text:
    Victor I. Godfrey and Norma B. Godfrey, a Partnership, d/b/a Rock River Lumber Company, Plaintiffs-Appellants, v. Gerald J. Brown and Elaine M. Brown, Defendants-Appellees.
    Gen. No. 66-52.
    Third District.
    April 4, 1967.
    Harold C. Lounsberry, of Rock Island, for appellants.

      Sam F. Skafidas, of East Moline, for appellees.
   ALLOY, J.

This is an appeal from a judgment of the Circuit Court of Rock Island County in the sum of $113.50 in favor of defendants Gerald J. Brown and Elaine M. Brown as against plaintiffs Victor I. Godfrey and Norma B. Godfrey, a partnership, d/b/a Rock River Lumber Company. The record discloses that plaintiff-company had entered into an agreement to build a certain portion of a two-story home for defendants for the sum of $11,065 following certain specifications. Defendants made two payouts to plaintiffs totaling $6,660 but refused to make the last payout amounting to $4,405. Action was then instituted by plaintiff to recover such amount together with the sum of $335.50 which was sought to be paid for a certain fill which was furnished to defendants. By way of defense, defendants counterclaimed for certain sums and also alleged that certain work furnished by plaintiff was defective and required correction. On trial of the cause, the trial court found that defendants were entitled to $4,854 to replace certain items which were required by the terms of the contract to be furnished by plaintiff. The trial court then entered judgment for defendants in the amount of $113.50 which is the difference between the amount found due the plaintiff-company and the amount found due the defendant-owners. The court also conditioned the judgment on a dismissal of a lawsuit in Henry County and on the supplying of any and all lien waivers which might be required to clear title to the premises of mechanic’s and materialmen’s liens.

On appeal in this court, plaintiff-company contends (1) that the court erred in the measure of damages; (2) that the judgment was against the weight of the evidence; and (3) that the judgment was conditional and, therefore, uncertain and void. It is apparent from the record that in some instances the court accepted the estimates of plaintiff’s witnesses which were higher than those of defendant but there was no specific objection to any of the estimates so introduced. The court was obviously justified in accepting the estimate which the court felt was the truest estimate. It is not necessary for us to review the evidence which was presented other than to observe that the trial court heard and saw the witnesses and we must give due weight to the trial court’s advantage in this respect in passing upon the evidence and judging the credibility of the witnesses. Under such circumstances we will not substitute our judgment for that of the trial court (Hood Const. Corp. v. Clark-Randolph Property, 347 Ill App 432, 107 NE2d 37; Rassmussen v. Airway Concrete Placement Corp., 61 Ill App2d 85, 210 NE2d 65).

The portion of the judgment which sought to provide for dismissal of another lawsuit in a different county and supplying of lien waivers can be treated as surplusage. The remainder of the judgment is specific in terms and is not lacking in definiteness or certainty. The portion of the judgment described as Paragraph 6 thereof is hereby deleted and the remainder of the judgment will stand. The surplusage which was included originally will not operate to vitiate an otherwise good final judgment (Kuolt v. Canright, 202 Ill App 502, 505).

Defendant has also contended on appeal in this court that since repair of the defects would require substantial tearing down and rebuilding of the structure, the measure of damages should be the difference between the work as it had been performed in accordance with the contract and that which was actually done, or the difference between the value of the defective structure and that of the structure properly completed. In the trial of this cause, no objection was made by plaintiffs as to defendants’ evidence of the amount of damages sustained by defendants. Plaintiffs now on appeal are not in a position to object to the evidence thus introduced as to damages nor may they change their theory on appeal and raise an issue which was never raised at any time in the trial court. Both parties had accepted the same theory as to the measure of damages applicable in this case during the trial and we will not on appeal substitute an entirely different theory as to damages (Cleveland, C., C. & St. L. R. Co. v. Stephens, 173 Ill 430, 434, 51 NE 69; McArthur Bros. Co. v. Whitney, 202 Ill 527, 531, 67 NE 163).

This cause will, therefore, be affirmed with judgment modified as herein specified.

Affirmed as modified.

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


source: Caselaw Access Project

author: ALLOY, J.

license: Public Domain

text:
    Numa Ray and Bernadette Ray, Plaintiff-Appellee, v. Frank Johnson, Jr., Defendant-Appellee, and Kenilworth Insurance Company, Garnishee, Defendant-Appellant.
    Gen. No. 66-83.
    Third District.
    April 4, 1967.

      Edward G. Vogt, of Kankakee, for appellant.
    Charles Henry, of Kankakee, for appellee.
   ALLOY, J.

This cause is before us on appeal from a judgment rendered in favor of plaintiffs Numa Ray and Bernadette Ray as against garnishee-defendant Kenilworth Insurance Company, as an insurer of Frank Johnson, Jr., in the sum of $615.30. The cause was tried in the Circuit Court of Kankakee County by the court sitting without a jury.

The record in this cause discloses that on January 18, 1966, the plaintiffs in this action obtained a judgment as against Frank Johnson, Jr. upon a verdict of a jury for property damage in the amount of $461.09 plus costs. The action resulted from an intersection collision between automobiles driven by one of the plaintiffs and Frank Johnson. At the time of the collision, Frank Johnson had in force a policy of insurance with Kenilworth Insurance Company providing for liability coverage for property damage caused by Frank Johnson. The policy had the usual provision for assistance and cooperation of the insured. At a previous trial of the action, Frank Johnson had arrived late after a jury was picked. Such trial had resulted in low damages and on plaintiff’s motion for a new trial, the new trial had been granted. The record also shows that the insurer, as a result of that experience could have ascertained that the insured, Frank Johnson, was a poorly educated person who had only finished the seventh grade and had little understanding of court proceedings.

A letter had been sent on January 10, 1966, to Frank Johnson, Jr. advising “Please be advised that your matter has been set for trial again on January 18, 1966. Please contact me.” The letter had been received by said Frank Johnson but he stated on trial of this cause that he had “clean forgot it.” There was also evidence in the record from which the court could conclude that insured had a telephone with an unlisted number but that the number could have been secured by insurer’s attorney upon inquiry. There is no direct evidence that the insured ever refused to cooperate but simply that he forgot to appear and that is the only reason he did not appear at the time the case was set for trial. Counsel acting for Frank Johnson and the insurance company made no request for a continuance of the case but proceeded with the trial of the cause in the absence of Frank Johnson, Jr. No notice of any intention on part of the insurance company to disclaim liability was ever given to Frank Johnson, Jr. prior to the trial of the action or in conjunction with the notice with reference to the date of trial.

On appeal in this cause, it is contended by defendant Kenilworth Insurance Company, which was held responsible as garnishee under the terms of the insurance policy, that the failure of Frank Johnson, Jr. to attend the trial constituted a breach of his duty to cooperate with his insurer so as to absolve the insurer of liability on the policy of insurance involved.

Where an insurer denies liability on the ground that the judgment debtor had failed to cooperate in the defense of the basic action, the insurer had the burden of establishing, in the action thereafter filed by the judgment creditor, that it acted in good faith through its counsel and that the failure of Frank Johnson, Jr. to appear in court was due to a refusal to cooperate. On the basis of the record, it was for the trial court to determine, in the nonjury trial which was had in this cause, whether or not there was a refusal to cooperate and whether the circumstances justified absolving the insurer of liability in the action (Panczko for Use of Enright v. Eagle Indemnity Co. of New York, 346 Ill App 144, 104 NE2d 645).

On the basis of the record before us, we feel that the court was justified in concluding that the insured did not refuse to cooperate. The only notice which was given to Frank Johnson, Jr. was the letter heretofore referred to. It did not specifically advise defendant of the time and place of trial. The record does not show any further effort to get in touch with Frank Johnson, Jr. when it was discovered that he was not present in the courtroom. No effort was made to telephone him nor did the attorney representing the insurance company and Frank Johnson, Jr., ask for a continuance. He simply proceeded with the trial. There was no request for leave to withdraw from the case and no indication that defendant-insurance company deemed the presence of Frank Johnson, Jr. indispensable to procedure in the cause.

We are aware of the case of Penn v. Progressive General Ins. Co., 74 Ill App2d 32, 219 NE2d 857, cited by appellant in this Court. In such case, the court concluded that the insurance company had failed to prove its affirmative defense of noncooperation. The burden of proof in such instance is on the garnishee-defendant to establish by a preponderance of the evidence, the affirmative defenses which it raises by its pleadings. In that case, the insured had moved a,nd the insurance company was unable to find her. The court there found that the insurance company did not even contact the finance company referred to on the face of the policy in an effort to find out where the insured lived. In that case the court affirmed the decision of the trial court that the insurance company seeking to be discharged did not exercise a reasonable degree of diligence in ascertaining the whereabouts of the insured, and that such company failed to prove its affirmative defense of noncooperation. Similarly, in the case before us we likewise conclude that Kenilworth Insurance Company did not exercise a reasonable degree of diligence in seeking the attendance of Frank Johnson, Jr. at the trial or in seeking a continuance for such purpose under the facts in the record. We, therefore, conclude that the trial court properly found that Kenilworth Insurance Company failed to prove its affirmative defense of noncooperation.

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

Affirmed.

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


author: SMITH, J.

text:
    Russell Handy, Plaintiff-Appellee, v. Sue T. Shearer, et al., Individually and as Executor of the Estate of Lowney T. Handy, Deceased, Vivian T. McClellan, Individually and as Conservator of the Estate of Faye T. Swain, an Incompetent, Faye T. Swain, an Incompetent, Wayne A. Turner, Earl J. Turner, The Handy Colony, an Illinois Corporation Not For Profit, James Jones, The City of Marshall, Illinois, Earl Kile and Doris Kile, Defendants. Sue T. Shearer, et al., Individually and as Executor of the Estate of Lowney T. Handy, Deceased, Vivian T. McClellan, Individually and as Conservator of the Estate of Faye T. Swain, an Incompetent, and Wayne A. Turner, Defendants-Appellants.
    Gen. No. 10,834.
    Fourth District.
    April 10, 1967.

      Massey, Anderson, Gibson and Pearman, of Paris (Robert L. Gibson, of counsel), and Sidney J. Wolf, of Chicago, for appellants.
    John M. Hollenbeck, of Marshall, for appellee.
   SMITH, J.

This suit involves the construction of the second paragraph of the will of Sol Handy, deceased. It reads as follows:

“SECOND — I give and bequeath to my wife, Loudell Handy, all my property, real, personal and mixed, for and during her natural life or widowhood, and at her remarriage or death, to my son, Harry Edwin Handy. In the event of the death of my son, Harry Edwin Handy, before the remarriage or death of my wife, Loudell Handy, then it is my will that, at the remarriage or death of my wife, Loudell Handy, all my property, real, personal and mixed, shall descend to my legal heirs.”

The trial court held that the term “legal heirs” referred to heirs determined as of the death of the life tenant and found for the plaintiff, a nephew of the decedent. Defendants contend that “legal heirs” refers to heirs determined as of the death of the testator and claim through such heirs.

Sol Handy executed his will on May 23, 1923, and died on May 3, 1934, leaving his widow, Loudell, and his son, Harry Edwin, surviving. Harry died on March 29, 1963. Loudell died July 20, 1964, without remarrying. The sole issue is whether the term “legal heirs” refers to heirs living at the death of the testator or heirs living at the termination of the life estate. Ordinarily the words “heirs,” “heirs-at-law” or “legal heirs” are used to designate those persons who have that status at the death of the testator unless the intention of the testator to refer to those who would have been his heirs had he died at a subsequent time is clearly manifest by the language used in the will. Robertson v. Eastern Long Island Hospital, 28 Ill2d 483, 192 NE2d 895. It is no answer to our problem to say that the testator might have resolved the matter by the use of appropriate specific language. We do not determine what the testator meant to say but what he did mean by what he did say. Hull v. Adams, 399 Ill 347, 77 NE2d 706. We cannot search for an intention that the testator may have had in mind but failed to express with appropriate recognized language.

The controversy centers on the second sentence of the quoted portion of the will which provides for a gift over to “my legal heirs” upon the death of Harry prior to the death or remarriage of the widow. In both the first and second sentences the testator used the words “at the death or remarriage”. In the second sentence he refers twice to the death or remarriage of his widow. The first time he couples it with the words “in event of” and the second time with the words “then ... at the remarriage or death of.” While the words “in event of” have been construed to mean “at their death” where the context requires it, Griffin v. Griffin, 29 Ill2d 354, 194 NE2d 641, the use of both terms in the same sentence suggests that the testator intentionally used each term in a context different from the other. It thus becomes important to determine whether the word “then” is a word of reference to the preceding event, i. e., the death of Harry or an adverb of time referring to the death or remarriage of the widow. It can be used in either manner. Tolley v. Wilson, 371 Ill 124, 20 NE2d 68; Phelps v. Seeley, 3 Ill2d 210, 119 NE2d 923. In our judgment, it is here used as an adverb of reference. It seems to us the testator is saying that upon the happening of a specified event (the death of Harry) before the specified time (the death or remarriage of the widow) there is a gift over to my legal heirs determined as of the specified time. Twice using the language “at the death or remarriage” clearly suggests that the subsequent gifts either to Harry or in the alternative “to my legal heirs” means that the devolution of the property to the alternative remaindermen is determined and fixed at the time of the remarriage or death of the widow.

In the first sentence the testator clearly confined the interest of the widow to her widowhood and unequivocally closed the door to any interest of a second husband in his property by inheritance or otherwise. In the same sentence he took care of Harry if he survived the widow or her widowhood. Harry had no children either at the death of the testator or at the death of the life tenant. Had the will ended at this point and had Harry died before the termination of widowhood, the remainder would have descended to testator’s heirs as intestate property. There would be no occasion for the second sentence had this been his plan. The death or remarriage of the widow is mentioned three times in two sentences. Both are determinative events, one bound to happen and one could happen. Its threefold use suggests that it was an event and a point of time that weighed heavily in the testator’s plan and in his thinking. It was only then that it could be determined whether Harry was to receive the property or not and whether or not a substitutionary gift was necessary. To construe the term “my legal heirs” as referring to those occupying that status on the date of the testator’s death would exclude after-born grandchildren. This is not the natural thing to do. There is nothing that suggests this was his intention. By using the date of the widow’s remarriage or death as a date for the determination of “my legal heirs,” testator’s plan is complete. He has provided for the natural devolution of his property to his own bloodlines and if extinct then in the alternative to his collateral heirs.

The testator is presented to us in this record as a layman of considerable expertise in the use of the English language and in his ability to express himself with precision. While this litigation may tend to disparage such a characterization, we think it is clear that he meant what he said and said what he meant. The decree of the trial court is affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


author: JUSTICE TRAPP.

text:
    Patricia Jordine, Plaintiff-Appellee, v. Metropolitan Life Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. M-10,796.
    Fourth District.
    April 10, 1967.
    William J. Bach and William S. Bach, of Bloomington, for appellant; Thomson, Thomson & Mirza, of Bloomington, for appellee.
   Opinion by

JUSTICE TRAPP.

Not to be published in full.


text:
    National Premium Budget Plan Corporation, a Corporation, Plaintiff-Appellant, v. LaSalle Casualty Company, a Corporation, Defendant-Appellee.
    Gen. No. 10,807.
    Fourth District.
    April 10, 1967.
    Fleming, Messman & Lapan, of Bloomington (Roger Lapan, of counsel), for appellant.
    Costigan & Wollrab, of Bloomington (William F. Costigan, of counsel), for appellee.
   SMITH, J.

Plaintiff, a Michigan corporation, is engaged in financing the payment of premiums on insurance policies where the premium payments are large. It financed the premium on the installment plan on a policy originally issued by and subsequently cancelled by the defendant insurance company. This suit is to recover from the insurance company the balance of the unearned premiums. The trial court found for the defendant and entered a judgment in bar. Plaintiff appeals.

The precipitating cause of this litigation is Transportation Insurance Agency whose manager departed with the funds involved. The issue is whether Transportation was the agent of the plaintiff National Premium or of the defendant LaSalle Casualty Company. Plaintiff contends that Transportation was the agent of the defendant for the issuance and delivery of the insurance policy and that receipt of the premiums by Transportation was receipt by the defendant and thus the defendant is liable for the loss resulting .from the defalcations of its agent. Defendant contends that the financing of the premiums was a separate business transaction and that as to such financing Transportation was acting as the agent of the plaintiff and thus plaintiff is saddled with the defalcations of its own agent.

The evidence shows that H. J. Enterprises, Inc., Atlanta, Georgia, insured its truck against loss by collision, fire and theft through Transportation and LaSalle issued its policy TLA-1005 to provide such coverage. To this point, the record shows that Transportation was acting as the agent for LaSalle. Had the insured paid the premiums in cash to Transportation on delivery of the policy and the defalcation then occurred, the loss would clearly rest with LaSalle. However, intervening events, in our judgment, effectively sidetracked this result.

The evidence further shows that Transportation had been recommended to National Premium by another customer of National Premium as a possible user of its major premium budget financing plan. National Premium furnished Transportation a supply of its contract forms and they were used by both Transportation and National Premium in this transaction. H. J. Enterprises, Inc. signed the premium installment contract and agreed to make premium payments totalling $12,355.50 in accordance with its terms to the agent named on the reverse side of the contract at the office of National Premium in Michigan. The agent so named was Transportation. Transportation then assigned all its interest in the contract to National Premium and received and endorsed the check representing the proceeds of the loan. LaSalle was not a signatory party to these contract documents.

LaSalle first learned of the premium financing when it received a “notice of premium financed” from National Premium identifying policy No. TLA-1005 listing the insured as H. J. Enterprises, Inc., LaSalle as the insurance carrier, and Bert A. Miller Associates of Chicago, as the issuing agency. This notice stated that “the amount financed will be paid to the issuing agent unless you immediately direct otherwise.” LaSalle never did direct otherwise. LaSalle did sign a card and returned it to National Premium acknowledging receipt of the “notice of premium financed” and “our acceptance of the terms as outlined therein.” In the contract documents between H. J., Transporation, and National Premium, the latter was directed to “mail confirmation forms” to Bert Miller Associates. A letter directed to Bert Miller Associates from National Premium refers to the addressee as “issuing agent” and to Transportation as “submitting agent” and requests authority to mail the proceeds of the loan to Transportation. The president of National Premium testified they had a telegram from Bert Miller Associates approving such payment and remitted in accordance with that direction.

What was Miller’s relationship with LaSalle? As abstracted it is stated thusly: “Bert Miller does claim adjusting work. He does no underwriting or saleswork for LaSalle Casualty. For our company they adjusted fire, theft and collision losses on automobiles and trucks. We had a payment arrangement with Bert Miller. . . . Bert Miller had no authority from LaSalle to receive or receipt for payments.” The contract in evidence between LaSalle and Miller amply supports this statement. This, in our judgment, precludes any thought that Miller was the agent of LaSalle with any authority to bind LaSalle on the payment of the loan proceeds to Transportation. It was Transportation in its contract documents with National Premium that brought Miller into the picture. LaSalle had nothing to do with it.

Both parties rely on Budget Premium Co. v. Inter-Insurance Exchange, 55 Ill App2d 277, 204 NE2d 310. In that case, the financing company was advised by the insurance carrier that it would not be affected by the financing program unless payments were made directly to it. The financing company did not comply with this affirmative direction and recovery by the finance company from the insurance company for unearned premiums was denied. This case is not precise authority for the situation which confronts us. In it the finance company failed to comply with the affirmative directions of the insurance company as to the payment of the loan proceeds. In the case at bar, National Premium failed to comply with its own notice and its own commitment to LaSalle as to the payment of the loan proceeds. Here LaSalle accepted the terms of the “notice of premium financed.” That notice provided for the payment of the loan proceeds to the “issuing agent.” It designated Bert A. Miller Associates as such “issuing agent,” and as the recipient of such proceeds “unless you immediately direct otherwise.” No directions otherwise were given by LaSalle. Had payment been made to Miller and defalcation by it occurred, LaSalle would be hard put to escape the consequences of its acceptance. By its acceptance of the notice of premium financed it would have been estopped to deny the authority of Miller to receive the proceeds. Had the notice specified Transportation, a like result would obtain. Instead National Premium violated its own notice in transmitting the proceeds to Transportation on the purported authority of Miller who was without authority to give it. By its letter to Miller, National Premium recognizes that it was without authority to pay the loan proceeds to Transportation without additional authority. It sought that authority from Miller without ascertaining from LaSalle that Miller had the authority to give it. The telegram from Miller is neither identified in evidence nor accounted for. As abstracted, the president of National Premium testified :

“. . . No one advised us as to the relationship between LaSalle Casualty and Bert Miller. We did not make other inquiry as to the scope of the agency of Bert Miller as it related to LaSalle.
“Our only contact with Bert Miller was to write and ask him for directions to pay the money to Transportation in Georgia. We had no specific communication from anyone indicating Bert Miller’s authority to direct that payment.”

It serves no useful purpose to speculate as to why National Premium wanted Transportation to handle the proceeds of this loan. It is clear from the record that they did. It serves no useful purpose to speculate as to why LaSalle was willing that Miller should receive the proceeds of the loan. The fact is that they did. It is a generally accepted principle that where injury has resulted from the wrongful act of a third person, the damages flowing from such wrongful act must be borne by the party whose conduct made possible the wrongdoer’s act, breach of trust, fraud or negligence. And when one of two innocent persons, i. e., persons each guiltless of an intentional moral wrong, must suffer a loss, it must be borne by that one of them who by his conduct has rendered the injury possible or who could have prevented it. 28 Am Jur2d, Estoppel and Waiver, f 62. It is, of course, true that LaSalle could have avoided the defalcation by Transportation by directing the payment of the loan proceeds to it. It is equally true that had National Premium followed its own stipulations to LaSalle and had not breached its notice of premium finance, the defalcation by Transportation would have been avoided. It seems clear to us that Transportation was acting as the agent for La Salle in the delivery of this insurance policy. A separate and distinct transaction then arose which involved the financing of the premiums. In that transaction, Transportation was acting as the agent of National Premium. It was Transportation who directed the payment to Miller. It was Transportation who represented the insured and National Premium in that transaction. In such a situation, it is our judgment that the loss must remain with the agent who was selected by National Premium. Surely LaSalle had the right to rely upon the agreement and commitment of National Premium to pay the loan proceeds to Miller. Surely National Premium had no right to rely upon a directive of Miller as to the payment of these loan proceeds without proper inquiry to ascertain whether or not Miller had the authority to order its payment to Transportation. Having breached its own agreement with LaSalle in the payment of loan proceeds, having relied upon an authorized directive of Miller, and having elected to repose its trust in its own agent, Transportation, it seems clear that the responsibility for the loss here sustained must remain where it now lies, i. e., in the lap of National Premium.

Accordingly, the judgment of the trial court should be and it is hereby affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    Leo G. Lauzen, Plaintiff-Appellant, v. Violet Lauzen, Defendant-Appellee.
    Gen. No. 66-112.
    Second District.
    April 10, 1967.

      Thomas A. Mass, Jr., of Chicago, for appellant.
    Reid, Ochsenschlager, Murphy and Hupp, and Stephen J. Mrkvicka, all of Aurora, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Kane County wherein the court awarded defendant attorneys’ fees and denied plaintiff attorneys’ fees. The appeal before us is solely on the question of attorneys’ fees.

On January 9, 1963, the Circuit Court of Kane County entered a decree of divorce in favor of Leo G. Lauzen, plaintiff herein, and against Violet Lauzen, the defendant, providing, among other things, that custody of the four minor children, ranging in age from 12 to 4 years, be awarded to defendant with liberal visitation rights granted to plaintiff. A property settlement agreement was incorporated into the decree which provided for the payment of $1,000 per month for the support of the minor children. It appears that subsequent to the divorce the four children refused to visit with their father. Plaintiff thereupon petitioned the court for a modification of the decree seeking a change of custody, or in the alternate, specific visitation rights. Between February 19, 1965, and July 15, 1966, plaintiff filed numerous petitions seeking a change of custody, attorneys’ fees, a rule to show cause, visitation rights and modification of the support payments. Some 20 orders were entered during this period. Subsequently, the support money was reduced by 25% for failure to comply with the order of visitation. However, the rule to show cause was dismissed after hearing and a stipulation that the defendant had done nothing to discourage plaintiff’s rights was entered.

The court entered an order allowing the defendant $3,000 for attorneys’ fees and $343.05 costs, from which the plaintiff appeals.

Plaintiff’s theory of the case is that the attorneys’ fees should not have been allowed to the defendant, but that they should have been allowed to him. In support of this theory the plaintiff asserts there was a failure to prove the essential elements which go to determine the amount of fees; that the record demonstrates that the defendant’s ability to pay is greater than the plaintiff’s, and lastly, that the defendant’s resistance to the various petitions of the plaintiff was not made in good faith.

The awarding of attorneys’ fees lies within the sound discretion of the court. Roback v. Roback, 59 Ill App2d 222, 231, 207 NE2d 130; Jones v. Jones, 48 Ill App2d 232, 239, 198 NE2d 195. However, the amount of fees depends on the consideration of a number of factors including the nature of the controversy, the questions at issue, the significance or importance of the subject matter, the degree of responsibility involved, the standing and skill of the person employed, and the time and labor involved. Roback v. Roback, ibid. The courts may use the knowledge they have acquired in the discharge of professional duties as to the value of legal services rendered. Richheimer v. Richheimer, 59 Ill App2d 354, 365, 207 NE2d 130.

The defendant’s attorney testified that he had practiced law for approximately 30 years before Federal and State Courts; that he had approximately 240 hours of time expended on this proceeding; that he had an A rating in Martindale-Hubbell; that the fair value of the services was at the rate of $50 per hour. Plaintiff’s attorney concedes that the office records indicate 167 hours of time and that the reasonable customary charges made in cases of this nature are at the rate of $20 to $25 per hour for office work and $30 to $35 per hour for court time. It is interesting to note that the petition by the plaintiff for fees indicates that approximately 200 hours were expended on the proceeding and that the customary, reasonable charge for this is $25 an hour for office work and $35 an hour for court appearances.

Everett Jordan, an attorney with 33 years of experience, testified as an expert and in response to a hypothetical question indicated the value of the services to be $25 an hour for office work and $50 an hour for court appearances.

In the light of these proofs it would appear there was more than adequate testimony to support the allowance of fees by the trial court together with the costs advanced.

Plaintiff next contends that the defendant’s ability to pay attorneys’ fees is greater than his ability to do so, and therefore, plaintiff should not be charged with the attorneys’ fees of defendant. A wife who is more financially able than her husband to pay her attorneys’ fees and expenses should not be allowed to recover from him. The rule is that the controlling factor in determining the granting of fees is the inability of the husband to pay and the ability of the wife to do so. Jones v. Jones, supra, page 289. The evidence herein discloses the plaintiff’s income as $31,000 a year and he pays, as a result of the modified order, $9,000 a year to his former wife for her support and the support of the four children. The support money is the only income defendant receives. From this amount she pays income tax, real estate taxes, house payments, utilities, food and clothing and family living expenses. For the year 1965 she received $11,568 from the plaintiff and her expenditures were in the sum of $12,753.63. From these figures it is apparent that the defendant is unable to pay the attorneys’ fees. The plaintiff’s earnings for the year 1965 amount to $30,600 from which he paid defendant $11,568; $4,800 on a stock loss; mortgage payments of $4,500; life insurance of $500; real estate and personal taxes of $700 and social security of $200. We question the propriety of charging in this computation the payment on the stock loss of $4,800, which in effect leaves the plaintiff with the sum of approximately $13,-100 to provide his family living expenses, he having remarried. This amount should provide for his family’s living expenses. From this we are of the opinion that the plaintiff has the ability to pay and the defendant does not.

Plaintiff finally contends that the defendant was not in the exercise of good faith in seeking to defend the right of visitation which the court had ordered for him. In Baumgartner v. Baumgartner, 16 Ill App2d 286, 294a, 148 NE2d 327, a separate maintenance action where the parties were living together was held not to be filed in good faith and attorneys’ fees were disallowed. Plaintiff urges that in good conscience and equity a father should not be required to pay his former wife’s fees in seeking the enforcement of his right to visitation, nor is it necessary for the wife to retain counsel for her defense. We are sympathetic with this principle. However, the original petition filed was not limited to merely visitation but sought, in addition, a change in custody because of the children’s association with people apparently not approved of by the plaintiff. It is difficult to comprehend what mother, under these circumstances, would not seek legal aid.

We conclude in light of the many petitions filed and the relief sought that the defendant was exercising good faith in the defense of her position, particularly when the plaintiff concedes, and the court found, that she did not interfere or influence the children in their refusal to visit with the plaintiff. The order of the trial court is therefore affirmed.

Judgment affirmed.

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


author: MR. JUSTICE BURMAN

text:
    Richard J. Daley, Mayor and Local Liquor Control Commissioner of the City of Chicago, Plaintiff-Appellant, v. Francisco Perez, Licensee, License Appeal Commission of the City of Chicago, A. L. Cronin, Chairman, Defendants-Appellees.
    Gen. No. 50,973.
    First District, First Division.
    April 10, 1967.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin, Assistant Corporation Counsel, and Richard J. Hoerger, Special Assistant Corporation Counsel, of counsel), for appellant.
    John R. Hieber, of Chicago, for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

In this action the plaintiff, Mayor of the City of Chicago, as ex officio Local Liquor Control Commissioner, held a hearing under the Liquor Control Act (111 Rev Stats 1965, c 43, § 149) and later revoked the retail liquor license issued to the defendant, Francisco Perez. Upon appeal the License Appeal Commission reversed the revoking order and the Mayor filed a statutory action under the Administrative Review Act (111 Rev Stats 1965, c 43, §§ 153, 154a) to review the order of the License Appeal Commission. The trial court affirmed the order of the License Appeal Commission and plaintiff appeals from this judgment.

The plaintiff contends that a liquor license is a purely personal privilege which may be revoked, in the public interest, by the Mayor in his reasonable discretion for any of the reasons specified in section 5, Article VII of the Liquor Control Act; that there is substantial evidence to support the revocation of the liquor license and that the trial court erred in affirming the order of the License Appeal Commission.

The defendant’s theory is that the Mayor’s revoking order is not supported by substantial evidence and was an abuse of discretion, arbitrary and without good cause, and that the License Appeal Commission and the trial court, after a review of the entire record, correctly found that the Mayor’s order was against the manifest weight of the evidence.

The evidence presented at the hearing before the Deputy Liquor Control Commissioner indicated that police officers, Edward Millar and Edward Seng, arrived at Perez’s tavern at 12:10 a. m. on September 12, 1964. Officer Seng testified he saw Carlos Meza on the sidewalk in front of the tavern bleeding from a puncture wound through the thigh muscle of his right leg which was later treated at a hospital. He also saw Rafael Meza outside the tavern and he had bruises and lacerations on his face and was bleeding from the mouth. The defendant told him there was a fight outside the tavern and that he did not know what had happened. Seng said he searched the premises and found a revolver in a drawer behind the bar and he thought Perez told him it was his. On cross-examination he testified that when Officer Millar asked Perez whether he had a gun Perez showed him where it was.

Carlos Meza testified that he arrived at the tavern about 6:30 p. m. with Rafael Meza, his brother, who is presently in Mexico. He said he had been going to that tavern for eight months and knew Perez. When they were leaving at about 12:00 a. m., and Rafael was about five feet from the door, Perez started an argument with his brother calling him a “Mexican nigger” and cursing him. He said when his brother pulled up his pants leg and told Perez, “I am not a Negro, I show You.”, Perez punched him in the mouth. He testified that when they went outside fighting he followed them and tried to separate them. He said Perez went back into the tavern and then six or seven men armed with knives came out and attacked his brother. He said he was five feet from the door with his back turned when he heard a shot and turned around and saw Perez in the doorway with a gun in his hand, who then shot him in the right leg. On cross-examination he testified that he and his brother had been drinking for six hours, but denied that Perez told them to get out, denied that he started a fight outside because he wanted to get back inside and denied that Perez was also shot.

Francisco Perez was called as a Commission witness and testified that the Meza brothers were in his tavern, but denied he hit Rafael or shot Carlos. He said he never had any trouble in the tavern and denied that he had a fight on September 2, 1963, or that he was warned by the Mayor’s office for a sale to a minor on January 24, 1964. When questioned by his attorney he testified that the Meza brothers were fighting with each other outside his tavern. He said when he opened the door and told them to break it up, he heard a shot and saw his leg was bleeding. He testified further that he did not shoot Carlos and did not have a gun in his hand. On reexamination he admitted that he did not tell the police officers he had been shot.

On April 15, 1965, the License Appeal Commission reviewed the transcript of evidence, heard oral arguments of counsel, and found that the Mayor’s revocation order was not supported by substantial evidence in the light of the entire record and ordered the license reinstated. The trial judge affirmed the License Appeal Commission giving no reason other than “having reviewed the record and heard argument of counsel.”

Under the Liquor Control Act the License Appeal Commission cannot receive or consider new evidence and is limited to a review of the record of the Mayor and a determination of three questions, namely, “(a) whether the local liquor control commissioner has proceeded in the manner provided by law; (b) whether the order is supported by the finding; [and] (c) whether the findings are supported by substantial evidence in the light of the whole record.” Ill Rev Stats 1965, c 43, § 153. On review, the trial court is similarly limited by the Administrative Review Act which also provides that the finding and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct. Ill Rev Stats 1965, c 110 § 274.

In Parker v. Department of Registration, 5 Ill2d 288, 125 NE2d 494, the court considered the scope of judicial review under the Administrative Review Act and construed it to mean that the courts are not authorized to reweigh the evidence or to make an independent determination of the facts, but are limited to a consideration of the record to determine if the findings of the commissioner, who alone saw and heard the witnesses, is against the manifest weight of the evidence.

The defendant argues that the License Appeal Commission and the trial court correctly found the Mayor’s order to be against the manifest weight of the evidence because the testimony of Carlos Meza is entirely improbable for two reasons:

(a) That there was apparently no conversation between Perez and the plaintiffs during these five and one half hours they were in the tavern and that for no explainable reason Perez is alleged to have started an argument with Rafael Meza.
(b) It is highly improbable that a man standing with his back to an alleged assailant could be shot in the right leg, the bullet passing through the thigh muscle on an angle of 45° from the upper thigh to a point above the kneecap.

The uncontradicted evidence shows that the Meza brothers had been drinking liquor for several hours in Perez’s tavern while he was present and that an argument and a fight took place which resulted in Carlos Meza being shot. The only witnesses who testified to the latter occurrence were Carlos Meza and Francisco Perez. The direct testimony of Meza shows that the fight and argument started in the tavern and continued outside and that Perez shot him. Perez testified that he saw a fight between the Meza brothers outside the tavern and that he heard a shot and his leg began to bleed. He did not report the wound to thé police nor go to a hospital.

The Deputy Commissioner, having seen and heard the witnesses, was in the best position to evaluate whether the testimony of Carlos Meza was probable or believable, and it is obvious that he chose to believe Carlos Meza. It is our judgment that his order was not contrary to the manifest weight of the evidence and that he did not act arbitrarily or abuse his discretion in revoking Perez’s liquor license. Therefore the judgment of the Circuit Court is reversed and the cause remanded with directions to reinstate the revocation order.

Judgment reversed and cause remanded with directions.

MURPHY, P. J. and ADESKO, J., concur.


text:
    Ronald Sullivan and Chief Thomas J. Sullivan, Plaintiffs-Appellants, v. Nissen Trampoline Company, et al., Defendants-Appellees.
    Gen. No. 50,452.
    First District, First Division.
    April 10, 1967.
    Louis M. March, of Chicago, for appellants.
    Price, Noetzel, Schlager & Burgeson, of Chicago (John F. Laughlin, of counsel), for appellee, Nissen Trampoline Company.

      Norman J. Barry and Donald E. Egan, of Chicago (Rothschild, Hart, Stevens & Barry, of counsel), for appellee, Lincoln Devon Bounceland, Inc.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is an action for personal injuries and damages sustained by plaintiff from the alleged negligence of the defendants in providing rental of certain trampolines to the public including plaintiff, Ronald Sullivan. The motion of defendants Nissen Trampoline Company and Lincoln Devon Bounceland, Inc. to quash service of summons for plaintiff’s failure to proceed diligently in accordance with Illinois Supreme Court Rule 4(2), and to dismiss the complaint against them, was allowed, and plaintiffs appeal.

The alleged cause of action arose on July 26, 1960, and suit was filed on July 26, 1962. That same day summons was placed for service against Lincoln Devon Bounce-land, Inc. and returned not found. No summons was placed for service against Nissen Trampoline Company at that time. No further action was taken until July 8, 1964, when alias summons were issued and served shortly thereafter on Nissen Trampoline Company, a foreign corporation, and on Lincoln Devon Bounceland, Inc.

On August 19, 1964, Lincoln Devon Bounceland, Inc. filed a general appearance and a motion to dismiss, pursuant to Supreme Court Rule 4(2), and in support thereof attached an affidavit of Donald E. Egan who was associated with the law firm that filed the appearance. Nissen Trampoline Company filed a special and limited appearance on September 24, 1964, and on the same day filed a motion to quash pursuant to the Supreme Court Rule. On December 14, 1964, the motions of the defendants to dismiss were granted with a finding that there is no just cause to delay the enforcement of the order.

Section 4(2) of the Rules of the Supreme Court of Illinois which is headed, “Alias Writs — Dismissal for Lack of Diligence” provides that:

(2) If the plaintiff fails to show reasonable diligence to obtain service, the action as a whole or as to any unserved defendant may be dismissed on the application of any defendant or on the court’s own motion. (Ill Rev Stats 1963, c 110, § 101.4(2).)

Plaintiffs contend that (1) where the defendants had knowledge of the accident and their insurance company held out hope to the plaintiffs by promises to adjust their claims they are estopped from taking advantage of the delay in the service of summons; (2) genuine disputed questions of fact were raised on the affidavits filed in connection with the motion to dismiss and the motion should therefore have been denied; and (3) the filing of a general appearance of Lincoln Devon waived any claimed defects in service.

The plaintiffs filed an answer to Lincoln Devon’s motion to quash service alleging that Miss Hill, the defendant’s agent, was present at the time of the occurrence on July 26, 1960, and that Lincoln Devon was fully apprised of the facts. Plaintiff’s attorney alleged in a supporting affidavit that on the date of the occurrence Miss Hill sent nineteen-year-old Ronald Sullivan to Dr. Zachary for medical services. Shortly thereafter the boy’s father, Chief Thomas Sullivan, informed Lincoln Devon by telegram of the occurrence. On February 27, 1962, plaintiff’s counsel served Lincoln Devon with a notice of attorney’s lien and in his affidavit he stated that he received a letter dated February 27, 1962, from Safety & Claims Service, Inc. acknowledging the notice of lien and informing him that as adjusters for Lincoln Devon, “We shall be glad to discuss this claim with you at any convenient time.” Also attached to the affidavit was a medical report of Dr. Sugar dated August 20, 1960, which was mailed to Dr. Zachary and informed him of the medical services he had rendered to Donald Sullivan. It was also alleged that after Lincoln Devon was served with an alias summons their attorneys served plaintiff’s counsel with a copy of a general appearance which was filed and with an answer to the complaint which was not filed, wherein they indicated that they were fully aware of the occurrence. It was further stated that upon the filing of the suit plaintiffs paid the sheriff for service upon defendants including Lincoln Devon and Nissen Trampoline Company.

The sole question before us is whether plaintiffs’ suit against Lincoln Devon Bounceland, Inc. and Nissen Trampoline Company was properly dismissed for failure to show reasonable diligence to obtain service upon these firms. It is undisputed that plaintiffs brought this action on the last day before the statute of limitations would take effect. As to Nissen no summons appears to have been placed for service and no return was made regarding this firm by the Sheriff. As to Lincoln Devon it was not until almost two years after the original summons was returned unserved that plaintiffs placed an alias summons with the Sheriff and it was then that an alias summons was also placed for service upon Nissen.

The record does not reveal any showing of reasonable diligence to serve Lincoln Devon. It appears that it is an Illinois Corporation with a registered agent residing in Chicago. No explanation was made for the delay in placing an alias summons for almost two years. It is true that Lincoln Devon was aware of the accident and its adjusters acknowledged receipt of the attorney’s lien served on them by the plaintiffs’ attorney. It also appears that the last contact between them occurred six months prior to the filing of the suit. Plaintiffs have cited cases in support of their contention, but each of them involved the running of a statute of limitations and not the Supreme Court Rule for the expeditious handling of suits which have been filed. There are no facts alleged by plaintiffs from which it can be concluded that they were induced by negotiations or of a promise of settlement which would estop the defendants from claiming a dismissal under Rule 4(2). As to Nissen, it is difficult to imagine a stronger case to invoke Rule 4(2) as no attempt was made to serve it until about four years after the occurrence and about two years after the suit was commenced. The trial court properly dismissed the suits against the defendants, Lincoln Devon Bounceland, Inc., and Nissen Trampoline Company. See Caliendo v. Public Taxi Service, Inc., 70 Ill App2d 86, 217 NE2d 369.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Taylor, Defendant-Appellant.
    Gen. No. 50,595.
    First District, First Division.
    April 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 E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was indicted and found guilty upon a bench trial of the charges of deviate sexual assault and aggravated battery. He was sentenced to the Illinois Penitentiary for a term of one to five years. He prosecutes this appeal raising as his sole point, the failure of the State to bring him to trial within 120 days after he had answered ready for trial.

The facts are not in dispute. Defendant answered ready for trial on October 30, 1964, and at all times subsequent thereto. After several continuances, the case was set for trial on February 25, 1965, and when called on that date it was held for trial. The following day, and within the 120-day period from October 30, 1964, the State filed a written petition with the court, requesting a continuance of 60 days in accordance with the “four term act.”

The petition filed by the State sets forth that the physician who had examined the victim had left his former employer, Cook County Hospital; that the State expects to find him and have him testify at the trial; and that the State was exercising due diligence to obtain said witness.

Although the defendant objected to the granting of the petition for extension of time, it was granted by the trial judge. The case was tried March 31, 1965, at which time the physician who was named in the petition testified.

We fully agree with the defendant that his right to a speedy trial, as guaranteed by the Illinois Constitution, Article II, section 9, is to be jealously guarded. It was to this end that the legislature enacted section 103-5 of the Criminal Code, commonly called the “four term act.” However, we find that defendant was properly tried within the time limits set by that section of the code.

Defendant argues that the trial judge should not have granted the State’s petition for the allowable extension of time. The Statute clearly provides that “if the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later date the court may continue the cause on application of the State for not more than an additional 60 days.” Ill Rev Stats c 38, § 103-5 (c) (1963).

It is defendant’s position that the mere allegation in the State’s petition of “due diligence” is nothing more than a conclusion and no facts are contained therein to support that conclusion. The facts, argues defendant, show not only a lack of due diligence by the State, but negligence. The only fact pointed to is the number of continuances.

We do not agree with defendant’s position. As was stated in People v. Poland, 22 Ill2d 175, 174 NE2d 804 (1961):

“The question of whether a continuance should be granted must, of necessity, rest in the discretion of the trial judge, and his action in granting or denying a continuance will not be disturbed unless there has been a clear abuse of discretion.”

Although the State had been granted several continuances, we do not find that as a matter of law, granting the State’s petition here was an abuse of discretion.

We also do not agree with the defendant that the State’s petition under section 103-5 was insufficient. In People v. Tamborski, 415 Ill 466, 114 NE2d 649 (1953), the Supreme Court held an oral motion for an extension of time beyond the four term act was proper. In the recent case of People v. Canada, 81 Ill App2d 220, 225 NE2d 639, this court considered the same argument, with respect to petition for extensions of time under the four term act, as is presented in the instant case. Section 103-5 of the Code of Criminal Procedure, under which the instant case was tried, is the present codification of Ill Rev Stats (1961), c 38, § 748. We agree with the conclusion of the court in Canada where it stated that a petition for extension of time past the four term act requires:

“. . . only that the court be satisfied that due exertion has been exercised to obtain the relevant evidence on behalf of the State and that there is reasonable ground to believe that such evidence will be obtained in time for trial at a designated later date not more than sixty days from the time the continuance is granted.”

The State properly presented a petition for extension within the time limits of the four term act. Under the circumstances we must assume that the trial court was satisfied and did determine that the State had exercised due diligence in procuring its witness and that there were reasonable grounds to believe he would be produced at a later date.

The trial judge did not abuse his discretion in granting the continuance of less than 60 days and defendant is not entitled to discharge on the ground that he was not tried within the time required by law.

Judgment affirmed.

MURPHY, P. J. and BURMAN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Aster Turner, Jr., Defendant-Appellant.
    Gen. No. 51,276.
    First District, First Division.
    April 10, 1967.

      Eugene T. Noonan, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Yeldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Defendant-appellant, Aster Turner, Jr., was indicted for murder and his codefendants, Curtis Sanders and William Jenkins, were charged with being accessories after the fact and with murder. After a joint jury trial in July 1961, defendants Jenkins and Sanders were found not guilty on the murder charge and on being found guilty of being accessories after the fact were each sentenced by the court to one year to one year and a day in the penitentiary and fined $1 which fine was suspended. The jury found the defendant Aster Turner, Jr. guilty of murder and fixed his punishment as imprisonment in the penitentiary for a 199-year term and he alone brings this appeal.

The defendant contends: (1) that the evidence is insufficient to prove his guilt beyond a reasonable doubt because: (a) the deceased threatened to use force against the defendant; (b) the defendant was not the aggressor; (c) the danger to the defendant was imminent; (d) the force threatened by the deceased was unlawful; (e) the defendant reasonably believed that danger existed, that the use of force was necessary to avert the danger and that the kind and amount of force he used was necessary. It is further contended: (2) that the trial court committed numerous errors during the trial: (a) in refusing to allow Mrs. Mollie Turner to testify to Driver’s reputation for violence, and in refusing to allow her to testify about threats which she received prior to the shooting; (b) in excluding evidence that Driver was a member of a gang known as the Vice Lords; (c) in allowing the statement of codefendant William Jenkins to be considered as evidence of the defendant’s guilt; (d) in instructing the jury that they might consider the element of flight in determining the defendant’s guilt; (e) in ignoring the defendant’s plea of self-defense in its instructions on the definition of murder and that the prosecutor’s closing argument was inflammatory and not based on the evidence to the prejudice of defendant.

The testimony presented by the State showed that on the evening of June 10, 1961, Malcolm Driver, Vivian Collins and James Ruffin were standing in front of a tavern at 3510 Ogden Avenue when an automobile containing four men pulled to the curb in front of them. The defendant, Aster Turner, Jr., and Curtis Sanders got out of the car and the defendant asked Driver if he would buy him a drink. Driver testified he refused and asked Turner, “did he want me to buy him a drink for the way he had treated me the Saturday night before then. And when I said this he said he would blow my brains out on the street. And I said if you do, you have to shoot me in the back.” He said he then started walking away and when the defendant told him to stop he heard Vivian shouting that he should be careful because the defendant had a gun in his hand, “And when I turned around, he was standing with the gun on me.” He testified that he then met Charles Garrett, the deceased, who asked him what was happening and after being told Garrett walked up to the defendant and told him, “You don’t bring no four men on this corner to double team one man about something that is over with.” He said the defendant cursed Garrett, ran back to the car and as the car started pulling away he started shooting. He heard three shots and saw Garrett, who was fifteen feet from the car, fall down.

James Ruffin testified that after the car pulled up he saw the defendant get out and walk up to Driver, pull out a gun and after putting it back in his belt, got into the car. He said Garrett came out of the tavern, walked up to the car and someone in the car cussed him. He heard three shots and Garrett was killed. On cross-examination he said that prior to the shooting he heard the defendant say, “I’ll kill you” and Driver replied, “If you are going to shoot me, you are going to have to shoot me in the back and he turned around and walked away.” He said there was no argument between them, just loud talking. He also said that Garrett was about four or five feet from the car when the shots were fired and he testified on redirect that the car was pulling away when he heard the shots and saw Garrett fall to the ground.

Fourteen-year-old Vivian Collins testified that the defendant and Driver were arguing and the defendant “showed” a gun. She said Garrett went over to see what was wrong, and as the car was moving he pointed to the defendant and said something and “before I knows it, X just saw two shots go off” and Garrett was shot. On cross-examination she said both Driver and the defendant were cussing each other. She also said that Garrett was close to the car when the defendant shot him, that there were no words between them when it happened and that the defendant did not threaten Garrett.

Dr. Eulogio Tappia, a coroner’s pathologist, testified that two bullets went through Garrett’s body, one penetrating his lung hitting the spinal cord and the other hitting the groin. He said there was alcohol present in Garrett’s body, but it did not amount to intoxication.

Aster Turner, Jr. testified in his own defense that he received several phone calls shortly before the shooting threatening to kill him, his wife and baby, including one call from Driver whom he knew for about one year. On the day in question he and William Jenkins were in an automobile driven by Curtis Sanders and were on their way to purchase liquor when he saw “C. L.” (Driver’s cousin) a friend of his, and he told Sanders to stop. He said he asked “C. L.” if he had any money and when he said no he asked him if he wanted a drink and “C. L.” said no. He said “C. L.” left, and Driver came over and threatened to kill him. When Sanders came out of the tavern they returned to the car. He said when they got in the car Driver had a knife in his hand and Garrett, whom he didn’t know, pulled a gun and fired in the car. “And when he shot, I went in the coat and got the pistol out.” He testified that he did not have the pistol outside the car, but that he had left it inside his coat in the car.

On cross-examination he said that after Garrett shot and hit the inside roof of the car, he took his gun from his coat and fired two shots. He also said that he had the loaded gun with him because “they had threatened his life.” At the time of the shooting he said Driver was attempting to open the car door and had a knife in his hand. He admitted that he never told the police he shot in self-defense.

Curtis Sanders testified that he had not known Garrett or Ruffin before the occurrence but had seen Driver before. He said when they arrived at the tavern the defendant told him to stop because he saw a friend of his. They got out of the car and while the defendant was talking to “C. L.” he went into the tavern to purchase whiskey and when he came out he saw four men arguing with the defendant and cursing him. After he heard Driver threaten the defendant he said he pushed Turner to the car, warning him that the men were gang fighters. He testified that he saw four men “rushing the side of the car” when a “gunshot goes off right over the right hand side of the convertible top of the car.” He also said that Garrett pulled the car door open as he was pulling out and that the defendant didn’t have a gun when he was outside the car. On cross-examination he testified that after a shot was fired over the defendant’s head he saw the defendant fire his gun, but he didn’t know if Turner shot the man.

C. L. Driver testified for the defense that he met the defendant as he came out of the tavern at the site and was asked if he had any money and when he said no the defendant asked him if he wanted a drink, and he again declined. He further testified that, “He (defendant) said he had been arguing with some guys. He said he didn’t know who the guy was. I said, well, is that them coming there. He says he didn’t know. I says, well I have got to go, and I left.”

Mollie Turner, the defendant’s wife, testified that in the month preceding the occurrence there were several phone calls by men who would not give their names. She said she knew Driver for two years, that he came to her home with her husband many times, that he wore an earring and that his reputation in the community was bad. On cross-examination she said her babysitter told her of Driver’s reputation, but that her husband was not aware of this reputation.

Opal Jenkins, wife of the codefendant William Jenkins, testified that she knew Driver for about six months and that his reputation in the community for being a peaceful citizen was bad.

The defendant first contends that the evidence is insufficient to prove him guilty beyond a reasonable doubt as Garrett had threatened him, followed him to the car, and then fired a gun at him, and he points out that the police found a bullet hole in the car top. He further argues that even though one may be the initial aggressor, if he abandons the aggression he may use force to defend himself if threatened with death or great bodily harm, citing People v. Forte, 269 Ill 505, 110 NE 47 and People v. Allen, 378 Ill 164, 37 NE2d 854. The defendant maintains that he reasonably believed that danger existed, that the use of force was necessary to avert the danger, and that the kind and amount of force he used was necessary. People v. Motuzas, 352 Ill 340, 185 NE 614.

The State’s evidence, offered through Malcolm Driver, James Euffin and Vivian Collins, showed that the defendant pointed a gun at Driver and threatened to kill him before returning to the car. They also testified that neither Driver nor Garrett attacked the defendant or had a weapon of any type at any time. It is admitted that the defendant brought a loaded automatic with him to the scene of the occurrence and it is uncontradicted that when he fired two bullets that killed Garrett the car was moving, leaving or pulling out. Whether the killing of Garrett was justified under the law of self-defense was, in our opinion, placed squarely before the jury, and is always a question of fact to be determined by the jury under proper instructions. People v. Johnson, 2 Ill2d 165, 117 NE2d 91. Once the jury has decided that fact question a reviewing court will not disturb that finding unless the evidence is palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify entertaining a reasonable doubt of the defendant’s guilt. People v. Jordan, 18 Ill2d 489, 165 NE2d 269; People v. McClain, 410 Ill 280, 102 NE2d 134. We are satisfied that there was ample evidence to support the verdict of the jury.

The defendant maintains that the court erred in refusing to allow defendant to introduce evidence of self-defense by (a) refusing to allow the defendant’s wife to testify to Driver’s reputation for violence and threats she had received immediately prior to the shooting and (b) in excluding evidence that Malcolm Driver was a member of a gang known as the Vice Lords. During the examination of the defendant’s wife she was asked if she knew Driver’s “reputation in the community for fighting and belligerence” and the court sustained the State’s objection to the question. In support of his argument the defendant cites People v. Brindley, 369 Ill 486, 17 NE2d 218, where the court held that it was error to totally exclude evidence offered to prove the reputation of the deceased in the community was that of a dangerous, quarrelsome and vicious man where there were no eyewitnesses to the killing and some testimony that the deceased was the assailant. The circumstances in the instant case differ from Brindley. Here the court agreed with defense counsel that he could ask about Driver’s reputation in the community, but suggested he should lay a foundation first which counsel then did. Later, with the court’s assistance, counsel asked the witness whether she knew Driver’s general reputation for being a peaceful and law-abiding citizen and was it good or bad and she answered that it was bad. Mrs. Opal Jenkins also testified that Driver’s reputation in the community for being a peaceful citizen was bad. Under the circumstances we can only conclude that the trial court committed no error in its original ruling on admissibility.

It is also contended that the court erred in sustaining objections to conversations regarding threatening phone calls Mrs. Turner said she received. One of these calls she admitted was received by her sister and testimony as to this call would be clearly hearsay. She said the other two phone calls were made by men, but she didn’t know their names or who they were. We are of the opinion that the objection to the phone conversations was properly sustained as the witness was unable to lay a proper foundation for these calls. The Illinois rule is that telephone conversations, the substance of which is relevant and material to the issues, are competent provided the identity of the person with whom the conversation was had is established by direct evidence or facts and circumstances. People v. Nichols, 378 Ill 487, 38 NE2d 766.

Furthermore, the defendant did testify that he had been getting phone calls and that one of them was from Driver who he said threatened to kill him. He also testified that he received another call from an unknown person who threatened him about the same matter as Driver had and who also threatened to kill him. We are satisfied that the jury was amply informed by the Turners that they were receiving threatening phone calls shortly before the shooting.

The defendant further contends that the court erred in excluding evidence that Driver was a member of a gang known as the Vice Lords. The record shows that Mrs. Turner said Driver wore an earring and when she was asked what it signified an objection was made and sustained. She was also asked whether Driver was a member of the Vice Lords or any gang and an objection that it was leading and suggestive was made and sustained. Mrs. Jenkins was also asked whether Driver was a member of the Vice Lords and her affirmative answer was stricken. The defendant made an offer of proof intended to show that Driver was a member of the Vice Lords, a gang sworn to violence, which was also denied. The defendant argues, and we agree, that where the claim of self-defense is asserted in a prosecution for murder, every circumstance which tends to explain the defendant’s motive should be submitted to the jury. Williams v. The People, 54 Ill 422; Davids v. The People, 192 Ill 176, 61 NE 537. However, we are of the opinion that the evidence the defendant wished to place before the jury — that the Vice Lords were a gang sworn to violence, that Driver was a member and by inference that the deceased was also a member — was repeatedly presented to the jury by subsequent testimony.

Codefendant Sanders testified on direct that when he pushed the defendant away from Driver he told the defendant, “Man, don’t you know this is those gang fighters you are messing with, you better get in the car, we ain’t got nothing to protect ourselves, because those guys break people’s legs and go on the street.” On cross-examination he said he didn’t know the deceased and when asked if he knew Driver he answered, “Yes, they said he was a Vice Lord because he had an earring in his left ear.” He stated that the members of the Vice Lords wear an earring.

The defendant, on direct, related that in a phone conversation prior to the occurrence he told Driver, “I said what do you mean you are going to kill me, who all are going to kill me. He said, ‘Us Vice Lords.’ ” He also said that he received a call from an unknown person who identified himself as a Vice Lord and threatened him. The following day he said he was almost run over by a car and that a person in the car said, “We are Vice Lords, don’t get in our way” and that, “I knew it was the Vice Lords, because they had the earrings in the left ear.” He also testified that when Sanders came out of the tavern during his argument with Driver, Sanders said, “Look, man, you go ahead leave the Vice Lords, you don’t know these teenagers they kill people and knock people’s eyes out.” He said the deceased told him, “Don’t nobody f-with the Vice Lords,” just before he shot at the defendant.

It is clear from the record that the defendant by persistence amply informed the jury that Driver and the deceased were members of the Vice Lords, a gang sworn to violence. After considering this later testimony we are of the opinion that the trial court’s earlier exclusion of testimony was not prejudicial to the defendant. When the same substantial evidence is produced by subsequent testimony, its earlier exclusion is not a ground for reversal on appeal. People v. Jones, 26 Ill2d 300, 186 NE2d 314.

It is next contended that it was error to allow the oral statement of William Jenkins made to the police after his arrest, to be considered as evidence of Turner’s guilt. Detective John Loftus related various oral statements made by Jenkins at the time of his arrest. When he said Jenkins told them that the deceased was 15 or 20 feet from the car when he was shot, defense counsel for the first time objected and moved that any statements made outside the presence of the other two defendants be stricken. The court stated that it was admissible against Jenkins and did not at that time instruct the jury to disregard the statement as to the other two defendants, as requested by defense counsel. Counsel then proceeded to cross-examine the witness about the oral statements made by Jenkins. Immediately after this testimony and upon suggestion of the court the written statements of Curtis Sanders and William Jenkins were offered and received into evidence over objection. Before the statements were read to the jury the court instructed the jury as follows:

The jury will understand, however, that these statements are admitted only and solely against the person making them. He has a right to tell the officer his part in the transaction. If the State wants to use him as a witness against the other two defendants, they should put him on the stand. But the statement as to each defendant, showing his presence or part in the controversy, in which he admits to the officers his part, is admissible against him. And with that reservation objection overruled.

Defendant’s principal argument appears to be that prior to Detective Loftus’ testimony the State’s witnesses were in conflict about the distance between the deceased and the car at the time of the shooting. Because of this conflict it is urged that the trial judge erred in refusing to instruct the jury that Loftus’ statement that Sanders said the deceased was 15 or 20 feet from the car was to be disregarded by the jury as evidence of Turner’s guilt. People v. Tyner, 30 Ill2d 101, 195 NE2d 675. It is true that the trial judge did not immediately admonish the jury upon objection, but the court did promptly so instruct the jury immediately after the close of this testimony. It is established by Tyner and People v. White, 28 Ill2d 23, 190 NE2d 817, that when two defendants are tried jointly the statement of one defendant is admitted into evidence, even though as to the other defendant it is a hearsay accusation, if its admissibility is limited to the defendant who made the statement. In the case at bar no objection was made to the officer’s relating the oral statements of Sanders until he testified as to the complained of distance and the comments of the court at that time showed that he was concerned whether some of Sanders’ other oral statements were not objectionable. The court then suggested that the matter of the written statements of the codefendants be discussed which was done. It is obvious that the court intended to instruct the jury about the objected to oral statement and the written statements at one time, which he did, while it was fresh in the minds of the jury. We discern no error in this procedure.

It is next contended that the court erred in instructing the jury that they might consider the element of flight in determining the defendant’s guilt. It is hornbook law, the defendant states, that it is error to give instructions not applicable to the evidence in the case. People v. Lawson, 351 Ill 457, 184 NE 606. It is uncontradicted, as argued, that the defendant in the case at bar surrendered himself and that his counsel gave the police the automatic which was admitted into evidence. In People v. Davis, 29 Ill2d 127, 193 NE2d 841, cited by defendant, the Court held that it was prejudicial error not to permit the defendant who had surrendered himself to testify as to what motivated his flight. In People v. Martin, 380 Ill 328, 44 NE2d 49, the defendant was charged with taking indecent liberties with a child. The Court there found the testimony of the child of doubtful value because while she said the defendant was not the man, on confronting him one week after the incident, she had changed her mind at the time of the trial after a talk with her mother and the prosecution. The State had contended that the flight of the defendant was proof of his guilty conscience and tended to corroborate the testimony of the child. It was there held that the fact that the defendant was highly nervous and mentally unstable, and was easily persuaded to return and surrender when no charges had been made against him up to that time, overcame the presumption which the State contended arose because of his alleged flight. Neither of these cases held, per se, that the giving of a flight instruction in itself was improper.

In the instant case there were eyewitnesses to the shooting. The defendant’s testimony, and that of his co-defendant, placed the deceased at the car when the car was moving and the defendant fired the fatal shots. This occurred on June 10th and on June 24th, Curtis Sanders, the codefendant, was apprehended and arrested after a search. He told the officers that the car belonged to William Jenkins and in his signed statement he said that when the deceased came to the car, after the defendant had an argument with another fellow, the defendant took a gun from his belt and fired one or two shots and the deceased clutched at his stomach. They left the scene of the shooting and when they stopped the car, some distance away, Jenkins asked the defendant where he got his gun and the defendant replied that his father gave it to him.

The defendant admitted that he knew he shot his automatic at close range to the deceased and twenty days later surrendered himself on the advice of his attorney. During that period of time the police were looking for the persons responsible for the shooting. Whether the defendant was in hiding was a question of fact and the jury was instructed that the fact of flight was a circumstance to be considered with all the other evidence in the case as tending to prove guilt. We are satisfied that this instruction was based on the evidence in the case and was proper.

The defendant also objects to certain remarks made by the prosecutor, in closing argument, to the effect that, “You know there is an old saying when counsel doesn’t have a defense then they have to invent one.” The prosecutor then said, “And here we have heard the invention of the Vice Lords. That is all they have talked about. Yet there is no evidence under oath that these boys belonged to any club.” No objection was made to these remarks at the trial. As was stated in People v. Woodley, 57 Ill App2d 380, 206 NE2d 743, every remark reflecting on opposing counsel will not serve as grounds for reversal, though there can be no doubt that such remarks should not be indulged in. Nor will every improper or ill advised statement, in the closing argument to the jury, warrant reversal of defendant’s conviction. Having examined the entire record we are of the opinion that the remarks complained of did not influence the jury so as to result in substantial prejudice to the accused. People v. Simmons, 26 Ill2d 400, 186 NE2d 263; People v. Burnett, 27 Ill2d 510, 190 NE2d 338.

It is further contended that the trial court erred in ignoring the defendant’s plea of self-defense in its four instructions to the jury on the definition of murder citing People v. Ruffin, 406 Ill 437, 94 NE2d 433. In Ruffin it was held that the instructions did not fully and fairly announce the law applicable to defendant’s plea of self-defense. In the instant case, however, three detailed instructions on the subject of self-defense were given as follows:

The Court instructs the jury that if a person is assaulted in such a way as to induce in him a reasonable and well-grounded belief that he is actually in danger of losing his life or of suffering great bodily harm, then he would be justified in defending himself whether the danger is real or only apparent. Actual and positive danger is not necessary to justify self-defense. All that is necessary is that the defendant had reasonable grounds to believe that the danger was real and about to befall him, and if he acted in good faith and under an honest belief that he was in apparent danger of losing his life or receiving great bodily harm, then he cannot be found guilty even though he may have made a mistake as to the impending danger.
There is no law requiring a defendant, when threatened with danger to retreat or flee to safety. The law does not require a man to avoid the presence of other persons who affect the freedom of the street and proper places. A man, if unlawfully assaulted in a place where he has a right to be, and put in danger, real or reasonably apparent, of losing his life or receiving great bodily harm, is not required to endeavor to escape from his assailant, but may stand his ground and repel force with force, even to the taking of the life of his assailant, if necessary, or in good reason apparently necessary for the preservation of his own life or to protect himself from receiving great bodily harm.
The Court instructs the jury, as a matter of law, that before a defendant can avail himself of the right of self-defense, as the same is defined in these instructions, it must appear to him, acting as a reasonable person, that at the time of the killing the danger was apparently so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily harm, the killing was absolutely necessary.

The record also reveals that the court further instructed the jury that each instruction should be considered with all other instructions bearing upon the same subject. Defendant also concedes, in his reply brief, that each and every instruction need not make reference to self-defense. It is sufficient if the series of instructions, construed as a whole, fully and fairly announced the law applicable to the theories of the defendant. People v. Sims, 393 Ill 238, 66 NE2d 86.

However, it is also contended that one of the self-defense instructions was erroneous because it stated that in order to establish self-defense, the defendant’s belief that he was in danger must be “well grounded.” It is argued that this requirement was erroneous since it imposed a stricter degree of proof than the law requires citing People v. Beil, 322 Ill 434, 153 NE 639. In Beil the Court stated that the additional requirement of a “well grounded belief” imposes the burden of a stricter or greater degree of proof than the law exacts and in that respect was erroneous, but the Court held that inasmuch as the complained of instruction was offered by the defendant he couldn’t complain. We have examined the abstract and record in the instant case and are unable to determine who offered the self-defense instructions, nor do we detect any objection in the record by defendant to the self-defense instructions given by the court. From our examination of the three instructions, in view of the evidence, we are satisfied that taken as a group they properly state the law of self-defense.

It is further contended that the prosecutor was guilty of misstating the evidence and further inflamed the passion of the jury by brandishing the weapon in front of the jury. It appears that the prosecutor, in closing argument, misstated that the defendant surrendered himself only after Jenkins and Sanders had been captured. The record disclosed that only Jenkins had been arrested at the time. When an objection was made, the prosecutor began to say, “If I have misstated it” when the court promptly commented that “the jury recalls the evidence.” The jury heard the evidence and this misstatement, in our opinion, was harmless and did not mislead them. The prosecutor in brandishing the weapon before the jury argued “or does it sound that it is the desperate plea of the man who doesn’t want to pay for his crime ... a man who wants to hoodwink a jury and walk out of here free to take his gun back with him and to shoot someone else.” Defense counsel objected saying, “Oh, I am going to object to this your honor. This is highly inflammatory.” The court said, “Well the gun will be confiscated. Nobody will get a hold of the gun.” The defendant argues that in addition to this inflammatory argument the error was compounded by the court’s remarks which he states inferred to the jury that he believed that the defendant was guilty. We do not agree. If anything, the court was correctly dismissing from the minds of the jury the possibility that any one would get the gun back so that the remark of the prosecutor would not affect the jury. In People v. Burnett, 27 Ill2d 510, 517, 190 NE2d 338, the prosecutor stated that the deceased had a right to her life and, “She lies cold in her grave. All she can do, we must do for her.” Also, “Of course counsel in an attempt to throw up a smoke screen to fool the jury . . The Court while criticizing and not condoning these and other remarks by the prosecutor concluded, in Burnett, as we do here, that the entire magnitude of the prosecutor’s argument, after reviewing the entire record, did not justify a reversal even though the jury in the instant case fixed the defendant’s sentence which as defense counsel points out was not the situation in Burnett.

We therefore conclude that the defendant was proven guilty of the crime of murder beyond a reasonable doubt, that he was given a fair trial, and that no prejudicial error occurred.

The judgment of the Criminal Division of the Circuit Court is therefore affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


author: JUSTICE GOLDENHERSH.

text:
    James A. Secrest, Sheriff of Christian County, Illinois, Plaintiff-Appellee, v. Dwight H. Doss, et al., Defendants-Appellants.
    Gen. No. 66-98.
    Fifth District.
    April 8, 1967.
    Rehearing denied June 9,1967.
    Burger, Geisler & Fombelle, of Decatur (Norman J. Fombelle, of counsel), for appellants; Holland F. Tipsword, State’s Attorney, of Taylor-ville, for appellee.
   Opinion by

JUSTICE GOLDENHERSH.

Not to be published in full.