author: MR. JUSTICE MURPHY

text:
    Leonard Krantz, Plaintiff-Appellant, v. Albert O’Neil, Defendant-Appellee.
    Gen. No. 52,201.
    First District, First Division.
    July 29, 1968.

      Leonard R. Grazian, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago, of Chicago (Marvin E. Aspen and Stuart Sikevitz, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Plaintiff appeals from a verdict and judgment in favor of defendant, Albert O’Neil, a Chicago police officer, in plaintiff’s action for personal injuries caused by the shooting of plaintiff by defendant while on duty. Plaintiff asserts trial errors and improper instruction of the jury.

On April 8,1959, at about 10:45 a. m., Edward Przybylski, a cigar salesman, parked his car in front of a tobacco shop in Chicago and called his office to report he was being followed by three men in a 1958 Chevrolet. The defendant and Howard Rauhut, two plainclothes Chicago police officers, were dispatched to join Przybylski at the tobacco shop. From the shop defendant observed and recognized the plaintiff and his two companions, Edward Orlowski and John Kolman, parked nearby in a Chevrolet. Kolman left the car and walked down the street, where he stopped to examine and meddle with the automobile of Przybylski. When defendant stepped from the store to join Rauhut in an unmarked car, the Chevrolet’s horn sounded, and Kolman rejoined the two men in the car. The Chevrolet then executed a U-turn, and the three men drove away, pursued by defendant and Rauhut. In the course of the chase, and after firing two warning shots in the air, defendant fired several shots at the Chevrolet. A final shot struck plaintiff in the head, leaving him permanently blinded. Plaintiff sued both police officers. At the trial the court allowed a motion for a directed verdict of not guilty as to Rauhut, and the jury returned a verdict of not guilty as to O’Neil. Plaintiff appeals from the O’Neil verdict only.

The contentions of plaintiff on appeal include: 1. The jury was improperly instructed. 2. Improperly admitted into evidence were: (1) the details of plaintiff’s previous burglary conviction; (2) a transcript of plaintiff’s previous burglary conviction; (3) testimony concerning a prior arrest and incarceration of the plaintiff; (4) photographs of items confiscated from plaintiff on a previous arrest; (5) police department records; (6) keys, lock picks and tools; and (7) testimony relating to the Chicago police department’s regulations for the use of firearms.

Plaintiff, Leonard Krantz, testified that on April 8, 1959, at about 9:00 a. m., he, Orlowski and Kolman drove to plaintiff’s home at 4417 North Canfield in Orlowski’s automobile, a 1958 Chevrolet, where they made some measurements for the installation of a canopy. They then left for Western and Homer, where plaintiff and Kolman intended to do some work on a building owned by plaintiff. At Irving Park and Parkside, Orlowski stopped the car, and Kolman got out and walked east to a drugstore. After a few minutes Kolman returned to the car. Orlowski then turned left, and the three men drove north on Parkside back toward plaintiff’s home. After going about two blocks north, plaintiff heard the roar of an engine and the sound of a gunshot. He turned around and saw that the rear window was shattered. He also saw two men wearing ordinary clothing and driving a 1955 Plymouth, which was without distinctive markings, mars light or siren. One of the men had a gun in his hand. After the first shot was fired, Orlowski accelerated from the twenty or twenty-five miles-per-hour speed at which he had been driving. About three-fourths of a block after the first shot, the Chevrolet in which plaintiff rode slowed down, and another shot was fired at it. It seemed that each time Orlowski slowed down, another shot would be fired. No gunfire was returned from the car in which the plaintiff rode, and the plaintiff was unarmed. When Orlowski slowed for a stop at Austin and Cullom, plaintiff raised up from the front seat where he had taken shelter from the gunfire. He faced the approaching car, from which the gunfire had come, with his hands up in the air. He saw a flash come from the gun and heard the sound of a shot. Then everything turned white and then black. Since that time he has been permanently blinded.

On cross-examination, plaintiff testified concerning a 1956 burglary indictment, to which he and Kolman pleaded guilty, and plaintiff was placed on probation.

Defendant and Howard Rauhut were called by the plaintiff as adverse witnesses.

Frank Walker, plaintiff’s final witness, testified that at the time of the occurrence he was driving south on Austin near Cullom. He saw the ’58 Chevrolet at the corner moving at less than fifteen miles per hour. At about the same time as he saw the car, he heard a shot. As the Chevrolet entered Austin, a Plymouth pulled around it. On the passenger side of the Plymouth he saw an arm and a gun. The Plymouth took a wide turn into Austin, and both vehicles came to a stop.

The first defense witness was Edward Przybylski, a cigar salesman, who lived in Harwood Heights in April 1959. He testified that on the morning of April 8, 1959, he was making deliveries and had cigars and sundries in his car worth about $500. He made a call in Melrose Park, where he observed three men in a ’58 Chevrolet following him. He recognized plaintiff as one of the men, because a year earlier he had been followed by plaintiff, and he had called for the assistance of the Harwood Heights police. Przybylski then drove to a tobacco shop at 5616 Irving Park, Chicago, where he parked his car. Inside the shop he called his office and reported that he was being followed. He stayed in the shop across the street from his car for about twenty minutes. Defendant and Rauhut entered the tobacco shop through the back door. He told them about the men in the car which had followed him from Melrose Park. He pointed out the ’58 Chevrolet as it passed the shop going west on Irving Park. Przybylski then left the shop and walked to a nearby drugstore. He then returned to his car and found it just as he had left it, and there were no marks on it.

The defendant testified that on April 8, 1959, at about 10:30 a. m., he and Officer Rauhut were assigned to investigate suspicious men following a tobacco salesman by the name of Przybylski. They drove to the tobacco shop at 5616 Irving Park Road in a marked police car. Przybylski then told him of the men in the ’58 Chevrolet and pointed out the car and stated that he had caused the plaintiff to be arrested about a year earlier. The defendant recognized the three men. He had seen Kolman and the plaintiff while they were held at the 33rd District police station about a year previous to the occurrence.

Defendant further testified that Rauhut returned to the police station for an unmarked car. While Rauhut was gone, he told Przybylski to make a call on the southwest corner of Irving Park and Central. After Przybylski left, defendant saw the Chevrolet park on the south side of Irving Park at Parkside. Kolman left the Chevrolet and walked east to Przybylski’s car. He carried a shiny object in his hand. He bent over the right front fender and then straightened up and put his hands on the right front vent window. At this time defendant stated he walked from the tobacco shop toward Rauhut, who had returned with an unmarked car. While defendant was walking toward Rauhut he heard Orlowski blow the horn in the Chevrolet, and Kolman returned to the car. The Chevrolet made a U-turn and drove north on Park-side.

Defendant stated that he and Rauhut followed in the unmarked car and drew abreast of the Chevrolet within a block. With his left hand defendant showed his police star, and “I told them to halt, that we were police officers. I held it right out of the window. They were five feet away from me. Their windows were open, and our windows were open. . . . They then accelerated . . . .” In the 4200 block on Parkside, as defendant and Rauhut again drew abreast, the Chevrolet forced them over the curb and again accelerated. At this point defendant fired two warning shots in the air. The vehicle turned left on Cullom and proceeded to speed up to 60 and 70 miles per hour. Between Austin and Parkside defendant fired more shots. As both cars continued down Cullom, he saw plaintiff throwing objects out of the right front window of the car. When defendant fired the second shot, plaintiff picked up a metal object somewhere from below defendant’s line of vision and had it in his hand. After-wards, defendant found it on the street, and it was a ratchet (identified as defendant’s exhibit 7). Other items picked up at the same time were lock picks, tools and other articles, all of which were inventoried by the police.

On cross-examination, defendant stated that when Kolman got out of the car, plaintiff remained in the car talking with Orlowski. He could not identify the object which Kolman had in his hand when he went to the Przybylski automobile. His vision was obstructed at the time that Kolman stood near the alarm on Przybylski’s car so he had been unable to see what Kolman did with his hands. At the time that Kolman put his hands to the vent window, defendant did not know where the shiny object was. He also stated that he fired four shots at the car in which plaintiff was riding. No gunfire was returned from the car in which the plaintiff rode, and plaintiff was found to be unarmed.

Officer Howard Rauhut substantially corroborated defendant’s testimony. He testified that he drove abreast of the Chevrolet in the 4200 block of Parkside. As the officers identified themselves as policemen, plaintiff bent over in the front seat and brought up from the floor a shiny object which looked like a pistol barrel. When Rauhut’s car again came abreast the plaintiff’s automobile and defendant ordered the men to pull over, the Chevrolet forced him from the road onto the curb. Rauhut stated that he later recovered from the Orlowski automobile a briefcase containing various tools, including a lock puller, lock picks, keys, an ignition switch and tinfoil.

Defense witness Edward L. Miller, a Chicago police officer, identified police records consisting of a “station complaint book” and a “recovered property inventory book.” These were books of original entries kept in the ordinary course of police business. Police Sergeant Petz, who made the entries, was dead. Over objection, pertinent portions of the books were received in evidence. The complaint book showed a “Station Complaint” on April 8, 1959, by telephone at 10:43 a. m., that “Three men in auto following tobacco truck 5616 Irving Pk.” Officers assigned were O’Neil and Rauhut. The inventory book showed entries on April 8, 1959, of physical objects “Found or Recovered From Street” at 5700 Cullom, with “Leonard Krantz” named as owner; also, physical objects recovered from “1958 Chevrolet,” with “Edw. Orlowski, John Kolman, Leonard Krantz” listed as owners.

Other witnesses for the defense included: (1) A Police Captain who testified that police regulations authorized the use of firearms in defense of a policeman’s life or in pursuit of a fleeing felon. (2) A Police Captain who testified as to his experience and knowledge of “paraphernalia and tools” that are used by persons involved in burglaries and explained the use of the various defense exhibits which had been found in the automobile of plaintiff. (3) A Lieutenant of Police from Harwood Heights who testified that he arrested plaintiff on July 3, 1958, and confiscated a number of items found in plaintiff’s car. Over objection, the court admitted into evidence two photographs of items taken from plaintiff at that time. (4) A man who was cutting grass at 5704 Cullom. He saw a car coming along at full speed, and there was no traffic in the street. There was another car about three-quarters of a block behind it “going on 55 to 60 miles an hour,” and he did not see the first car slow down at any time. (5) A Cook County Probation Officer who testified that defendant was on probation on April 8,1959.

The defense introduced into evidence, over objection, the articles recovered from the street and from the automobile in which plaintiff was riding, the police complaint book and recovered property inventory book; also, a certified transcript of plaintiff’s 1956 felony conviction.

Considered first is plaintiff’s contention that the jury was improperly instructed. Plaintiff states that at the time of the occurrence (1959), there were no Illinois cases or statutes which covered the right of a police officer to use deadly force on a person who has committed or attempted a “forcible felony” as now defined in the “Criminal Code of 1961,” chapter 38, article 7-5 (Peace Officer’s Use of Force in Making Arrest). Therefore, and with the use of available pertinent authorities, plaintiff drafted instructions 6 and 7 on the issue of the use of force by a police officer in making an arrest of a person, which were refused by the court.

On this issue, the court gave defendant’s instruction 16, which stated:

“A police officer may use deadly force or force that is likely to inflict great bodily harm on a person in order to arrest a person whom he is pursuing and whom he has reasonable grounds for believing has committed a felony.”

The court also gave “Court’s Instruction #1,” which stated:

“If any officer, in the execution of his office, in a criminal case, having legal process, be resisted and assaulted, he shall be justified if he kill the assailant. If an officer or private person attempt to take a person charged with treason, murder, rape, burglary, robbery, arson, perjury, forgery, counterfeiting or other felony, and he be resisted in the endeav- or to take the person accused, and, to prevent the escape of the accused, by reason of such resistance, he be killed, the officer or private person so killing shall be justified: Provided, that such officer or private person, previous to such killing, shall have used all reasonable efforts to take the accused without success, and that from all probability there was no prospect of being able to prevent injury from such resistance, and the consequent escape of such accused person.”

Plaintiff argues that defendant’s instruction 16 was erroneous because it omits an important element "that . . . the arrest cannot otherwise be effected . . . ,” and that the court’s instruction 1 was confusing and injected issues into the case that did not exist and which were not “borne out by the evidence adduced.” Plaintiff asserts that “legal process” signifies a warrant for arrest, and also “O’Neil did not use deadly force in self-defense to '. . . prevent injury from such resistance.’ ”

Plaintiff also complains of the giving of defendant’s instruction 9, which stated:

“On April 8, 1959, there was in effect a Statute of the State of Illinois, which provided as follows:
“When the fact that a felony has been committed shall come to the knowledge of any sheriff, coroner or constable, fresh pursuit shall be forthwith made after every person guilty thereof, by such sheriff, coroner, constable and all other persons who shall be by any one of them commanded or summoned for that purpose; every such officer who shall not do his duty in the premises shall be punished by fine in a sum not exceeding $100, or imprisoned not exceeding three months.”

Plaintiff argues that instruction 9 has no bearing on the issues of the case because the criminal penalty for nonfeasance by a police officer was not in issue here, and the instruction could only tend to confuse and mislead the jury.

In our opinion, it is difficult to fairly instruct a jury in “understandable, unslanted and accurate” language which a layman can understand in the very sensitive area of when a police officer, in the line of duty, may use deadly force, especially in hot pursuit, when split-second decisions are required.

It is obvious that the court’s instruction 1 was taken verbatim from paragraph 368 of chapter 38, Ill Rev Stats 1959, which dealt with justifiable homicide “by an officer resisted.” Defendant argues that parts of it were beneficial to plaintiff, in that “since there was no evidence at all in the case of any ‘assault’ upon the Defendant police officer, it would have been quite impossible for the jury to determine, on the sole basis of this first sentence of Court’s Instruction No. 1, that the Defendant was justified in his use of deadly force. Consequently, a verdict based upon the first sentence would have resulted in a judgment for Plaintiff.”

Generally, an instruction in the language of a statute is proper where it is not misleading and is pertinent to the issues in the case (35 ILP, Trial, § 196). Although the issues here may not have fully warranted the giving of the court’s instruction 1 and defendant’s instruction 9, we do not believe they were prejudicial to plaintiff or that they confused or misled the jury.

We find no error in the court’s refusal of plaintiff’s instructions 6 and 7, although either instruction might have been given with propriety. The giving of defendant’s instruction 16 was proper, and we agree with defendant that instruction 16 and the court’s instruction 1 substantially cover the elements contained in plaintiff’s instructions 6 and 7.

In sum, we have examined all of the instructions that were given to the jury in this case, and we find that the jury was adequately instructed as to the issues, and without prejudice to plaintiff.

Considered next is plaintiff’s contention that the court committed error in the admission of evidence concerning plaintiff’s prior conviction of the felony of burglary. Plaintiff points out that on cross-examination he readily admitted to the prior conviction, and that it was improper to inquire into the surrounding circumstances and to admit into evidence a certified transcript of defendant’s conviction, which contained the particulars of the offense, after plaintiff had already admitted the conviction.

In a civil case, the credibility of a witness or a party may be attacked by showing that the witness or party has been convicted of an infamous crime, and one of the methods of proving the conviction is by the witness himself. In the event of denial, the conviction may be proven by other witnesses cognizant of such conviction or by any other competent evidence. It is not necessary to prove the conviction by the record itself. Proof of previous conviction for an infamous crime is allowed to be shown for no other purpose than to affect the credibility of the witness. There is no statutory limitation as to the time of such previous conviction. Bezark v. Kostner Manor, Inc., 29 Ill App2d 106, 114, 172 NE2d 424 (1961).

We have examined the cross-examination of plaintiff on his burglary conviction in 1956, his probation for that offense, and the involvement of Kolman in the 1956 conviction. We believe the latitude allowed in this area of the cross-examination was proper and relevant. Also, it was not improper to permit plaintiff’s probation officer to testify that plaintiff was still on probation on April 8, 1959, because plaintiff had testified otherwise.

In view of the foregoing cross-examination of plaintiff concerning his burglary conviction, it was unnecessary to admit the transcript of the conviction. However, we do not consider that its admission prejudiced the plaintiff.

Plaintiff next asserts that it was improper to permit defendant to testify that he had seen Kolman and the plaintiff while they were held at the 33rd District police station about a year previous to April 8, 1959. We do not agree. This explained why defendant recognized plaintiff as one of the men in the Chevrolet and buttressed defendant’s use of a deadly weapon in his attempt to arrest plaintiff.

Plaintiff also contends that there was error in the admission of testimony relating to plaintiff’s arrest in Harwood Heights some nine months previous to the incident with which this case is concerned. We do not agree. This testimony explained the alarm which Przybylski experienced when he noticed that he was being followed and which he communicated to the defendant upon their meeting at the tobacco shop. Although we think it was improper to admit the photographs of the equipment which was taken from plaintiff on that arrest, we find no prejudice to plaintiff.

Plaintiff further contends that the police complaint book and the recovered property inventory book were hearsay and should not have been admitted into evidence. It may be argued that it was within the court’s discretion, with the exercise of caution, to have admitted these records, either on the ground that they were official records kept by the police in the performance of their duties (People ex rel. Wenzel v. Chicago & N. W. R. Co., 28 Ill2d 205, 211, 190 NE2d 780 (1963)), or as extrajudicial statements not involving the truth of the statements offered. (Shelton v. Barry, 328 Ill App 497, 509-511, 66 NE2d 697 (1946)). Nevertheless, we find no reason to have admitted these records here because, without contradiction, defendant testified as to his assignment and the recovery of the articles found on the street after the pursuit, and Rauhut testified as to the articles found in the Chevrolet. However, we find no prejudice to plaintiff.

Finally, we find no error in admitting into evidence the keys, lock picks, tools and ignition locks which were found on the street and in the Chevrolet. There was testimony which directly connected plaintiff with these exhibits. Also, we find no error in admitting the testimony of the Police Captains as to police regulations regarding the use of firearms in the pursuit of a fleeing felon and the use of the various defense exhibits by persons involved in burglaries.

In conclusion, a review of the records shows that plaintiff was permitted liberal direct examination and cross-examination in all vital areas. The issues were not complex, and plaintiff was given a fair trial. The evidence established that defendant was acting in the line of duty in his attempt to arrest plaintiff, whom he recognized and believed to be guilty of participation in an attempt to commit a felony. It is our opinion that the questioned evidence could not have misled or confused the jury.

For the reasons given, the judgment of the trial court is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE ENGLISH

license: Public Domain

text:
    People of the State of Illinois, Appellant, v. Ned J. Vaglica, a/k/a Ned Vaglica, Appellee.
    Gen. Nos. 52,415, 52,416. (Consolidated.)
    First District, Fourth Division.
    July 24, 1968.

      John H. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joseph Roddy, and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellant.

      No brief filed for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Defendant was indicted for burglary and unlawful possession of narcotics. Prior to trial he filed a motion to suppress certain evidence taken by the police from a bag within the general area where he was arrested. The motion was allowed, and the State has appealed.

At the hearing on the motion, defendant testified he was arrested on July 29,1965, at 7:30 a. m. He was alone on the second-floor back porch of his friend’s apartment. The porch was semienclosed, having windows and a door. He was attempting to attract his friend’s attention by knocking on the back door to the apartment. The arrest was made without a warrant. Incident to the arrest, defendant was searched and nothing incriminating was found.

On cross-examination, defendant was asked whether, at the time he was arrested, he had a shopping bag with him. He answered in the negative and also denied grabbing for a shopping bag in the presence of the police.

The State’s only witness was Donald R. Lohse, the arresting officer. He testified he went to the rear of the apartment in response to a complaint that an intoxicated man was climbing through a window from the rear porch on the second story. When he arrived, he parked his squad car in the alley and approached through the yard. He saw a man banging on the door and yelling for somebody. It took Lohse about two minutes to get to the second-floor porch from the alley, at which time defendant was seen to be part way through the window, leaning inside and yelling the name “Tony.” Lohse promptly arrested defendant and found certain property “in his possession” which he said the State intends to introduce into evidence at defendant’s trial. This property was not seized from defendant’s person, but was observed by the officer in a shopping bag on the floor of the porch.

Lohse also testified that the apartment did not belong to defendant, that the porch was “public,” and that defendant was never charged with committing an offense at the apartment. (He was indicted for burglary of a drugstore and for possession of narcotics — the contents of the shopping bag — which were the proceeds of such burglary.)

Although we have not been assisted by the filing of any brief on behalf of the appellee, we find at the outset that Officer Lohse’s characterization of the porch as “public” is manifestly incorrect. The prohibition against unreasonable searches and seizures applies to persons, houses, papers and effects, but open fields, pastures, woods and similar places are not protected. Hester v. United States, 265 US 57, 59. While this means that a mere trespass onto a person’s land is not in itself a basis for excluding evidence found thereby, it does not follow that all out-of-door searches not directed to persons or vehicles are lawful. Traditionally, courts have held that the curtilage, whether fenced or open, is an area protected from unreasonable searches. The porch in question, being within the curtilage, will therefore be considered as within the zone of protection.

Prior to People v. De Filippis, 34 Ill2d 129, 214 NE2d 897 (Jan 1966), this case would have been disposed of on the basis of defendant’s lack of standing to seek suppression of evidence unlawfully obtained in violation of another person’s rights. See Goldstein v. United States, 316 US 114; People v. Perry, 1 Ill2d 482, 116 NE2d 360. The De Filippis decision, however, following Jones v. United States, 362 US 257, held that:

. . . the possession on the basis of which defendants’ convictions could be obtained and enhanced was sufficient to give each of them (defendants) standing to move for the suppression of the evidence alleged to have been unlawfully seized. (P137.)

Hence, we are constrained to ignore the fact that this defendant claimed no interest in the premises where the property was found and specifically denied that the shopping bag belonged to him or was in his possession. Accordingly, defendant will be considered as having standing to make the instant motion to suppress.

Returning, therefore, to the curtilage concept, we find it helpful to defendant but not determinative. If an officer enters premises on legitimate business, he is guilty of no impropriety in allowing his “eyes to wander.” Ellison v. United States, 206 F2d 476. Property discovered by a policeman lawfully present for the purpose of making an arrest, or for some other lawful purpose, is not protected against use at trial. E. g., People v. Barbee, 35 Ill2d 407, 220 NE2d 401 (police in a garage hoping to arrest the defendant, saw a stolen car under a tarpaulin); People v. Sprovieri, 95 Ill App2d 10, 238 NE 2d 115 (police in a garage hoping to arrest defendant, saw a murder weapon); Ellison v. United States, supra (police on a porch hoping to question defendant, observed fruits of a burglary on the ground); United States v. Young, 322 F2d 443 (police entering premises to arrest the defendant, saw illicit whiskey-making equipment); Polk v. United States, 314 F2d 837 (police on an outside stairway, observed actions of the defendant on roof top).

We believe that this case could be disposed of on the ground that there was no search at all, since the shopping bag was in open view and there was no “prying into hidden places for that which is concealed.” People v. Davis, 33 Ill2d 134, 138, 210 NE2d 530; People v. Mc-Cracken, 30 Ill2d 425, 429, 197 NE2d 35. We shall nevertheless consider other questions which have presented themselves to us.

In the case on appeal, defendant was arrested as stated above. The arrest was lawful if Lohse had reasonable grounds to believe that defendant was committing or had committed an offense. Ill Rev Stats (1965), c 38, § 107-2. Lohse had received a complaint that an intoxicated man was trying to enter the apartment through a rear window. This complaint was corroborated when he saw defendant near the window. And by the time Lohse arrived on the porch, defendant was leaning inside the window. We hold that, under these circumstances, the officer did have reasonable grounds to believe defendant was committing an offense, and, thus, it follows that the arrest was lawful. As we said in People v. Sprovieri, supra:

The legality of the officers’ actions should not be assessed on the basis of fine-spun theories applied through hindsight, but, rather, in the light of the factual and practical considerations of everyday life upon which reasonable and prudent men act. People v. Davis, 34 Ill2d 38. Nor are we concerned with whether or not there was then sufficient evidence to convict the person arrested. E. g., People v. Jones, 31 Ill2d 240.

Since the arrest was lawful, the search incident thereto was not shown to be unreasonable. There is no evidence that the search extended beyond the immediate area of the porch. In fact, the contrary is clearly infer-able, although such inference is unnecessary, since, on a motion to suppress, defendant bears the burden of proof. Ill Rev Stats (1967), c 38, § 114-12 (b).

We also believe that the search (if it be considered that there was one in this case) and the seizure of the shopping bag were not unreasonable, even if they were not deemed dependent upon the existence of a lawful arrest. In re Boykin, 39 Ill2d 617, 237 NE2d 460, 462.

The seizure of the property in question, not having been shown to be unreasonable, was therefore lawful, and the order appealed from is reversed. The cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

MCCORMICK, P. J. and DRUCKER, J., concur.

       Ill Rev Stats (1967), c 38, § 114-12.
      (a) A defendant aggrieved by an unlawful search and seizure may move the court for the return of property and to suppress as evidence anything so obtained on the ground that:
      (1) The search and seizure without a warrant was illegal;
      (b) . . . The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were unlawful shall be on the defendant.

       Supreme Court Rule 604(a); Ill Rev Stats (1967), c 110A, § 604(a). See, also, People v. Zeravich, 30 Ill2d 275, 195 NE2d 612 on the State’s right to appeal.

       Ill Rev Stats (1965), e 38, § 108-1:
      Search Without Warrant. When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of:
      (d) Discovering any instruments, articles, or things which may have been used in the commission of, or which may constitute evidence of, an offense.


author: MR. PRESIDING JUSTICE MCCORMICK

text:
    People of the State of Illinois ex rel. John J. Stamos, State’s Attorney of Cook County, Plaintiff-Appellee, v. 1965 Chevrolet Chevy II, Serial No. 113355N152337 (Fletcher Galloway and Edna Galloway), Defendant-Appellant.
    Gen. No. 52,421.
    First District, Fourth Division.
    July 31, 1968.

      Lucas T. Clarkston, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, and James R. Burgess, Jr., Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE MCCORMICK

delivered the opinion of the court.

This appeal is taken from a judgment entered by the Circuit Court of Cook County on March 17, 1967, finding that a 1965 Chevrolet was used in the commission of a criminal offense and was lawfully seized by police officers in the City of Chicago, and that the said Chevrolet was adjudged forfeited. A complaint had been filed which set out the following:

The plaintiff, by JOHN J. STAMOS, State’s Attorney of Cook County, pursuant to Criminal Code of 1961 (as amended), Chapter 38, Section 36-1, 2(a), relates:

(1) That on or about January 13, 1967 police officers of the CITY OF CHICAGO having reasonable grounds to believe that the vehicle identified as: 1965 CHEVROLET, CHEVY II, Serial No. 113355N152337, while in possession and control of one FLETCHER GALLOWAY, was being used in the commission of an offense prohibited by Criminal Code of 1961 (as amended) Chapter 38, Section 28-la8 (Gambling) did seize such vehicle and delivered it forthwith to the Sheriff who gave notice to JOHN J. STAMOS, State’s Attorney, and to the following named persons whose right, title, or interest was of record in the office of the Secretary of State:

Fletcher Galloway, 7139 S. Rhodes Avenue, Chicago, Illinois 60619

Edna Galloway, 7139 S. Rhodes Avenue, Chicago, Illinois 60619

General Motors Acceptance Corp., 10046 S. Western Ave., Chicago, Ill. 60643.

all pursuant to the statutes made and provided.

(3) That such hereinbefore identified vehicle was used in the commission of a criminal offense either by the owner thereof or with his knowledge or consent by a person in possession and control of vehicle.

The plaintiff prayed that the vehicle be declared forfeited and sold at public auction; that all rights, interest and title of each of the parties claiming an interest in the vehicle be terminated.

With leave of the court the defendants, Fletcher and Edna Galloway, filed an answer in which they admitted that they were the owners of the vehicle in question but denied that on January 13, 1967, or at any other time, police officers of the City of Chicago had any reasonable grounds for believing that the automobile was being used in the commission of gambling in violation of section 28-1 (a) (8), chapter 38 of the Criminal Code of 1961, or any other offense against the laws of the State of Illinois.

Fletcher and Edna Galloway (the parties in whose behalf the instant appeal was taken) then filed a motion to dismiss the above-entitled action for the reason that the cause of action stated in the complaint was barred by a prior finding and judgment of the Circuit Court, and in support of their motion filed suggestions in which they set out that on January 13, 1967, the case of People of the State of Illinois v. Fletcher Galloway was heard in a preliminary hearing before a judge of the court, at which hearing the court found that the evidence presented before the court was “policy result tickets and not records of bets and not within the prohibition of Chapter 38, Section 28-1 (a-8) of the Criminal Code of 1961”; that the court, after hearing evidence, held that there was not sufficient evidence presented to hold defendant Fletcher Galloway to the Grand Jury. Subsequently, on March 17, 1967, the instant complaint was tried before a judge of , the court, and the motion to dismiss was denied.

The first contention made in this court by the defendant is that the complaint was insufficient. Section 36-1, chapter 38, Ill Rev Stats 1961, provides:

Any vessel, vehicle or aircraft used in the commission of an offense prohibited by Section 9-1, 10-2, 18-2, 19-1, 19-2, 20-1, 20-2 or 28-1 of this Code as heretofore or hereafter amended, . . . may be seized and delivered forthwith to the sheriff of the county of seizure.

Section 28-1 of the above statute provides:

(a) A person commits gambling when he:

(8) Sets up or promotes any policy game or sells, offers to sell or knowingly possesses or transfers any policy ticket, or other similar device; . . .

The plaintiff argues that the complaint fails to set out the nature and elements of the offense and that it fails to set out the fact that the vehicle was used in the commission of a prohibited offense. However, paragraph 3 of the complaint specifically sets out that the vehicle was used in the commission of a criminal offense and that it was in violation of section 28-1 (a) (8), gambling.

It has been held that pleadings shall contain a plain and concise statement of the pleader’s cause of action and are to be liberally construed. Burr v. State Bank of St. Charles, 344 Ill App 332, 100 NE2d 773; c 110, §§ 33, 42, Ill Rev Stats 1965.

The case before us is civil in form, although criminal in nature, and it has been held that the application of provisions of the Civil Practice Act is proper. Village of Maywood v. Houston, 10 Ill2d 117, 139 NE2d 233. From the answer filed by the defendants, there is no question that they understood the charges which were made against them in the complaint. The complaint was sufficient.

The defendants further argue that the instant action was barred by the prior action in which defendant Fletcher Galloway was discharged. However, we must consider that the ruling in the prior finding, refusing to hold defendants to the Grand Jury, is not a final order, is nonappealable, and does not in any manner affect or determine any subsequent proceeding. People v. Jones, 9 Ill2d 481 at 482, 138 NE2d 522; People v. Rinks, 80 Ill App2d 152 at 158, 224 NE2d 29; and People v. Bonner, 37 Ill2d 553 at 559, 229 NE2d 527. The cases cited by defendants in support of this contention are not applicable. The court properly denied the motion to dismiss.

Police Officer Daniel Nagle testified that on January 13, 1967, he arrested defendant Fletcher Galloway for not having a turn signal and traveling too fast for conditions ; that when he asked the defendant what he did for a living he said he was a policy runner; that he found policy slips on the seat of the car, and arrested the defendant. Officer Nagle stated that half the slips were on the seat and half were in the defendant’s coat pocket; that the slips had information on them showing “results of a drawing in a Room Board policy board.” The policy slips were admitted in evidence over the objection of the defendant. On cross-examination Officer Nagle stated that he assumed the slips of paper were policy slips; that he had never heard them referred to as policy tickets and did not know what a policy ticket was.

The plaintiff then rested its case in chief. Counsel for defendant moved for a finding in favor of the defendant, which motion was overruled, and counsel for defendant then moved that the case be continued until Friday, March 17, so that he could bring in additional evidence. The court said:

“I want to complete the case when it should be completed. In fact, I have the right to say I am not going to give you any additional time. I asked you this morning if you were ready and you insisted on a trial and I gave it to you. But, I’ll give you additional time with the provision that if the State needs any additional evidence or have to recall the officer, it will be continued again at that date.”

The court then set the case for Friday, March 17, at 2:00 p. m. On that date counsel for defendant rested without putting in any. evidence. Counsel for plaintiff asked to introduce additional evidence. There was some discussion and argument about whether the stipulation was that broad, and the court held (and we think properly) that it was.

Thereupon the plaintiff called Allen Watson as a witness, who testified that he had been employed by the Chicago Police Department for five and a half years, and was assigned to the gambling unit; that his experience had been in policy operations. He identified a box as a keg or pill box which he said was used in pulling winning numbers in policy operations. He stated that the keg was spun and a chosen player pulled numbers from the keg; that the numbers were in rubber cylinders called pills; that the number of pills in a keg might vary from 26 to 78 at a time. The witness further testified that plaintiff’s Exhibit 1, which was one of the slips taken from the defendant, was a policy ticket without which it is not possible to have a policy operation because it shows the printed results of the winning numbers, and that any person who holds a receipt of a bet placed can look at the bet and at the ticket to see if he has won. He stated that plaintiff’s Exhibit 1, the policy ticket found in defendant’s car, showed the result of a drawing; that if a person had only the tickets in his possession he could not be said to be a part of a policy operation. The officer was then asked:

“Based on your experience in policy operations, an individual who admitted to you that he was a policy runner and if he had that number of policy slips in his possession, a policy runner with that number of slips in his possession, is it possible he would be promoting a policy game ?”

The answer was, “He would be said to, yes.” The witness further testified that the slip in question represents a policy ticket and is referred to here as a result slip. He did not know that such papers are referred to as policy tickets.

When the testimony of the officer is considered in full, it would clearly indicate that the slips found in the possession of defendant Fletcher Galloway and introduced in evidence were an essential part of a policy operation, and “would be promoting a policy game.” Also, the statute provides that a person commits gambling when he “knowingly possesses or transfers any policy ticket, or other similar device.” Whether or not we call the papers in question “policy tickets” they are certainly a “similar device” under the evidence adduced, and the State proved its case by a preponderance of evidence.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fredeberto A. Melero, Defendant-Appellant.
    Gen. No. 52,517.
    First District, First Division.
    September 16, 1968.

      Joseph B. Gilbert, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Defendant appeals from a nonjury conviction of driving while under the influence of intoxicating liquor, in violation of section 47 of the Uniform Act Regulating Traffic (Ill Rev Stats 1959, c 951/2, 144). He was fined $100 and costs. On appeal, defendant contends that he was not given a fair trial, and that he was not proved guilty beyond a reasonable doubt.

On April 10,1967, at about 2:45 a. m., defendant, while driving an automobile in Chicago, was stopped for speeding. After some questioning and observance of defendant by the arresting police officer, the drunken driving charge followed.

At the trial, the police officer testified that he saw defendant pass up three cars, and he clocked defendant’s speed at 40 miles per hour. After he stopped defendant, he noticed a strong odor of alcohol coming from defendant. On questioning, defendant stated he was going “nowhere” and admitted that he had had several beers. The officer observed that defendant’s eyes were bloodshot, his face flushed, his clothes disorderly, he was combative, he was crying, and later on he was sorry. Defendant was staggering on walking, he was faltering, and on the street and in the station he was in a falling condition. He walked limplike and mumbled.

The officer further testified that during his 21 years of service, he made thousands of arrests of people under the influence of alcohol, and in his opinion, defendant was under the influence of alcohol and unfit to drive an automobile.

On cross-examination, the officer stated that his opinion that defendant was unfit to drive was based upon the fact that he drove to the left of the center of 18th Street, where sewers were being installed. The officer did not understand Spanish, and defendant’s English was not too good. He followed defendant a sufficient distance to observe that defendant was “driving badly” and over the speed limit.

Defendant testified that he lived with his father and mother and was working. He had a couple of beers at 19th and Ashland. He answered some questions in English and some in Spanish. In response to a question by his attorney, “Did you drive fast? Speak in English,” he answered, “thirty miles an hour,” and when asked, “Do you think you were drunk?”, he responded, “No.”

Considered first is defendant’s contention that he did not have a fair trial because he “did not understandingly and knowingly waive his right to a jury trial,” and because “the trial proceeded when it should have been obvious to the Court that the defendant could not proceed without an interpreter.”

The record shows that defendant was represented at all stages of the trial by an attorney, Joseph B. Gilbert. In response to the question by the clerk, “Are you ready for trial?”, Mr. Gilbert said, “We might have a little difficulty. My client does not speak English too well.” The Court: “He’ll have to do the best he can. Does he want time to bring an interpreter in here? Could he go to trial without an interpreter?” Mr. Gilbert: “He will try to do it. He speaks Spanish.” The Court: “Do you want me to hear the case or do you want a jury trial?” Mr. Gilbert: “Waive the jury, Your Honor.” The Court: “State ready?” Mr. Hackett: “The State is ready,” and the trial proceeded.

From the foregoing, defendant argues that no question of any kind was directed to him as to his understanding of his right to a jury trial, and that this was probably because the trial court felt that the defendant, because of his inability to speak English, would not understand. Defendant further argues that it was error to proceed without an interpreter because the court was made aware of the language handicap, even though no formal request was made by the defendant.

We think the record demonstrates that defendant was sufficiently conversant with the English language to understand and make responses in English, so as not to require an interpreter in this case. Defendant used English understandingly a number of times in testifying, both on direct and cross-examination, and in his initial conversation with the police officer at the time of his arrest.

As to the jury waiver, we agree that the trial court has the duty to see that an accused person’s election to waive a jury trial is not only expressly but also understandingly made, and the performance of that duty cannot be perfunctorily discharged. If the jury waiver here was not understandingly made, this record does not show it. We are not persuaded that defendant did not understand what was happening. By permitting his attorney, in his presence and without objection on his part, to waive his right to a jury trial, defendant must be held to have knowingly acquiesced in that action. Also, the trial court was entitled to rely on the professional responsibility of defendant’s attorney that when he informed the court that his client waived a jury, it was knowingly and understandingly consented to by his client. Defendant is not permitted to complain of an alleged error which was invited by his behavior and that of his attorney. People v. King, 30 Ill App2d 264, 268, 174 NE2d 213 (1961).

Considered next is defendant’s contention that he was not proved guilty beyond a reasonable doubt. In finding defendant guilty of “driving under the influence beyond a reasonable doubt,” the court remarked, “The odor of alcohol is strong — the balance is wobbling and the walking is staggering, turning is falling, and I won’t even talk about the speech at this time. ... If there was any doubt in my mind at all — I’d find him not guilty, but to me there is no doubt and that is why I found him guilty.”

We conclude that defendant received a fair trial. Defendant’s alleged inability to understand and speak English does not support his contention that the conviction should be reversed. Where the guilt or innocence of a defendant depends upon the credibility of conflicting testimony, the finding of the trial court will not be disturbed. (People v. Greenberg, 79 Ill App2d 288, 293, 224 NE2d 577 (1967).) The State’s evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt, and the judgment is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


text:
    Patricia Frees (Engel), Plaintiff-Appellee, v. George Frees, Defendant-Appellant.
    Gen. No. 52,519.
    First District, First Division.
    July 22, 1968.
    Rehearing denied September 17,1968.

      Walter C. Wellman, of Lyons, for appellant.
    Desort and Krantz, Edward G. Krantz, Daniel A. Costigan and James B. Martin, of Chicago, for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a post-divorce decree proceeding involving the custody of two minor children. The decree entered August 17, 1962, awarded the permanent custody of Cynthia, then eight, and Terrance, then seven, to the plaintiff, their mother. The defendant, George Frees, their father, was given custody of the two children for one month during the summer vacation periods. He was ordered to pay for the care and support of the children. Defendant appeals from an order which denied his petition for permanent custody.

Defendant’s petition, filed on August 30, 1965, alleged that plaintiff had failed and neglected to procure much-needed orthodontic treatments for Cynthia and had failed to secure proper medical attention for Terrance, who had had serious bowel trouble for some time.

On September 15, 1965, and after a hearing on defendant’s petition, Judge Fred W. Slater entered an order that the divorce decree be modified “to provide that the defendant, George Frees, have the sole care, control, custody and education of the minor children of the parties until one week after the close of school in 1966 and that medical reports and dental reports be filed with the court at that time and that plaintiff and defendant have temporary custody on alternate holidays, defendant to have such custody beginning with the Thanksgiving holidays.” It was further ordered “that this cause be and it is hereby continued to June 23, 1966, . . . without further notice.” Judge Slater died on August 14,1966.

On June 13, 1967, and after a number of continuances, a hearing was had before Judge Norman N. Eiger on defendant’s petition for permanent custody. Counsel for plaintiff informed the court that the order of September 15, 1965, by Judge Slater was a temporary order, and that temporary custody was given to defendant for the purpose of securing orthodontic treatments and medical attention for the children, and that the burden was on defendant to show that plaintiff was an unfit mother. Thereupon, counsel for defendant sought to introduce into evidence a transcript of the hearing before Judge Slater, which resulted in his order of September 15, 1965. Judge Eiger rejected the offer and then proceeded with the hearing of defendant’s petition.

Defendant, George Frees, testified that Cynthia would be fourteen in November (1967) and Terrance would be thirteen in August. He stated that he had made periodic trips to Florida, and that Terrance was suffering from a complete lack of care and pinworms were imbedded in his bowels. He further stated that a tooth was growing in the center of Cynthia’s mouth, and it was deforming her. In February, 1965, he saw the children coming home from school, and “Terry” had a hole in the toe of his shoe the size of a half dollar and the toe was infected. He had long hair and was shabbily dressed. Defendant had been sending support for the children during this period. He made arrangements for a Florida orthodontist in 1965, and he offered to pay all bills, but the work was not done. He saw his children in Chicago in 1965, and at that time no orthodontic treatment had been given to his daughter. He took his daughter to an orthodontist. She is still being treated and wears braces.

Defendant further testified that he had remarried and lived in Lake Forest. His home had four bedrooms. Both children were attending school regularly and doing very well. His present wife had taken care of the children for the past two years and had indicated she was willing to continue. She had endeavored to correct Terrance’s stuttering and bowel problem and had guided and helped Cynthia physically and mentally. School records were introduced in evidence.

Dorothy Frees testified that she had married defendant, George Frees, in September, 1963. She had been a school teacher and had a daughter of her own who would be eleven in July (1967). In 1963 Terrance had a serious bowel condition, and she took him to a doctor who prescribed “daily suppositories.” The condition was now ended. She had the children for about two years, and the only time it was necessary to secure treatment for Terrance since they had custody was one time when he visited his mother in Florida. She took Cynthia to the orthodontist for treatments. She was willing to take care of the children if her husband was awarded permanent custody.

Plaintiff, Patricia (Frees) Engel, was called to testify under section 60 of the Civil Practice Act. She stated Terrance had been hospitalized for rectal problems while the divorce was pending. The doctor at that time prescribed suppositories and said that Terrance would outgrow the problem in a year or two. Terrance still had bowel trouble, and she took him to a doctor twice a year for periodic checkups. She did not realize her daughter had crooked teeth but thought she needed fillings. She took her to a dentist in Florida, and she paid the dentist. Both children had physicals in school. In November, 1964, defendant authorized her to take Cynthia to an orthodontist. No orthodontic work was done from November, 1964, until June, 1965, when she sent the children to their father.

Plaintiff, Mrs. Engel, testified that she owned a home in Pinellas Park, Florida. It had three bedrooms and two baths, and she resided there with her present husband since 1962. She was not employed, and her husband supported her very well. She had no children with her present husband, who had a married son.

Judge Eiger interviewed each child separately in his chambers. He stated to the parties that Cynthia told him she was getting along very well with her father and stepmother; also that she was getting along very well with her mother and stepfather. She liked living in Florida but had a preference to live in Lake Forest. It was the impression of Judge Eiger that she was a well-adjusted child and could easily adjust to either or both places. He stated that Terrance appeared to be a rather happy-go-lucky boy. He seemed to be well adjusted and enjoyed being with his father and stepmother and enjoyed being with his mother and stepfather. He didn’t want to make a choice of parents.

After reviewing the foregoing testimony and after extended discussion with counsel for both sides, Judge Eiger on September 11, 1967, entered an order nunc pro tunc as of June 13, 1967, which confirmed the decree award to plaintiff of the custody of the two minor children and increased defendant’s visitation rights to two months during the summer school vacation. Defendant was ordered to deliver the children to plaintiff on August 1, 1967. This is the order from which defendant appeals.

Initially, we consider defendant’s contention that “the court erred in refusing to admit a transcript of the hearing before the late Judge Fred W. Slater held on September 15,1965.” In support defendant cites Dixon v. Smith-Wallace Shoe Co., 283 Ill 234, 119 NE 265 (1918), where it is said (p 240):

“The record rather convinces us that the proof absent from the record, or not properly in the record, as held by the Appellate Court, can certainly be produced on another trial by the introduction either of the original transcript of the record of the Missouri circuit court copied into said bill of exceptions or by the production of another duly authenticated copy of such record.”

In a custody hearing the paramount issue is the welfare of the children, and we think a trial court should exercise broad discretion in admitting evidence which bears on the issue or which may assist the court in arriving at a custody decision. (Szczawinski v. Szczawinski, 37 Ill App2d 350, 353, 185 NE2d 375 (1962).) Therefore, if the trial court had considered that the transcript of the hearing of September 15, 1965, was of value in arriving at the instant custody decision, we think it would have been correct for the court to have admitted the transcript in evidence if properly authenticated, but we find no error in its rejection.

Considered next is defendant’s contention that “the burden was on the plaintiff to prove a change of circumstances existed since the hearing of September 15, 1965.” Defendant argues that the order of September 15, 1965, was a permanent order for custody, and since the order gave custody of the children to the father, “it was incumbent upon the mother to prove a change of circumstances existed since the hearing of September 15, 1965, warranting return of the children to her. No such evidence was introduced by the mother.”

After considering this record, we think the order of Septemder 15, 1965, was temporary in nature, and a permanent change of custody was dependent upon a further hearing to be held on the original continued date of June 23, 1966. It was not the burden of plaintiff, the mother, to prove a change of circumstances warranting the return of the children to her.

Finally, defendant contends that “the welfare and best interests of the children warranted their custody remaining with the defendant.” On this point defendant argues that the evidence at both hearings definitely showed that the mother grossly neglected both children. She had done “absolutely nothing to secure orthodontic treatment for this girl,” and the bowel condition of Terrance had not been remedied, and “a mother that will permit a child to suffer such a condition day after day certainly is not fit to have the custody of her son.”

The guidelines to be used in a post-decree hearing to modify child custody provisions of a decree have been repeatedly stated. The guiding star is and must be, at all times, the best interests of the child. The divorce decree granting custody is res ad judicata as to the facts which existed at the time of divorce but may be changed from time to time as the best interests of the children demand. New conditions must arise to warrant a custody change. It is usual in custody cases, due to the tender years of the child and in consideration of its best interests, to entrust the care and custody to the mother, if a fit person. Each case stands on its own facts. Every presumption is indulged in favor of a divorce decree. If its provisions are to be changed, the burden of proof is on the party so moving to show why it should be done. 37 Ill App2d 350,185 NE2d 375.

Our examination of this record shows that Judge Eiger heard and saw the principals and interviewed the children. He considered at length the evidence offered on the issue of whether new and changed conditions were shown, which required modification of the custody provisions of the divorce decree. He decided that a permanent change of custody was not warranted, and he increased defendant’s visitation rights. An opposite conclusion to his decision is not clearly indicated. Therefore, we conclude that the decision of the trial court was not against the manifest weight of the evidence, and it was a proper use of the broad discretion vested in the trial court in a custody proceeding.

For the reasons stated, the change of custody order appealed from is affirmed.

Affirmed.

BURMAN, P. J., and ADESKO, J., concur.


author: GOLDENHERSH, J.

text:
    Donald J. Baran, Plaintiff-Appellee, v. City of Chicago Heights, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,546.
    First District.
    August 5, 1968.
    Rehearing denied September 30,1968.

      Warren R. Ross and James East, of Chicago (Warren R. Ross and James East, of counsel), for appellant.
    Harold A. Liebenson and Irwin M. Berkley, of Chicago (Harold A. Liebenson, Irwin M. Berkley, Harry J. Director, and Michael Weininger, of counsel), for appellee.
   GOLDENHERSH, J.

Defendant, City of Chicago Heights, appeals from the judgment of the Circuit Court of Cook County entered upon a jury verdict in the amount of $40,000.

As grounds for reversal defendant argues that plaintiff was guilty of contributory negligence as a matter of law, plaintiff failed to prove that defendant was guilty of any negligence, the trial court erred in its rulings on evidentiary matters and in refusing to give four instructions tendered by defendant.

The evidence shows that on December 8, 1960, the date of the occurrence in question, Ashland Avenue extended north and south in the defendant City of Chicago Heights. It forms a “T” intersection with Hickory Street, an east-west street. There is no street or roadway to the south of the “T” intersection. Immediately to the south of Hickory Street a vacant lot extends for a distance of approximately 150 feet to a railroad embankment, 12 to 15 feet high, which parallels Hickory Street. There is a tree in the vacant lot, located approximately 20 to 30 feet south of the south edge of Hickory Street, and about 5 feet east of the center of Ashland Avenue. A street light located at the northeast corner of the “T” intersection is mounted on a standard approximately 25 feet high, on an “arm” which extends approximately 8 feet from the standard.

Shortly after midnight plaintiff was driving south on Ashland Avenue. The weather was cold and the streets were dry. He had not previously been any further south on Ashland than 14th Street, 4 blocks north of Hickory Street. He was driving approximately 25 miles per hour and as he approached Hickory Street he had his city driving lights on.

Plaintiff testified that as his car entered the intersection, the light from his headlights “melted” into the glare caused by the street lamp and he was unable to see that the road ended there. His automobile continued onto the vacant lot, and when he tried to swerve, he struck the tree.

There were no signs, barricades or reflectors to indicate that Ashland Avenue terminated at that point.

The parties stipulated that a proposal to erect a lamppost on the northeast comer of Hickory and Ashland was adopted by the City Council on December 14, 1959. An exhibit offered and admitted into evidence shows that defendant ordered the installation by Commonwealth Edison Company of a street light to be located at the northeast corner of Ashland and Hickory. The specifications call for a Light Unit Lumen Rating of 6,000, mast arm installation with prismatic refractor and multiple-type connection.

In his complaint as amended, plaintiff charges inter alia, that defendant was negligent in that it created a dangerous condition by improperly lighting the intersection and failing to erect signs or reflectors to warn motorists of the condition.

Defendant contends that plaintiff failed to prove that it was guilty of any negligence, and relying upon Healy v. City of Chicago, 131 Ill App 183, Owens v. City of Chicago, 162 Ill App 196, and City of Chicago v. Seben, 165 Ill 371, 46 NE 244, argues that it cannot be held liable because the street light was selected, located and installed, with reasonable care, pursuant to a plan adopted and authorized by defendant acting in its governmental capacity, and no liability can result from the exercise of such governmental function unless the plan itself is shown to be grossly negligent.

We have reviewed the authorities cited by the parties and conclude that the word “plan,” as used in the cases, means a scheme or program of action, such as the decision to install a street light at a designated intersection. To sustain defendant’s contention would require that “plan” be defined to mean the specifications for the project, and this, in our opinion, is not consistent with the decisions of our courts of review. The error of such a construction is demonstrated in the following statement of Mr. Justice Adams in his dissent in Healy v. City of Chicago, found at page 192, “The law in this state has always been that a municipal corporation must exercise ordinary care to keep and maintain its sidewalks in a reasonably safe condition, and such being the law, it seems to me absurd that a municipal corporation may so plan and construct a sidewalk that, owing to its construction, it cannot be maintained in a reasonably safe condition; that if a person be injured by reason of a defective and unsafe sidewalk, and sues the municipality, it will be a sufficient answer to the suit to prove that it was so planned and constructed by the municipality. Such is not the law of this state.”

The applicable rule is stated in Johnston v. City of East Moline, 405 Ill 460 wherein at page 466, 91 NE2d 401, the Supreme Court said, “A municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements, but as soon as it begins to carry out that plan it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner. (Citing cases.)” That this rule applies to the lighting of a city’s streets is clearly demonstrated by the Supreme Court’s statement, also found at page 466, “As early as City of Chicago v. Powers, 42 Ill 169, the principle was recognized that where a municipality undertakes to protect a street or bridge by lights it is liable for negligence if it does it in an insufficient manner.”

Both parties offered testimony concerning the lighting of the intersection. Defendant called a police officer and a member of defendant’s City Council, both of whom lived in the vicinity of the scene. They testified with respect to the area lighted by the street lamp and that the intersection and railroad embankment were clearly visible.

Plaintiff called an expert witness and defendant contends that the trial court erred in denying its request for a voir dire examination of the witness to determine his qualifications, and erred further in finding him qualified, and in admitting his expert testimony.

Neither party has cited any authority which bears directly on defendant’s contention that it was entitled to a voir dire examination of the witness.

The Supreme Court has on numerous occasions stated the rules which govern the determination of the qualifications of an expert, and the admissibility of expert evidence.

In Mahlstedt v. Ideal Lighting Co., 271 Ill 154, 110 NE 795, the Supreme Court at page 171, said: “Expert evidence is admissible when the witnesses offered as experts have peculiar knowledge or experience not common to the world, which renders their opinions founded on such knowledge or experience an aid to the court or jury in determining the question at issue. Expert testimony is proper when the subject matter of the inquiry is of such a character that only persons of skill or experience in it are capable of forming a correct judgment as to any fact connected therewith.”

As to the qualifications of an expert, in Bonato v. Peabody Coal Co., 248 Ill 422, at page 426, 94 NE 69, the court said: “Whether a witness is competent to give an expert opinion is a question of fact for the trial judge and can only be reviewed when there has been a clear abuse of discretion.” In People v. Jennings, 252 Ill 534, at page 550, 96 NE 1077, the court said: “The question of the qualification of an expert rests largely in the discretion of the trial court. (Bonato v. Peabody Coal Co., 248 Ill 422, and cases cited.) There can be no arbitrary or fixed test but necessarily only a relative one, dependent somewhat on the subject and the particular witness.”

In Miller v. Pillsbury Co., 33 Ill2d 514, at page 516, 211 NE 733, the Supreme Court said: “While there has been a reluctance to permit expert testimony on many matters on the basis that it invades the province of the jury, confuses the issues and usurps the function of the jury, the trend is to permit expert testimony in matters which are complicated and outside the knowledge or understanding of the average person, and even as to matters of common knowledge and understanding where difficult of comprehension and explanation. The jury still may accept or reject such testimony.”

The expert testified that he held the degree of Bachelor of Science in Electrical Engineering, with a major in Illuminating Engineering, had worked for ten years with a firm of architects and engineers with whom he designed both exterior and interior illumination, was now practicing as an electrical and illuminating engineer, was the chief electrical engineer for the United States Federal Office Building in Chicago, and the consulting illuminating engineer for a portion of the South Outer Drive in Chicago, and a number of large apartment and industrial buildings.

Reviewing the above stated qualifications in the light of the rules enunciated by the Supreme Court, we hold that the trial court did not abuse its discretion in denying defendant’s request for a voir dire examination of the witness, or in permitting him to testify as an expert.

Although defendant’s only claim of error with respect to this witness is that he was not shown to be qualified, we briefly review his testimony. He testified that he is a member of the Illuminating Engineering Society which adopts and sets standards for the designing of various types of lighting. The society published a set of standards for highway lighting. He examined the general area and the electrical standard at the intersection and expressed the opinion that the intersection was improperly lighted, because the pole and light are in the wrong location. He described the type of lighting which was proper and explained why it should be done in that manner. The standards set by the Illuminating Engineering Society for lighting “T” intersections were offered and admitted in evidence.

The evidence is conflicting, and creates a question for the jury as to whether defendant was negligent in the manner in which it lighted the intersection. We have considered defendant’s argument based upon Locigno v. City of Chicago, 32 Ill App2d 412, 178 NE2d 124, and Resnick v. Michaels, 52 Ill App2d 107, 201 NE2d 769, that it was not required to post signs and cannot be held liable for its failure to do so. Upon the facts shown by this record, those cases are not controlling. The trial court correctly refused to direct a verdict on the issue of defendant’s negligence.

Defendant contends that plaintiff was guilty of contributory negligence as a matter of law, because the evidence shows he drove at such a rate of speed that he could not stop his automobile within the range of his vision, and continued to drive forward when his vision was obscured. The evidence presented a fact question on the issue of plaintiff’s contributory negligence, and the jury answered a special interrogatory favorably to plaintiff. Applying the rule of Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, we hold that the trial court did not err in refusing to direct a verdict.

Defendant contends that the trial court erred in refusing four instructions. The abstract does not contain any part of the conference on instructions, fails to indicate whether the tendered instructions are contained in IPX, shows neither the objections to the instructions nor the grounds on which the trial court based its rulings, and therefore, nothing is presented for review by this court.

Defendant argues that the court erred in admitting into evidence a photograph of plaintiff’s left leg which shows a healed scar extending from his buttock almost to the knee. Under Stegall v. Carlson, 6 Ill App 2d 388, 128 NE2d 352, it would have been proper to permit plaintiff to disrobe and exhibit the scar, and we hold that the photograph was admissible.

Defendant contends that the verdict is excessive. The evidence shows plaintiff suffered multiple fractures of the mandible, lost many teeth, suffers pain, and has difficulty chewing. He suffered fractures of the femur, requiring open reduction, and installation of a stainless steel plate. He was hospitalized on three occasions. He proved special damages in excess of $6,000. The courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury, and if the jury is properly instructed on the measure of damages, an appellate court should not substitute its judgment as to the sum to be awarded in a given case, for that of the jury. Smith v. Illinois Cent. R. Co., 343 Ill App 593, 99 NE2d 717; Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717; Ford v. Friel, 330 Ill App 136, 70 NE2d 626. From our examination of the evidence, we cannot say the verdict was excessive.

We find no error requiring reversal and the judgment of the Circuit Court of Cook County is, therefore, affirmed.

Judgment affirmed.

EBERSPACHER and MORAN, JJ., concur.


author: MR. PRESIDING JUSTICE BURKE

text:
    In the Matter of the Estate of William. J. Pokorney, Sr., Deceased. Marie Smejkal, Respondent, Counter-Petitioner, Appellee, v. William J. Pokorney, Jr., Administrator of the Estate of William J. Pokorney, Sr., Deceased, Petitioner, Counter-Respondent, Appellant.
    Gen. No. 52,552.
    First District, Second Division.
    September 17, 1968.

      George A. Bosomburg, of Riverside, for appellant.
    Irwin J. Minarik and Louis A. Rosenthal, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

This was a citation proceeding to establish ownership of 182 shares of stock and two savings accounts, all standing in the names of the decedent and Marie Smejkal as joint tenants. Although the citation petition filed in this cause does not appear in the record before us it appears that the action was initiated by the administrator of the decedent’s estate against Mrs. Smejkal. With her answer Mrs. Smejkal filed a counterpetition in which she named the administrator as counterrespondent and requested that she be adjudged entitled to the stock and the accounts in dispute. After a hearing, relief as prayed by the counterpetition was granted and the administrator appeals.

During his lifetime, decedent, William J. Pokorney, Sr., purchased 182 shares of American Telephone and Telegraph Company common stock which he caused to be registered with the company in his name and the name of Marie Smejkal “in joint tenancy with the right of survivorship and not as tenants in common.” The stock certificates were held by Mrs. Smejkal in her safety deposit box, together with the decedent’s Last Will and Testament. The certificates were kept in a sealed envelope which bore on its face the notation “Contents of Bill Pokorney” in Mrs. Smejkal’s handwriting. Mrs. Smejkal testified that she held the certificates in her safety deposit box because the decedent had requested her to do so. She further testified that she delivered the certificates to the attorney for the administrator, upon his demand, several days after the death of the decedent. It is undisputed that the dividend checks issued with regard to the shares of stock in question were made payable to the decedent “or” Mrs. Smejkal; that the decedent endorsed all the checks himself and retained all proceeds therefrom; that he reported all such dividends on his own federal income tax returns; and that he paid a portion of the rental on Mrs. Smejkal’s safety deposit box wherein the stock certificates and the Will were kept.

It also appears that the decedent opened savings accounts at two separate savings and loan associations in the names of himself “or” Mrs. Smejkal. Both account cards specifically recited the relationship between the parties to be that of joint tenants with right of survivor-ship. One card recited that it was the intention of the parties that upon the death of either, the survivor should be the sole beneficial owner of the funds in the account regardless of who actually provided the funds; the other card recited that it was the intention of the parties that any funds deposited into the account were a gift to the other party not making the deposit to the extent of his interest in the account. It is undisputed that all deposits and withdrawals were made by the decedent with respect to both accounts and that Mrs. Smejkal had possession of a passbook to one of the accounts.

The administrator maintains that the trial court erred in adjudging Mrs. Smejkal the owner of the shares of stock and the savings accounts since the manner in which title to personal property is held is not conclusive as to the true relationship existing between the parties; the administrator states that Mrs. Smejkal was required to offer evidence showing the intention of the decedent to make a gift to her of the property in question, which she wholly failed to do.

Title to personal property may be held in joint tenancy with right of survivorship where the appropriate language is employed at the creation of the tenancy. Ill Rev Stats 1965, c 76, par 2. A statutory right of survivorship exists, and it is therefore unnecessary to follow the principles of the common law in this regard. Frey v. Wubbena, 26 Ill2d 62, 185 NE2d 850. If the joint tenancy is created in accordance with the statutory provisions, the presumption of donative intent arises. In re Estate of Donnelly, 50 Ill App2d 36, 199 NE2d 641. The burden is upon the party attacking the joint tenancy to establish, through clear and convincing evidence, the lack of donative intent at the time of the creation of the tenancy. Murgic v. Granite City Trust & Savings Bank, 31 Ill2d 587, 202 NE2d 470.

The certificates of stock and the savings accounts all carry the necessary statutory language of survivorship from which the presumption arises that decedent intended to make a gift of the properties to Mrs. Smejkal. The burden consequently fell upon the administrator to show by clear and convincing evidence that no such intention was entertained by the decedent at the time he created the tenancies.

With respect to the joint savings accounts, no evidence was offered by the administrator in any way bearing on the intention of the decedent when he created the accounts. On the contrary, the account cards, both of which were admitted into evidence, recite that it was the intention of the parties that both share equally in whatever funds were deposited into the respective accounts. This stands uncontradicted. The administrator calls this court’s attention to a letter concerning savings accounts which was written by Mrs. Smejkal to the decedent some 14 months prior to his decease; the administrator argues that the contents of the letter indicate that the parties never intended the funds in the savings accounts to pass to Mrs. Smejkal upon the death of the decedent, and that Mrs. Smejkal always considered the funds in the accounts as belonging solely to the decedent. The trial court, however, refused to admit the letter into evidence on the grounds that its contents were too general and unclear, and that the letter failed to specifically identify the subject matter dealt with therein.

With respect to the shares of stock, the administrator maintains that Mrs. Smejkal’s own testimony shows she received no gift from the decedent. Mrs. Smejkal testified that she wrote the notation on the sealed envelope containing the stock certificates that the contents belonged to the decedent; that she was holding the shares for the decedent; and that the decedent received all dividend checks, cashed them and reported the income therefrom on his own tax return forms. We do not believe this to be such clear and convincing evidence as is required to defeat the presumption of donative intent raised by the language employed by the decedent in the creation of the tenancy. See In re Estate of Pokorney, 93 Ill App2d 174, 236 NE2d 396; Frey v. Wubbena, 26 Ill2d 62, 185 NE2d 850; In re Estate of Donnelly, 50 Ill App2d 36, 199 NE2d 641; In re Estate of Bors, 83 Ill App2d 447, 228 NE2d 127.

For these reasons the judgment is affirmed.

Judgment affirmed.

MCNAMARA and LYONS, JJ., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    Estate of Marshall Field, Deceased. Edward I. Farley and George B. Young, Executors of the Will of Marshall Field, Petitioners, v. Lynne T. Field, et al., Respondents. Appeal of Marshall Field III, Respondent-Appellant.
    Gen. No. 52,555.
    First District, First Division.
    September 16, 1968.

      Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, Cravath, Swaine & Moore, of New York City (Don H. Reuben, John E. Angle, and Michael W. Coffield, of counsel), for appellant.
    Wilson & McIlvaine, of Chicago (Clarence E. Fox and Vernon T. Squires, of counsel), for petitioners, Edward I. Farley and George B. Young, executors of the will of Marshall Field.
    Gregory A. Gelderman, of Chicago, guardian ad litem for respondents-appellees.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

On January 6, 1967, Edward I. Farley and George B. Young, Executors of the Estate of Marshall Field, deceased, filed a supplementary petition in the Probate Division of the Circuit Court of Cook County, seeking to cancel a $90,000 demand note executed by the decedent’s adult son, Marshall Field III, made payable to his father. Named as respondents by the executors, along with Marshall Field III, were Lynne T. Field, Marshall Field’s widow, Joanne Field, Marshall Field’s daughter-in-law, and the decedent’s three minor children and one minor grandchild.

In their petition, the Executors stated their belief that under the law of Illinois, the decedent had effectively made an inter vivos gift of the aforementioned note to Marshall Field III. Therefore, they requested the Court to find that the note was not part of the decedent’s estate, and accordingly they prayed that the Court authorize them to cancel the note or deliver it to Marshall Field III. Lynne T. Field filed an answer to the petition in which she neither admitted nor denied the substantive pertinent allegations contained therein and requested that an order be entered declaring the note to be a part of the decedent’s estate. A guardian ad litem appointed for the minor respondents filed an answer to the petition in which he asked for strict proof of the allegations contained in the petition and submitted the interests and the welfare of the minors to the care of the Court.

The trial judge, after a hearing in which evidence was introduced, found that the decedent had not made a valid inter vivos gift of the note because said note had not been delivered to an agent or a trustee for the donee, Marshall Field III, during the lifetime of the decedent, and therefore, the note was part of Marshall Field’s estate. The petition was dismissed with prejudice, and the judgment order further recited that “no good cause exists to delay the appeal or enforcement of this order.” An appeal was taken from the order by the executors and by Marshall Field HI. The guardian ad litem has also appeared before us.

There is no dispute as to the essential facts introduced in evidence. Marshall Field III (hereinafter referred to as respondent-appellant) is the son of the decedent, Marshall Field, and his former wife, Joanne Bass Bross. In August of 1964, the respondent-appellant, who was about to be married, contracted to purchase a home in Peter-borough, New Hampshire. Lacking adequate funds to complete the purchase he wrote his father, who was then honeymooning in Europe, and asked for a loan of $90,000. Thereafter, on August 14, 1964, the decedent cabled Edward I. Farley, a member of the board of directors of Field Enterprises, Inc., “Please loan Marshall $90,000 on a non-interest bearing demand note for purchase of land in New Hampshire. ...” Farley proceeded to wire the respondent-appellant: “Dad okayed funds for Peter-borough property. Advise where funds needed and what, if anything further, should be done from here. Am considering other financial matters in your letter. Best wishes, Edward Farley.” Edward J. Burns, an accountant for Field Enterprises, prepared the note in question, dated March 8, 1965, and after the respondent-appellant signed it, Burns deposited same in the decedent’s deposit box at the First National Bank of Chicago.

The decedent spent a long week end with his son and daughter-in-law at their new home in Peterborough in July, 1965, and visited them again that Labor Day weekend. On Sunday, September 5th, the respondent-appellant and his wife celebrated their first wedding anniversary, and on Monday, Mrs. Bross held a picnic lunch in their honor at her home in Peterborough. After lunch the decedent and Mrs. Bross talked privately and he told her that he had given the Peterborough home to the respondent-appellant and his wife as a gift for their anniversary. Mrs. Bross testified that it was common knowledge that the decedent made a gift of the home to the respondent-appellant.

Edward I. Farley, who had known the decedent for about forty years, testified that he managed with the assistance of Edward Burns and a Mr. Carroll, many of the decedent’s personal financial investment tax affairs, and that he also was the trustee on several of the trusts that the decedent had set up for his children. Farley also possessed authority to draw on the decedent’s checking accounts. Farley further testified that on August 18, 1965, he had dinner with the decedent in New York to discuss Mr. Field’s financial affairs. At that time the decedent told Farley that he wanted to cancel the note in question. After Farley informed the decedent of the gift tax consequences of cancelling the note, Mr. Field stated that he wanted to do it anyway because he wanted to make the gift of the note to the respondent-appellant and his wife. The matter was not finally resolved until September 16th, when the decedent told Farley that he had decided definitely that he wanted the note cancelled in spite of the gift tax consequences of such a decision. Immediately thereafter, Farley phoned Edward Bums and informed the latter about Mr. Field’s decision. Farley told Burns to remove the note from the decedent’s box at the bank as quickly as possible. Although both Mr. Farley and the decedent were authorized to enter the latter’s safety deposit box, only Mr. Burns ever removed anything from the box during the decedent’s lifetime. Before Burns could carry out Farley’s order, the decedent died unexpectedly on September 18th.

The respondent-appellant contends, on appeal, that the judgment of the trial court should be reversed because the decedent made a valid inter vivos gift of the note to him in that the note was delivered to Farley and Burns as agents or trustees on his behalf. The guardian ad litem contends that we should affirm the judgment because the note was never delivered to respondent-appellant, and therefore, cannot be considered to be the subject matter of a valid inter vivos gift. In this regard, he further contends that the note was never delivered to either Farley or Burns as agents or trustees for the respondent.

As we view the undisputed facts presented by the record before us, the resolution of the issues raised in this appeal depends upon whether or not the note in question was delivered by the decedent donor to Farley and Burns as agents or trustees for his son, the respondent-appellant. As the Court stated In re Estate of Meyer, 317 Ill App 96, 45 NE2d 495 at page 102:

Where delivery is made to a third person, the question whether the gift was thereby completed without actual delivery to the donee depends entirely upon whether the person to whom the property is delivered receives it as the donor’s agent or as trustee for the donee. And this is to be determined from the intention of the donor, the situation and relation of the parties, the kind and character of the property, and the things said and done in regard thereto as disclosed by the evidence.

In the case at bar, the decedent’s intention to make a gift of the house in Peterborough to his son, is clearly demonstrated by his statement to Mrs. Bross that such was his desire and by his instructions to Farley to cancel the note in question. While we agree with the guardian ad litem that intent alone in the absence of other factors required by law will not constitute a valid gift inter vivos, still the donor’s intent is a material factor in determining the role played in the instant case by Farley and Burns. Furthermore, the decedent was motivated not by considerations of business in deciding to make a gift of the Peterborough property to his son (as demonstrated by his knowledge of the negative tax implications of his decision), but rather it is clear to us that his motivation in making the gift and in attempting to cancel the note was a feeling of affection for his son. In such a case, equitable considerations lead us to attempt to carry out the donor’s intentions. Seavey v. Seavey, 30 Ill App 625.

We are satisfied from the evidence that Burns and Farley acted as agents on behalf of both the decedent and the respondent-appellant. Evidence was introduced to the effect that the respondent-appellant relied upon Burns and Farley to handle many of his financial transactions, as did his father. Indeed, the financial transactions surrounding the execution of the note were handled by Burns and Farley on behalf of both parties. Therefore, we are convinced that when the decedent instructed Farley to cancel the note he made Farley not only an agent to represent his own interests, but also an agent to represent the interests of his son. Under these circumstances, the death of Marshall Field before the note could be cancelled did not terminate the agency he had created on his son’s behalf, and therefore, Burns possessed the authority to cancel the note after the decedent’s demise. Andrews v. Votaw, 240 Ill App 311.

Furthermore, we have concluded that Messrs. Farley and Burns were made trustees by the decedent on behalf of his son for the purpose of cancelling the $90,000 unsecured note so that he would carry out his intention of making an anniversary gift of the Peterborough property; and we have further concluded that the decedent made an effective delivery of the trust res by renouncing all control over the note. The evidence disclosed that most of the decedent’s financial affairs were handled by Farley and Burns. Farley was trustee on several trusts which had been set up by the decedent. Burns alone was responsible for entering the decedent’s safety deposit box, which neither Farley nor the decedent entered during the latter’s lifetime. These facts and circumstances reveal that the relationship between the decedent and Farley and Bums was one of the highest trust, and that he relied on them to carry out his wishes regarding his personal property. It is apparent that the decedent, after his conversation with Farley, had done all that he could to see that the note would be cancelled. He had parted with ownership and control over the note. The ministerial act of actually removing the note and cancelling it was not dependent upon the decedent’s control, but rather upon the timing of Bums in going to the bank. After his conversation with Farley, the decedent had effectively parted with legal title to the note, and therefore, the note cannot properly be considered an asset of his estate.

The guardian ad litem argues, however, that since neither Bums nor Farley ever came into actual physical possession of the note prior to the decedent’s death a valid trust was not created. We cannot agree. The decedent created the trust when he directed Farley to cancel the note on behalf of his son, thereby relinquishing all control over the instrument. See In re Estate of Trapp, 269 El App 269. The validity of the trust under the circumstances here did not depend upon the two trustees coming into physical possession of the trust res. Otis v. Beckwith, 49 Ill App 121; Home for Destitute Crippled Children v. Boomer, 308 Ill App 170, 31 NE2d 312.

We are convinced that under the criteria set forth in the Meyer case, the evidence in the case at bar shows a situation where family affection actuated a donor to part with title to an obligation owed him by his son by placing said obligation in trust on his son’s behalf and by instructing a trustee (with whose performance of ministerial business functions he never interfered) to see to it that the obligation be cancelled. We hold that Marshall Field, deceased, made a valid inter vivos gift to Marshall Field III.

The judgment of the Circuit Court, County Department, Probate Division is therefore reversed with directions to cancel the note of $90,000 and deliver same to Marshall Field III.

Judgment reversed with directions.

ADESKO and MURPHY, JJ., concur.