway 34. Raisback continued south at approximately sixty miles per hour in the southbound lane of traffic. Immediately prior to the impact, he applied his brakes, but was unable to avoid the accident. The right front fender of the ambulance collided with the left rear corner of the truck. Raisback was unable to avoid the collision by pulling into the northbound lane of traffic because another vehicle, traveling northerly, was approaching him in that lane. After the impact the ambulance came to rest in the northbound traffic lane, headed in a southerly direction, and approximately seventy-five feet south of the point of impact. The Watts’ truck came to rest on the right shoulder of the highway a short distance south of the point of impact, and was upside down facing in a northerly direction. A state trooper testified that the point of impact was eighty-eight feet south of the point where the Watts’ driveway intersected Highway 34.

All of the' defendants admit that the plaintiff is entitled to recover in this case, but the Funeral Home and the defendant Watts each argue that he or it was free from negligence, and that the actions of the other constituted the negligence which proximately caused this collision. The trial court, without objections from any of the defendants, instructed the jury, “[T]hat as a matter of law neither the decedent, Mary Cecil Naslund, nor any of her next of kin were guilty of any contributory negligence with respect to the occurrence in question.” The jury, then, had only two issues to decide: first, should there be any joint or separate liability imposed upon either Watts or the Funeral Home, and second, what was the extent of the damages to plaintiff.

A negligent act or omission may be a proximate cause of injury where it concurs with other causes acting at the same time which, in combination with it, result in the injury. Kinsch v. DiVito Const. Co., Inc., 54 Ill App2d 149, 203 NE2d 621; Bernard v. Elgin, J. & E. Ry. Co., 34 Ill App2d 466, 181 NE2d 613. Where injury or damage is caused by the concurrent negligence of two persons and the accident would not have occurred without the negligence of both, the negligence of each is the proximate cause of the injury or damage. American Nat. Bank & Trust Co. v. Peoples Gas Light & Coke Co., 42 Ill App2d 163, 191 NE2d 628. In such instances one guilty of negligence cannot avoid responsibility therefor merely because another person also is guilty of negligence contributing to the same injury or damage, notwithstanding the injury or damage would not have occurred but for the negligence of the other person. Springfield Consol. Ry. Co. v. Puntenney, 101 Ill App 95. The issue of whether separate acts of negligence concurred as a proximate cause of injury is for the determination of the jury. We think the record here supports the jury’s conclusion that the conduct of both Watts and the Funeral Home constituted concurring acts of negligence which proximately caused the death of Mrs. Naslund. In our opinion it could reasonably be inferred by the jury from the evidence that Watts ignored the approaching ambulance when proceeding onto the highway, and that the ambulance driver, who was not on an emergency run, failed to keep a proper lookout and attempted to pass Watts when it was not safe to do so, and that these concurring acts of negligence were the proximate cause of the collision.

Watts argues that it was error for the trial court to give plaintiff’s instruction No. 11, which is IPI 34.05, and which is designed to be used in wrongful death cases where mortality tables have been admitted in evidence, as they were in this case. Watts’ objection was directed towards paragraph 3 of this instruction, which paragraph informed the jury that they must reduce to present cash value any award for future pecuniary damages suffered by the next of kin. The basis of Watts’ objection was “that the evidence failed to form a foundation that pecuniary benefits flowed from the deceased to her adult children.” We conclude that there was sufficient evidence upon which to base this instruction, and that the giving of this instruction, in conjunction with the giving of plaintiff’s instruction No. 36 (IPI 31.04) and the Funeral Home instruction No. 8 (IPI 31.03) correctly instructed the jury on the damage issue of this case. .

Watts next argues that the court erred in giving Funeral Home instruction No. 3, which stated:

“The plaintiff claims that Mary Cecil Naslund was injured and killed because the defendant, Robert W. Watts, was negligent in failing to yield the right-of-way to the ambulance in which Mary Cecil Naslund was riding, and he was about to enter Route 34, or to cross the same, and that said defendant’s failing to yield the right-of-way was a proximate cause of Mary Cecil Naslund’s death.
“The defendant, Robert W. Watts, denies that he failed to yield the right-of-way, denies that he was negligent, and denies that any claimed act or omission on his part was a proximate cause of such death.
“Said defendant further denies that said decedent’s next of kin sustained damages to the extent claimed.”

Plaintiff’s complaint separately charged Watts and Funeral Home with several acts of negligence. Yet plaintiff tendered an issue instruction (plaintiff’s instruction No. 34-IPI 20.01 Modified) which framed the issues between plaintiff and Funeral Home, and made no mention of the issues between plaintiff and Watts. The Funeral Home then tendered said instruction No. 3, which merely set out the issues omitted from plaintiff’s instruction No. 34. We conclude that plaintiff’s instruction No. 34 and Funeral Home instruction No. 3, together, correctly state the issues raised by the pleadings, and that these instructions were properly given by the court.

Funeral Home complains of the trial court’s refusal to give its instruction No. 2, which informed the jury, in the language of the statute, that “The driver of a vehicle about to enter or cross a highway from a private road or driveway, should yield the right-of-way to all vehicles approaching on said highway.” We note that this defendant’s theory of the case, i. e., that not it, but Watts caused the collision, was fully covered by the above stated Funeral Home instruction No. 3, and consequently, we are of the opinion that the refusal of the court to give Funeral Home instruction No. 2 did not constitute prejudicial error.

The last issue in this appeal, raised by all the defendants, is that the verdict is grossly excessive. The record discloses that plaintiff’s instruction No. 36, given without objection by any of the defendants, informed the jury that “where the decedent leaves children and a grandchild, the law recognizes a presumption that they have sustained some substantial pecuniary loss by reason of the death.” This presumption, in our opinion, applies even where the decedent was an adult and the lineal kinsmen are also all adults, Hall v. Gillins, 13 Ill2d 26, 147 NE2d 352; Dukeman v. Cleveland, C., C. & St. L. R. Co., 237 Ill 104, 86 NE 712; Ferraro v. Augustine, 45 Ill App2d 295, 196 NE2d 16; but cf., Barrow v. Len.ce, 17 Ill App2d 527, 151 NE2d 120, and must be considered by the jury with any evidence offered regarding damages, if there is such other evidence, or alone, if no such evidence is presented, in determining what it will award in a wrongful death suit if it decides in favor of the plaintiff.

Evidence adduced in the instant case indicates that decedent, at the time of her death, was a widow, seventy-seven years of age, who owned and lived on a 110-acre farm. She also owned the farm machinery and cattle on this farm. She made her own decisions concerning the operations of her farm, even though her son, Waverly Naslund, farmed this land on a sharecrop basis with her. Her annual income from the farm was approximately $1,500, and in addition to this, she received monthly social security payments of $68. She was an industrious, conservative person, who handled her own bank account and paid her own bills. She provided a home on the farm for her daughter, Bernice Pennington, who testified that decedent helped with the housework and baking, and paid for the utilities, groceries, fuel bills, and all the expenses of their household. Mrs. Naslund did sewing for her family, gave them gifts, rendered advice to them, and sometimes baby-sat with her grandchildren. Her physician, who had last seen her eight or nine days before her death, testified that her general health was fair for a woman of her age, but that she did have hypertension, arteriosclerosis, arthritis, anemia, and a chronic leukemic condition. The doctor testified that Mrs. Naslund “could die very shortly or live a long time,” and that these conditions would necessarily reduce the normal life expectancy of a person her age. The mortality table, admitted into evidence, shows that a white female at the age of 77 years, has a life expectancy of seven years. The medical and funeral expenses amounted to $1,301.60. The lineal descendents of Mrs. Naslund, represented in this suit, are Bernice Pennington and Mildred Smith, daughters; Waverly Naslund, a son; and Mary Diane Pierson Potts, a granddaughter, the heir-at-law of Bertha Pierson, the daughter who predeceased Mrs. Naslund.

The amount of damages to be awarded in a wrongful death action cannot be determined with mathematical certainty, and rests largely with the'discretion of the jury. Jury awards, in such cases, should not be set aside on review unless they are evidently the result of passion or prejudice, or bear no relation to recovery for pecuniary injuries to lineal descendents. In the instant case the plaintiff did not rely solely on the presumption of pecuniary loss that obtains to lineal kinsmen, but offered evidence of the character of decedent, her mental and physical capacity, her prospects for life, her habits of industry, the amount of her usual earnings, and the nature of the benefits being bestowed by the decedent on her descendents at the time of her death. Although other reasonable persons sitting as triers of fact might have fixed the award in this case at a lesser amount than that fixed by this jury, we do not believe that the record herein discloses that the award of $15,-000 was the result of the jury’s passion or prejudice, or that it bears no reasonable relation to the pecuniary injuries suffered by the lineal descendents. Consequently, the judgment is affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.


text:
    Hall Township High School District No. 502, Bureau County, Illinois, Plaintiff-Appellant, v. County Board of School Trustees of Bureau County, Illinois, Joseph O. Newcomer, Ex Officio, Secretary of Said County Board of School Trustees of Bureau County, Illinois, Wilbur Pinter, Roberta Pinter, and LaMoille Community High School District No. 509, Bureau County, Illinois, Defendants-Appellees.
    Gen. No. 66-65.
    Third District.
    March 13, 1967.
    Rehearing denied April 17, 1967.
    William J. Wimbiscus, Jr., of Spring Valley, and Roger V. Pierson, of Princeton, for appellant.

      Peterson, Johnson & Martin, Trimble & Trimble, and C. Howard Wampler, all of Princeton, for appellees.
   CORYN, J.

This is an appeal by plaintiff, Hall Township High School District #502, from an order of the Circuit Court of Bureau County affirming the order of defendant, County Board of School Trustees of Bureau County, which order permitted the detachment of land owned by defendants, Wilbur and Roberta Pinter, from the Hall District and its annexation to defendant, LaMoille Community High School District No. 509.

The facts are undisputed. On July 31, 1964, the Pinters filed with the County Board a petition for detachment from Hall District and annexation to LaMoille District. On September 3, 1964, this petition was allowed. Hall District then filed a complaint for administrative review in the Circuit Court of Bureau County, which was docketed as Cause No. 64-9-217M. On October 14, 1965, the Circuit Court reversed the decision of the County Board for the reason that its order was void for want of jurisdiction because the superintendent of schools, who is ex officio secretary of the County Board, had failed to send a copy of the Pinters’ petition to the school districts to be affected, as required by statute (Ill Rev Stats, c 122, § 7-6). On December 13, 1965, the Pinters filed a second petition with the County Board, again requesting detachment from Hall District and annexation to LaMoille District. This petition was identical with their earlier petition of July 31, 1964, except that it alleged the adjudication of the Circuit Court in Cause No. 64-9-217M. On February 1, 1966, after a hearing, the County Board granted the prayer of the second petition, and ordered that Pinters’ property be detached from Hall District and annexed to LaMoille District. On February 16, 1966, Hall District filed its second complaint for administrative review with the Circuit Court of Bureau County. The sole issue presented in that proceeding in the Circuit Court was whether the statute, i. e., Ill Rev Stats, c 122, § 7-8, prohibits the County Board from considering the Pinters’ second petition, it having been filed within one year from October 14, 1965, the date on which the Circuit Court reversed the decision of the County Board on the initial Pinter petition. On June 14,1966, the Circuit Court overruled this assertion and affirmed the order of the County Board, entered February 1, 1966, whereby the annexation of the Pinter property to LaMoille District was allowed. It is from this order that Hall District appeals.

The purpose of the provisions of Ill Rev Stats, c 122, § 7-8, is to prevent the harassment of County Boards, School Boards of affected districts, and interested persons, by successive petitions to detach or annex the same territories. Consequently, the legislature limited the right of such petitions by providing in § 7-8 that any territory, or part thereof, which was involved in a previous petition that was denied, cannot again, within one year after final determination of the first proceeding, be the subject matter of a proceeding to change the school district boundaries. We are of the opinion that the final determination contemplated by § 7-8, from which the one-year limitation commences, is one entered in a valid proceeding where jurisdiction to adjudicate was present, and where the denial of the petition for change of boundaries was based upon its substantive merits. Inasmuch as the action of the County Board approving the Pinters’ first petition was held void by the Circuit Court in Case No. 64-9-217M for want of jurisdiction, and no final determination was had on the substantive merits of this petition, we conclude that the one year limitation does not apply to the Pinters’ second petition. See, The People v. Hurst, 401 Ill 158, 161, 81 NE2d 491. Accordingly, the order of the Circuit Court of Bureau County is affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.


author: PRESIDING JUSTICE STOUDER.

text:
    Judy K. Swift, Administrator of the Estate of Earl Swift, Deceased, Appellant-Plaintiff, and Judy Swift Gordon, Appellant-Intervening Plaintiff, v. Hemp and Company, King-Seeley Thermos Company, Successor in Interest to the American Thermos Products Company, Appellee-Defendant.
    Gen. No. 66-68.
    Third District.
    March 13, 1967.
    Scott & Sebo, of Canton, for appellant; Berry, Leighty & Simshauser, of Macomb, for appellee.
   Opinion by

PRESIDING JUSTICE STOUDER.

Not to be published in full.


author: TRAPP, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Oliver Young, et al., Defendants. Oliver Young, Defendant-Appellant.
    Gen. No. 10,772.
    Fourth District.
    March 16, 1967.

      C. Joseph Cavanagh, of Springfield, for appellant.
    John E. Grosball, State’s Attorney of Menard County, of Petersburg, for appellee.
   TRAPP, J.

Upon waiver of jury and a bench trial, defendant was convicted of attempted murder and aggravated battery. In this appeal of the judgment and sentence, it is contended that defendant was denied a statutorily required hearing on restoration of competency under the provisions of chap 38, § 104-3 (c) (Ill Rev Stats, 1965); that at the time of the trial, defendant had not been legally found competent so that he was deprived of due process of law; and finally, that defendant’s guilt was not established beyond a reasonable doubt.

The relevant facts include the following:

Following indictment, appointed counsel, who also appears in this proceeding, filed a suggestion of incompetency to stand trial, hearing was had and the court entered an order finding that the defendant was incompetent within the language of chap 38, § 104-1 (Ill Rev Stats, 1963), because of a mental condition and ordered that he be committed to the Department of Mental Health “during the continuance of such mental condition.” Some three months later defendant appearing pro se filed his petition for writ of habeas corpus in the Circuit Court of Randolph County, praying his discharge from the Illinois Security Hospital at Menard, Illinois, In the return to the writ, the hospital authorities denied that the defendant had recovered and averred that he was still an incompetent person. The Circuit Court of Randolph County ordered the discharge of the petitioner, its order reciting trial and hearing of witnesses, and finding that defendant was cured of his incompetency. Upon his release defendant was returned to Menard County and trial upon the indictment was had.

The record discloses that a certified copy of the habeas corpus proceedings in Randolph County was supplied to defendant and his counsel, and further shows that counsel had examined such proceedings and suggested to the court that such hearing was had without notice to the State’s Attorney of Menard County and without notice to defendant’s attorney of record, and stated:

“. . . that this order does not at least comply with the spirit of the statute in matters of restoration of competency to stand trial. . . .”

The court noted that no motions had been filed, or any pleading made upon the point, and expressed the feeling that he did not have the right to examine the validity of the habeas corpus proceedings.

Habeas corpus is a proper remedy to procure release where there has been a recovery from insanity. Swager v. Gillham, 278 Ill 295, 116 NE 71. The present Mental Health Code, chap 91½, § 10-13, § 10-14 and § 10-15 (Ill Rev Stats 1965), expressly preserve habeas corpus as a means of relief. Such sections also expressly provide that in habeas corpus proceedings the “need for mental treatment” shall be determined by the court issuing the writ. In the Code of Criminal Procedure of 1963, chap 38, the Committee Comments to § 104-3 (c) note that proceedings to determine whether competency has been regained follows the procedure of the Mental Health Code. Such Committee Comments are a proper guide to legislative intent. People ex rel. Suddeth v. Rednour, 33 Ill2d 278, 211 NE2d 281. It appears, therefore, that the Legislature expressly retained habeas corpus as a procedure to establish recovery of mental competency in addition to the hearings provided in the Mental Health Code and the Code of Criminal Procedure of 1963.

The Circuit Court of Randolph County had jurisdiction of the person of the defendant and the subject matter of habeas corpus. The judgment of a court of competent jurisdiction is valid, and binding whether warranted by the testimony or erroneous. In Swager v. Gillham, 278 Ill 295, 116 NE 71, the Supreme Court held that a court which had ordered discharge of the defendant pursuant to a writ of habeas corpus cannot, thereafter, set aside such order after the expiration of the term. See also The People v. Righeimer, 306 Ill 308, 137 NE 858, asserting the validity of the order of discharge. Neither the Circuit Court of Menard County, nor this court has the jurisdiction to attack the proceedings in habeas corpus in Randolph County.

The order committing the defendant to the Department of Mental Health entered by the Circuit Court of Menard County was “during the continuance of the mental condition.” It is argued that the discharge through habeas corpus was not a restoration of competency, but only a suggestion to the Circuit Court of Menard County that the defendant might not be competent to stand trial. We do not agree. Under the authority of The People v. Lewis, 2 Ill2d 328, 118 NE2d 259, any prima facie evidence of incompetency resulting from the order originally entered by the Circuit Court of Menard County was rebutted by the finding of the Circuit Court in Randolph County. When the defendant has been freed by a writ of habeas corpus, upon subsequent trial had, it is open to him to raise the question of his competence to stand trial at that time, and to request a hearing thereon. Pate v. Robinson, 383 US 375, 15 L Ed2d 815, p 823. The duty of the trial court in this proceeding was to impanel a jury to determine the competency of defendant upon suggestion of counsel, or upon observations of the defendant made by the court. The People v. Anderson, 31 Ill2d 262, 201 NE2d 394. The record shows no suggestion of incompetency under chap 38, § 104-2 made by counsel, and it is not here argued that the record discloses that the defendant was unable to understand the nature of the proceedings, or to assist counsel in preparing for defense of the charges. The record discloses no conduct of the defendant of the quality to suggest to the trial court that he was not competent to stand trial. No evidence concerning defendant’s want of competency was offered so far as we have been able to discover. Upon the argument now made that there was never a proceeding determining that the defendant had regained his competency so that the cause should be remanded for proceedings under chap 38, § 104-3 (c), it does not appear that such contention was ever raised in the trial court. The issue of the restoration of competency from a habeas corpus proceeding in Randolph County was not presented to the trial court and is not now properly raised on appeal. The People v. Heirens, 4 Ill2d 131, 122 NE2d 231; The People v. Swets, 24 Ill2d 418, 182 NE2d 150.

Defendant urges that People ex rel. Suddeth v. Rednour, 33 Ill2d 278, 211 NE2d 281, requires the reversal of the judgment in this case. There are, however, many differing factors. That determination arose upon direct appeal from the judgment of the lower court, and the element of the validity of the judgment of a court of competent jurisdiction is not present. That case also differs upon the facts in that the trial court denied defendant’s motion for a jury trial. It is therein noted that the provisions of the Code of Criminal Procedure of 1963, chap 38, § 104-3 (c) are correlated with the Mental Health Code. Chap 91½, § 10-4 (Ill Rev Stats 1965) of that Code provides for a jury trial pursuant to the provisions of Art 8 of that Code. Section 6 of Art 8 expressly provides for jury trial upon “demand” by one whose competency is an issue. In Rednour the trial court denied the motion which was the equivalent of a statutory demand. We conclude that Rednour is not controlling under the circumstances of this case.

Upon the issue of the sufficiency of the evidence to convict, the trial court heard the testimony of the witnesses and observed their conduct and demeanor. His memorandum, filed in this case, discloses careful consideration of the arguments of counsel upon the issue of the sufficiency of the evidence in the light of the asserted contradictions in the testimony of the witnesses. He sets forth the reasons for his judgment. The details pointed out by defendant in his argument are not of such character or quality as to lead to a conclusion that the conviction is contrary to the manifest weights of the evidence.

The judgment of the trial court is affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE LYONS

text:
    Francis Michael Palier, Counter-Defendant-Appellee, v. Dreis and Krump Manufacturing Company, an Illinois Corporation, Defendant, v. New City Iron Works, Counter-Plaintiff-Appellant.
    Gen. No. 51,002.
    First District, Second Division.
    February 27, 1967.

      Herbert L. Caplan, of Chicago (Herbert L. Caplan and John H. Scheid, of counsel), for appellant.
    Leonard M. Ring, of Chicago, for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from an order dismissing a counterclaim for indemnity brought by New City Iron Works, a third party defendant in the proceedings below, against Francis Michael Palier, its employee and original plaintiff to the action. The counterclaim against Palier was filed in response to a third party complaint impleading New City Iron Works brought by Dreis and Krump Manufacturing Company, a defendant in this action, for damages under The Structural Work Act in a suit initiated by Palier.

On September 8, 1960, the original plaintiff and now counter-defendant-appellee, Francis Michael Palier (hereinafter referred to as Palier) was in the employ of the third party defendant and counter-plaintiff-appellant, New City Iron Works (hereinafter referred to as New City) as a structural iron worker of some seventeen years’ experience. Palier was working on the premises of defendant and third party plaintiff, Dreis and Krump Manufacturing Company (hereinafter referred to as Dreis and Krump). Palier personally erected a hanging scaffold some thirty to thirty-five feet above the ground which hung from the building’s framework. The scaffold, a small plywood deck with a one-inch lip around its perimeter, was erected without the protection of the customary two by four-inch guard rails in specific violation of paragraph 2 of section 60 of The Structural Work Act, more commonly referred to as the Scaffold Act (111 Rev Stats 1965, c 48, par 60). Palier was in the process of bolting up certain girders with an air impact wrench and riveting gun atop the scaffold. He had taken up with him numerous bolts, pins, and washers onto the scaffold, some of which he scattered on the floor of the deck on which he was working. Stepping back to position the riveting gun, Palier slipped on one of these loose pins or bolts on the floor, causing him to fall backward off the scaffold resulting in the injuries for which his claim was brought against Dreis and Krump under the Scaffold Act. New City had paid Palier, its employee, benefits in the amount of $2,818.20 under the Workmen’s Compensation Act.

Dreis and Krump filed a motion for summary judgment against Palier which was sustained by the trial judge, appealed, reversed and remanded, and is still pending determination. Dreis and Krump then filed a third party complaint based on implied indemnity against New City. New City filed a motion to dismiss that complaint, which was denied. This third party action is also still pending at this time. New City then filed its counterclaim against Palier, based upon the same theory of implied indemnity by which it was impleaded. Palier filed an unsupported motion to dismiss the counterclaim which was sustained and from which this appeal is taken by New City. The relevant provision of the Scaffold Act (111 Rev Stats 1965, c 48, par 69), imposes civil liability upon:

Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, ....

It is appellant-New City’s theory of the case: (1) that Palier’s motion to dismiss its counterclaim admits all the allegations well pleaded, (2) that an impleaded party has the same right to maintain an indemnity action as any other defendant, (3) that an employer, vicariously liable for the negligence of its employee, may maintain an action for indemnity against that employee, and (4) that the counterclaim for indemnity is an action separate and apart from those traditionally barred by the Scaffold Act.

It is appellee-Palier’s theory of the case that no action for indemnity may be maintained against an injured workman who has recovered or seeks to recover for a wilful violation of the Scaffold Act because: (1) to permit such an action would, in effect, deny protection of the Act to any workman guilty of contributory negligence, and (2) to allow an employee’s negligence under the Act to bar or negative his right to recovery would frustrate the very object of the Act which was designed to eliminate such negligence as a defense to actions brought thereunder.

That a third party defendant has a right to maintain a proper indemnity action by way of counterclaim against the plaintiff, there can be no doubt. Ill Rev Stats 1965, c 110, par 25 (2) and par 38 (1). A motion to dismiss admits all of the allegations of the complaint or counterclaim well pleaded. On review of a dismissal made in response to such a motion, it is the function of this court to determine whether the facts alleged in the counterclaim, uncontested and standing alone, evidence any possibility of recovery. Should such a possibility appear, the order of dismissal must be vacated. Such a motion to dismiss does not, however, admit alleged conclusions of the pleader, opinions, argumentative matter, irrelevant material, or other parts not properly pleaded. Reat v. Illinois Cent. R. Co., 47 Ill App2d 267, 197 NE2d 860 (1964).

New City argues that since Palier’s negligent acts and omissions are admitted to be true and since an employer is vicariously liable for such conduct by its employee, it may maintain an action for indemnity against that employee even when no express indemnity agreement is in effect between the parties. Holcomb v. Flavin, 37 Ill App2d 359, 185 NE2d 716 (1962); Embree v. Gormley, 49 Ill App2d 85, 199 NE2d 250 (1964). This court recognizes the existence of such “implied” indemnity agreements. Essentially, this theory of indemnity has found its way into Illinois law because of this State’s long established refusal to allow contribution among tortfeasors who acted in pari delicto. Instead, it allows a passively negligent tort-feasor to obtain indemnification from an actively negligent tort-feasor on the basis of the legal fiction of an implied indemnity agreement.

The Holcomb and Embree cases relied upon by New City, however, involved indemnity actions by an employer against his employee as here, but only where the employee’s own negligence injured a third party, thus creating a vicarious liability upon the employer-indemnitee. These cases are distinguishable from the case at bar, for in the instant case the alleged negligence of the employee occasioned injury only to himself. Moreover, Palier’s opportunity for recovery is specifically provided for by two statutes to the exclusion of the common law.

New City’s reliance on the case of The John Griffiths & Son Co. v. The National Fireproofing Co., 310 Ill 331, 141 NE 739 (1923), where the court stated that the ultimate responsibility should be placed upon him whose fault was the primary cause of the injury, is equally not in point to the issue here involved because, unlike the facts under consideration, there existed an express written indemnity agreement between the parties.

New City further maintains that its indemnity action is separate and apart from the Scaffold Act and the immunities granted employees thereunder. It contends that the action it brings is based solely upon a liability which may accrue to them as a result of an action over by Dreis and Krump, independent of the Scaffold Act. The court is of the opinion that such a contention is not well founded. New City’s liability to Dreis and Krump, if at all, can only be predicated upon a violation of the Scaffold Act. It cannot be said that an indemnity action against an employee by an employer, whose indemnity counterclaim hinges upon the possibility of being liable to another under the provisions of the Scaffold Act, is an action separate and apart from such statute. We feel such a result would be incorrect.

New City next argues that Palier is, in the final analysis, attempting to obtain from it a double recovery in express violation of the Workmen’s Compensation Act, 111 Rev Stats 1965, c 48, par 138.5 (a), which defines but a singular liability for the employer:

No common law or statutory right to recover damages from the employer or his employees for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this Act, ....

Furthermore, New City maintains, notwithstanding the existence of the Scaffold Act, that an injured employee does not necessarily have a twofold remedy at his disposal. In this conjunction, it relies on Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785 (1961), where the Illinois Supreme Court said:

We also realize that under our view, the Scaffold Act may not always afford an injured party a remedy in addition to workman’s compensation. Since the Scaffold Act was enacted prior to the Workmen’s Compensation Act, it is obviously not designed to provide any such additional remedy, and any lessening of the effectiveness of the Scaffold Act is due, not to our construction of it, but to the provision in the Workmen’s Compensation Act making it the exclusive remedy against the employer. It is not the province of this court to distort the Scaffold Act in order to insure double remedy, and authorize, by indirection what the Workmen’s Compensation Act prohibits by a direct action.

The claim that Palier is seeking a double remedy from his employer in violation of such Act is totally without merit. Palier’s action is brought, not against New City, but rather Dreis and Krump, under the civil liabilities provision of the Scaffold Act, a statute clearly unrelated to the Workmen’s Compensation Act. The mere fact that an employer may be exposed to a second liability by way of indemnity does in no way, by itself, confer upon him a vested right to counterclaim against his employee as a setoff to this possible liability. The reasoning is clear. An employer is capable of violating the terms of the Scaffold Act as the person or thing “having charge of,” notwithstanding his absolute liability under the Workmen’s Compensation Act, whereas an employee is not. Moreover, the Workmen’s Compensation Act mitigates the effect of possible multiple liability being imposed on the employer. The Act provides that when an employee recovers damages from one other than his employer, in addition to his benefits under the statute, the employer may collect from that employee the amount of such benefits so paid or the amount the employee collected from a third person for the same injury, not to exceed the amount of the benefits paid by the employer. Ill Rev Stats 1965, c 48, par 138.5 (b).

The Gannon case equally bears little relevance to the issue before this court. In remanding that case so that plaintiff might properly try his case under that court’s interpretation of the Scaffold Act, the court said:

However, our interpretation certainly would not repeal the Scaffold Act as a civil remedy, as plaintiff suggests. Any employee or other person injured by a wilful violation of the act by any of the enumerated persons having charge of the structural work still has an action against such party.

New City stresses the inconsistency of the trial court’s refusal to allow its counterclaim against Palier and at the same time, permit the third party action over against it by Dreis and Krump, both being based on the identical theories of implied indemnity. The argument is fallacious simply because both indemnity actions are based on a liability which may accrue under the Scaffold Act. Palier is a protected person within the meaning of that Act, totally incapable of a violation thereof whether actively or passively. Conversely, New City, as owner of the scaffold, is capable of a violation thereof as, “any owner, contractor, subcontractor, foreman, or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building .. .,” and can be made to suffer indemnity for such a violation. As the Supreme Court stated in Miller v. DeWitt, No. 39428, 111 Supreme Court, decided September, 1966:

. . . although the liability imposed by the Structural Work Act does not rest upon negligence, there can be degrees of fault among those who, under the Act, are accountable to an injured plaintiff.

The fact that two different interpretations would have to be given the phrase “having charge of” by the court to implement such a right of recovery is of no consequence. The phrase, “having charge of,” is a generic term of broad import and is not limited to only those persons who actually erect a scaffold, or to an owner having supervision and control. Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247 (1965); Miller v. DeWitt, No. 39428, Illinois Supreme Court, decided September, 1966.

Under the Holcomb and Embree decisions previously discussed, an employer, vicariously liable for the negligence of its servant toward a third person, could save himself harmless by an indemnity action over against such employee as the employee is the active wrongdoer. This rule, however, does not obtain where, as here, the employee’s alleged contributory negligence occasions injury to himself alone under circumstances clearly within the purview of the Scaffold Act. Under the Act, the common-law defenses of contributory negligence, assumption of risk, and the fellow servant doctrine are no bar to recovery of an employee injured by a wilful violation thereof. Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785 (1961).

The object to be attained by the Scaffold Act was to prevent injuries to persons employed in this dangerous and extra-hazardous occupation, so that negligence on their part in the manner of doing their work might not prove fatal. The fact that a plaintiff may have been concurrently at fault is no defense. Schultz v. The Henry Ericsson Co., 264 Ill 156, 106 NE 236 (1914); Rimmke v. Gierich, 335 Ill App 125, 81 NE2d 221 (1948); Bryntesen v. Carroll Const. Co., 27 Ill2d 566, 190 NE2d 315 (1963); Gundich v. Emerson-Comstock Co., 21 Ill2d 117, 171 NE2d 60 (1960). In Koenig v. Patrick Const. Corp., 298 NY 313, 83 NE2d 133 (1948), the New York Court in construing a similar statute said:

If the employer could avoid this duty by pointing to the concurrent negligence of the injured.worker in using the equipment, the beneficial purpose of the statute might well be frustrated and nullified. . . . is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed.

Similarly, our highest court in Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785 (1961), after conducting a thorough analysis of the case law concerning interpretations of the Scaffold Act, stated:

In considering the construction of this Act, we must apply the legal axiom that the words of a statute should be construed to give effect to the legislative intention, which must be ascertained not only from the language of the entire act, but from the evil to be remedied and the object to be attained.

While the aforementioned cases do not involve indemnity actions against an employee, they nonetheless evidence the intent promulgated by our legislature.

The Scaffold Act was enacted in 1907 some four years before the birth of the Workmen’s Compensation Act. It came into force and effect at a time when employers were continually escaping liability by imposition of the common law defenses against their employees, engaged in hazardous work. It was the Act’s intent to rectify this hardship. The statute itself, 111 Rev Stats 1965, c 48, is prefixed by the statement:

An act providing for the protection and safety of persons in and about the construction, repairing, alteration, or removal of buildings, ....

The later enactment of the Workmen’s Compensation Act in no way evidences any alteration of this intention.

New City cannot avoid the legal consequences of such pronounced intent by claiming that Palier has conceded New City’s points and authorities by his alleged failure to answer responsively to them. Nor does Stubbs v. Austin, 285 Ill App 535, 2 NE2d 358 (1936) represent a contrary position as New City professes. There the defendant failed to respond to plaintiff’s alleged grounds for reversal based upon a hitherto disputed question of fact involving the right to possession under an issuance of a Writ of Assistance. No such dispute of facts exists in the instant case.

Recognizing full well that the Scaffold Act is framed negatively in such a way so as to protect an employee from the bar of affirmative defenses, the court is dealing here with an allegation of negligence asserted affirmatively against an employee as a basis of a recoverable cause of action. It would be pure hypocrisy, taking cognizance of the manifest legislative intent and case law on the subject, for this court to say that such an affirmative action is not barred by the Act’s blanket protection afforded employees. To allow this indemnity counterclaim would defeat the very purpose for which the statute was enacted, circumvent the valid and uniform construction of it adhered to by our courts, and create an unwarranted circuity of action.

Suffice to say, the General Assembly has had ample time to, in some way, alter or amend the Scaffold Act and its interpretation, yet the statute remains substantially unchanged since its enactment in 1907. New City’s circuitous action cannot be allowed to accomplish indirectly that which is statutorily prohibited directly.

For the above reasons, the order dismissing the counterclaim is affirmed.

Order affirmed.

BURKE and BRYANT, JJ., concur.


text:
    Dorothy Brooks, Plaintiff-Appellee, v. Joseph Goins, Defendant-Appellant, and St. Lawrence Insurance Company, Garnishee-Appellant.
    Gen. No. 49,774.
    First District, Fourth Division.
    March 10, 1967.

      Gillin and Owens, of Chicago (Charles J. Owens, of counsel), for appellant.
    Howard W. Minn and Melvin B. Lewis, of Chicago, for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the

opinion of the court.

Plaintiff sued for personal injuries arising out of an automobile accident. When defendant failed to appear, he was defaulted and judgment was entered on May 22, 1963 in the amount of $3,500.

Summons, notice of garnishment, and interrogatories were served upon defendant’s alleged insurer, St. Lawrence Insurance Company. Garnishee answered, “No funds,” which answer was contested by plaintiff and the matter was set for hearing. Later, garnishee answered “no” to an interrogatory asking whether or not on November 12, 1962 (the date of the accident) it was the insurer of defendant, Joseph Goins. Shortly thereafter, a Notice to Admit was filed by plaintiff, calling upon garnishee to admit that it had issued an automobile insurance policy to Joseph Goins, which policy was in full force and effect on the date of the injury to plaintiff. The Notice to Admit specified the policy number— SL 30 81-021. Garnishee answered the Notice to Admit by stating “that there was not an automobile liability insurance policy issued by the St. Lawrence Insurance Company known as Policy No. SL 30 81-021 insuring one Joseph Goins, and said Garnishee Defendant further avers that on or about November 12, 1962, it did not insure one Joseph Goins under any policy of insurance.”

A subpoena duces tecum was served on Goins to appear for deposition with all public liability insurance policies issued to him and insuring him on November 12, 1962. Goins appeared for his deposition on November 25, 1963, and on the same day, through counsel for garnishee, he filed a motion to vacate the original judgment of May 22, 1963, which motion was continued to a later date. This motion, filed some six months after entry of the judgment, did not in itself stay the judgment and the court was not requested to stay its enforcement. Ill Rev Stats (1963), c 110, § 72(4). Then, on December 10, 1963, plaintiff appeared for hearing on the garnishment contest and presented evidence, including a copy of Goins’ insurance policy showing on its face that garnishee had issued its Policy No. SL 30 81-021 to Goins and that such policy was in effect on the date of the accident. The record indicates that garnishee failed to appear or appeared too late at this proceeding. The court entered a judgment in favor of the plaintiff and against garnishee. Subsequently, the minute clerk (upon noticing the order of November 25, 1963, which had entered defendant’s motion to vacate the original judgment and continued hearing thereon) altered the record for December 10, 1963, by crossing out the order: “Tr. by Ct. J. for Plff. $3560 and costs,” and by making the following entry in its place: “Ord. Ct. No. Ord. See Ord. 11-25-63.” The clerk also entered the following on the “half sheet” of the court file: “December 10, 1963: Trial by court. Motion of plaintiff for judgment denied. See order of November 25, 1963.” The testimony indicates that the clerk’s entries were made pursuant to the authority of the magistrate.

On February 25, 1964, the motion of Goins to quash service of summons and to vacate the original judgment was overruled. Then, on March 23, 1964, at the instigation of plaintiff, a further hearing was held to inquire into the reasons for the clerk’s having crossed out the garnishment judgment of December 10, 1963. Defendant’s motion to quash and vacate the original judgment was again renewed and again denied. Testimony was also given, and arguments heard from both sides as to the propriety of the various orders that had been entered. The trial court thereupon reinstated the garnishment judgment nunc pro tunc as of December 10, 1963, but denominated it a “conditional judgment.” The record contains no explanation for such a designation. No summons to confirm this “conditional judgment” was ever issued. Finally, on April 17, 1964, a hearing was held to determine the ultimate disposition of the case. After hearing testimony by the minute clerk in explanation of the change in the record relating to the order of December 10, 1963, the court examined copies of letters sent to garnishee disproving a newly raised and inconsistent oral contention of garnishee that it had not been put upon proper notice of plaintiff’s suit. The trial judge thereupon refused to hear further testimony on that point, observed that he was “satisfied,” and entered an order confirming judgment for plaintiff against garnishee for $3,560. This appeal followed.

The major contention here is that the trial court failed to hold a trial on the merits of garnishee’s answer of “No funds.” Garnishee refers to the following paragraph of the Garnishment Act to support its contention:

A judgment creditor may contest the truth or sufficiency of the garnishee’s answer and the court shall immediately, unless for good cause the hearing is postponed, proceed to try the issues. The answer of the garnishee shall be considered denied without further pleading.

Ill Rev Stats (1963), c 62, § 43a.

Plaintiff and garnishee are not in accord in their views of what constitutes the merits to be decided in the instant garnishment contest. It is plaintiff’s theory that the merits of the garnishment proceeding are necessarily limited to the issue raised by garnishee’s answer of “No funds” as supported by its answers to interrogatories and Notice to Admit to the effect that no policy existed. With this we agree, and find that garnishee’s stated defense was amply rebutted by plaintiff. Garnishee, however, now admits that the position it then took under oath is untenable, but argues that it was never given an opportunity to prove its nonliability on the ground that defendant, Goins, violated the terms of the insurance policy (now admitted to exist) by not making prompt delivery to the insurance company of the original summons (now admitted to have been served on Goins). Advancement of this theory on appeal by garnishee places it in the rare situation of completely renouncing the position taken by it in the pleadings which it never even sought to amend. This is not permissible. Rudolph v. O. D. Jennings & Co., 38 Ill App2d 92, 99, 186 NE 2d 80; Bergmann v. Multi-State Inter-Insurance Exchange, 39 Ill App2d 468, 474, 189 NE2d 49; Kioutas v. City of Chicago, 59 Ill App2d 441, 446-447, 208 NE2d 587; Creeco v. Northern Illinois Gas Co., 73 Ill App2d 218, 224, 219 NE2d 257; Ill Rev Stats (1965), c 110, § 43(4).

On the state of the record, the outcome of the garnishment contest held on December 10, 1963, could not have resulted in a conditional judgment but only in a final judgment for plaintiff against garnishee. Therefore, reinstatement of the judgment of December 10, 1963, renewed a final judgment for plaintiff, and the trial court’s order of March 23, 1964, was erroneous in attempting, by use of the word “conditional,” to impart to it the character of a conditional judgment. This follows from a reading of the language of the Garnishment Act relating to conditional judgments:

When any person summoned as garnishee fails to appear and answer as required by this Act, the court may enter a conditional judgment against the garnishee for the amount due upon the judgment against the judgment debtor. A summons to confirm the conditional judgment may issue against the garnishee, returnable in the same manner as provided in section 4 hereof, commanding the garnishee to show cause why said judgment should not be made final. ... If the garnishee shall appear and answer, the same proceedings may be had as in other cases. Ill Rev Stats (1963), c 62, § 37(a).

Conditional judgments are thus clearly limited to situations where garnishee is in default for failure to appear and answer. A similar section of the prior act set forth in the disjunctive the appearance of the garnishee and his making of discovery as bases for entry of a conditional judgment. In Chicago Catholic Workers’ Credit Union v. Rosenberg, 346 Ill App 153, 104 NE2d 568, it was held that appearance without discovery was insufficient for a final judgment, and this interpretation was carried into the new act by the express use of the words, “appear and answer.”

Since garnishee in the instant case had both appeared and answered, the judgment order of December 10, 1963, could not properly be viewed as conditional. In this circumstance, the trial judge was without authority on March 23, 1964, to reinstate the earlier final judgment as a conditional judgment. While, as indicated, we also think that the judgment of December 10, 1963, should not have been removed from the face of the record merely because of the pendency of Goins’ motion to vacate the original judgment, the reinstatement of the December 10 judgment renders unnecessary any further discussion of this point.

The answer filed by the garnishee defendant here was the kind of pleading contemplated by the Garnishment Act. The issue raised in garnishee’s answer (the existence of insurance covering Goins) was before the court on December 10, 1963, and the failure of garnishee to attend on time at that hearing cannot now work to its advantage and permit alteration of the pleaded issue. We are satisfied that the evidence introduced by plaintiff at that hearing was sufficient to meet the issue as raised and to support the judgment against garnishee. Compare Zimek v. Illinois Nat. Cas. Co., 370 Ill 572, 19 NE2d 620, in which the insurer denied liability under the terms of the policy of insurance, whereas in the instant case garnishee does not plead violation of or noncompliance with any term in the policy, but, rather, denies altogether the existence of any policy of insurance. This issue having been fully litigated prior to entry of final judgment, garnishee now seeks to admit the policy and rely on a supposed defense under the terms thereof. This comes too late. It would seem unreasonable and unnecessary to impose upon the judgment creditor the burden of relitigating any phase of the question of the garnishee’s indebtedness to her when such indebtedness was specifically asserted in her Affidavit for Garnishment. Garnishee had been at liberty to raise any and all defenses against the claim, even in the alternative, at the time of filing its answer.

Finally, garnishee contends that the failure to issue and serve a scire facias or summons to confirm the “conditional judgment” renders the final judgment void. This point, too, is without merit. Not only is this true because of the fact that we hold the judgment not to have been conditional, but also because, as stated in Wabash R. Co. v. Hornbuckle, 131 Ill App 357, 360:

The object of scire facias against a garnishee, is to bring the garnishee into court, that he or it, as the case may be, may make discovery and be examined as to the personal estate, moneys, etc., of the judgment debtor in his or its possession. If, however, the garnishee without service of the scire facias answers, he is in court, and the object of the scire facias is satisfied.

The judgment against garnishee is affirmed.

Counsel for garnishee also filed on behalf of Goins a notice of appeal from the original judgment against him. No further steps were taken in that regard, however. On the basis of the foregoing, that judgment, too, is affirmed.

The history of this litigation is of no credit to either garnishee or its counsel. Matters essential to plaintiff’s case were repeatedly denied under oath, only to be admitted later at the hearings in somewhat cavalier fashion. The verified statements of garnishee and its counsel that no insurance policy covering Goins was in existence (even though the policy number had been furnished by plaintiff in her Notice to Admit), and defendant’s verified statement, submitted by garnishee’s counsel, that summons had not been served on him (despite his previous deposition testimony that he had received the summons and forwarded it to garnishee) still stand of record unamended and not withdrawn, although garnishee’s counsel in open court conceded, in effect, that they did not speak the truth.

On the basis of the foregoing, plaintiff has made a request to this court that she be reimbursed for expenses and attorney’s fees under the provisions of section 41 of the Civil Practice Act which reads as follows:

Untrue statements. Allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court at the trial. Ill Rev Stats (1963), c 110, §41.

We believe that there is enough in this record to warrant a hearing by the trial judge as to whether the untrue allegations and denials had been made “without reasonable cause and not in good faith” within the meaning of section 41, providing that plaintiff’s application for such a hearing does not come too late. We think that it does not, despite the fact that the request was not made to the trial court.

Section 41 establishes no specific limit within which application for relief thereunder must be made. This court, in Eugene Matanky & Associates, Inc. v. Onixt, 74 Ill App2d 53, 55, 219 NE2d 865, held that the motion to recover expenses authorized by section 41 must be filed within thirty days after judgment. Accepting that decision as a reasonable and appropriate solution to the problem of time left open by the statute, and considering the circumstances of this case, we

believe that plaintiff’s request was timely. Her opportunity for filing such a motion within thirty days in the trial court was cut short when defendant and garnishee filed their notice of appeal five days after entry of the order appealed from. With the filing of the notice of appeal, the jurisdiction of this court attached and the case has then proceeded here as a continuation of the trial court action. Ill Rev Stats (1963), c 110, § 76 (2); Butler v. Palm, 36 Ill App2d 351, 366, 184 NE2d 633. There has been no delay attributable to plaintiff; defendant and garnishee have not been prejudiced, and, upon remand, the trial court will still be in a position to exercise its jurisdiction which was interrupted by this appeal.

This cause is therefore remanded for the holding of a hearing pursuant to Section 41, and whatever amount, if any, for expenses and attorney’s fees which may be found additionally due to plaintiff, may be taxed as costs, without opening up or disturbing the judgments themselves.

Affirmed and remanded with directions.

DRUCKER and McCORMICK, JJ., concur.