author: MR. PRESIDING JUSTICE DRUCKER

text:
    Chicago Title & Trust Company, a Corporation, as Trustee Under Trust No. 21830, et al., Plaintiffs-Appellees, v. The Village of Wilmette, a Body Politic and Corporate, Defendant-Appellant.
    Gen. No. 50,486.
    First District, Fourth Division.
    January 7, 1966.
    Rehearing denied February 9, 1966.

      Philip R. Toomin and George H. Redding, Jr., both of Chicago, for appellant.
    Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons and John M. Daley, all of Chicago (Richard F. Babcock and Malcolm Mecartney, Jr., of counsel), for appellees.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

The defendant, The Village of Wilmette, appeals from a decree in chancery, based upon the recommendation of the Master in Chancery, declaring that its zoning ordinance is arbitrary, oppressive, prohibitory, discriminatory and confiscatory as regards plaintiffs’ property. Defendant in appealing directly to the Supreme Court urged that a substantial constitutional issue was presented and in particular that the following novel issues were involved:

“ (a) Whether despite an admitted lack of need for change, such change may be imposed by a court.
(b) Whether an owner whose property is successfully devoted to a conforming use, may join with neighboring owners differently circumstanced, in order to devote their collective properties to a common use.
(c) Whether this court [the Supreme Court] should hold this case because of its 1963 decision approving service station use on the opposite corner.”

The Supreme Court transferred the case to the Appellate Court.

Plaintiffs filed a petition with The Village of Wilmette by which they sought the rezoning of three separately owned parcels of land from an R-3 Group House classification to B-2 General Business to permit the erection and construction of a gasoline service station. Pursuant thereto a hearing was held by the Special Zoning Committee of the Village which denied plaintiffs’ request. The decision of that committee was affirmed by the Village Board after which this action was instituted. The subject property, considered as one tract, lies at the southeast corner of the intersection of Lake Avenue and Skokie Boulevard within the Village of Wilmette. It is almost a truncated triangle in shape, having a frontage of 151.16 feet on Lake Avenue, 237.36 feet on Skokie Boulevard, a southerly line of 68.75 feet and an east line of 247.43 feet. One of the corners has been rounded off where a traffic curve from Skokie Boulevard to Lake Avenue was installed. Parcel 1 is vacant and consists of the southeast corner of Skokie Boulevard and Lake Avenue; parcel 2 is also vacant and has frontages on Lake Avenue and Skokie Boulevard; parcel 3 is improved with an old frame residence which fronts on Lake Avenue and has an old frame garage, 12' 2" x 18' 1%", on the easterly side of its lot about 119 feet south of Lake Avenue. Plaintiffs propose leasing the subject parcels, which taken together consist of approximately 31,500 square feet, to the Standard Oil Company.

The block in which this property is located is itself triangular in shape with frontages on Lake Avenue, Skokie Boulevard and Hibbard Road and is zoned as an R-3 Group House district. Within that block, to the east of parcel 3, is a group house containing six dwelling units situated at a right angle to Lake Avenue so that its front faces west across parcel 3. Proceeding east there are located three old single family residences which face Lake Avenue and at the southeast corner of Lake Avenue and Hibbard Road there is a new group house consisting of four units facing Hibbard Road. South on Hibbard Road facing Hibbard is a Public Service Substation, two group houses situated at right angles to Hibbard Road, then unimproved land followed by three group houses situated on a triangular parcel formed by the crossing of Skokie Boulevard and Hibbard Road; none of these buildings fronts on Skokie Boulevard; they are either at right angles to Skokie Boulevard or face Hibbard Road. Proceeding northwesterly along the east side of Skokie, north of the last mentioned group houses, there is an old residence facing Skokie Boulevard, then “Hammond Gardens” where vegetables and nursery products are sold (a nonconforming use), then group houses siding on Skokie Boulevard. There is a community of parking and recreation facilities between the group houses on Hibbard Road and those on Skokie Boulevard which are adjacent to one another. Next is the subject property.

Approximately two blocks west of the subject property Lake Avenue crosses over the Edens Expressway at right angles, via an overpass. Cloverleafs constructed at the overpass connect Lake with the expressway and it appears that this is the only point of access to and egress from the expressway in the village. The result has been extremely heavy traffic on Lake which is building up year by year. Running northwesterly from its intersection with Lake, Skokie Boulevard also intersects Edens Expressway a quarter of a mile away at the northern village limit.

On the northwest corner of Skokie and Lake there is a large tract of land which is occupied by the Edens Plaza Shopping Center which fronts on the west side of Skokie Boulevard and the north side of Lake Avenue and has about 23 retail businesses and parking facilities for over 1,000 cars. The stores in the area operate each day except Sunday, and three nights a week. Throughout the parking area, which is the specific part of the business district diagonally across from plaintiffs’ land, there are lights which are illuminated on nights the center is open.

At the southwest corner of the intersection of Skokie Boulevard and Lake Avenue there is a triangular parcel of land which has about 180 feet of frontage on Skokie Boulevard and is improved with a gasoline service station which sells Marathon brand gasoline. Adjoining the Marathon station on the south, and extending along the west side of Skokie for about 1,500 feet, is a residential development known as Wilcrest Manor, which has been built since the development of the shopping center and the heavy traffic pattern at Lake and Skokie. The residences in this subdivision are all constructed so as to face away from Skokie Boulevard and are shielded from Skokie by a seven foot stockade fence. At the intersection of Skokie Boulevard and Wilmette Avenue, approximately one-half mile south, three of the corners are occupied by gasoline stations and the fourth is occupied by a retail drugstore.

At the northeast corner of the intersection of Skokie Boulevard and Lake Avenue there is an eight acre tract which is occupied by the Thalmann Nursery, also called the Chalet Gardens, which is in part improved with a building in which nursery products, gardening supplies and tools, gifts, pet supplies and the like are displayed and sold, has outdoor display of articles for sale, parking facilities for about 70 cars, and outdoor nurseries. To the north of the Thalmann property along the east side of Skokie Boulevard is the Skokie Valley Baptist Church. Next are some residences, all of which back up to Skokie Boulevard and front on interior streets to the east of Skokie Boulevard and have high stockade fences along Skokie Boulevard. On the easterly portion of the Thalmann property, facing the north side of Lake Avenue and across the street from a portion of the subject premises, there is a single family residence building which is also used by Thalmann as an office. Next (east) there are six single family residences, the most easterly of which is at the corner of Hibbard Road.

Evidence was introduced by both parties as to the effect on the group houses adjacent to the subject property if a service station were built thereon. Plaintiffs’ witness, Manke, testified that the group house to the east would not be adversely affected because its recreation area is to its east and there is and will be effective screening, that these are rental units and tenants are less selective than owners. Plaintiffs’ other witness, Edelberg, testified that the depreciatory effect on the town houses had already taken place when they were developed with the commercial uses and traffic patterns in the area, that the group house to the east already looks out on the Marathon gasoline station, the shopping center, the nursery and a considerable amount of traffic movement at the intersection. Defendant’s witness, Witkowsky, testified that the proposed service station would adversely affect the entire group house to the east and two units of the group house to the south. He stated that a gasoline station on the subject property would depreciate the row house to the east 20% of its present value, and the one to the south, 5 to 10%. Defendant’s witness, Farr, testified that the entire building to the east and three units in the building to the south of the subject property would be adversely affected, with a total depreciation of 15%. Both witnesses for the defendant admitted that no other property would be affected by a gasoline station on the subject property.

The Supreme Court of Illinois in Chicago Title & Trust Co. v. Village of Wilmette, 27 Ill2d 116, 188 NE2d 33, recently held unconstitutional the defendant village’s zoning ordinance as it affected the property directly across the street from the subject property, located at the southwest corner of Skokie Boulevard and Lake Avenue and consisting of an area of 28,000 square feet (the Marathon station now being located thereon). In its opinion at pages 123, 124 the court fully enumerated the applicable standards in determining the constitutionality of a particular zoning classification and consequently repetition thereof is not required herein. Plaintiff contends that the aforementioned case is controlling upon the instant case because the properties are directly across the street from each other, both were zoned for “group housing” in the ordinance and the proposed use in each instance was for a gasoline station. Certainly that case provides guidelines for our decision here. Referring to the traffic conditions and the desirability of housing at the intersection of Skokie Boulevard and Lake Avenue, the court stated that:

Skokie is also a heavily traveled thoroughfare and traffic counts taken in 1959 and 1960 showed that in the neighborhood of 25,000 vehicles pass through the Lake-Skokie intersection in the course of 24 hours. For the years 1957 through 1960 there have been, respectively, 25, 14, 25 and 19 accidents at the intersection. The tremendous volume of traffic at the intersection and the extensive commercial uses at two of its corners are factors which in themselves do much to cause the property to be unfit and undesirable for residence purposes and demonstrate the unreasonableness of the classification. Indeed, those building residence properties in the immediate area have taken great pains to orient and isolate their properties away from the traffic and commercial uses, . ... We have consistently held that zoning ordinances restricting an area to residential use are void as applied to property within the area which is so situated in relation to a commercial zone as to render it peculiarly unattractive and of little value for residential use. (Citing cases.)
We would add, too, in looking to the reasonableness of defendant’s regulation, that the same considerations did not deter it from permitting, by special ordinance, a commercial use of the Thalmann property located at the northeast corner of the intersection.

We hold that case to be controlling as to the suitability of group houses oriented towards the intersection of Skokie Boulevard and Lake Avenue. Defendant contends, however, that the aforementioned case is not controlling upon the disposition of the issues before this court in the instant case since group houses can be constructed on the subject property which are oriented away from the intersection. In support of its contention defendant asserts that the adjacent residential uses are oriented towards the subject property in that the front doors, picture windows and living and dining areas of the townhouses adjoining the subject property to the east and the living room, picture windows and master bedrooms of the townhouses adjoining to the south face directly across the subject property. But, as respects the group houses to the east, the Master found that:

There is a line of shrubbery along the west line of this group house which is designed to mask the view westerly toward the house and garage on subject parcel 3 which this group house faces. The masking does not extend up to the second story. . . .

Referring to the group houses to the south the Master in his conclusion stated:

[I] t is admitted that only . . . some of the units in the group house to the south will suffer a dollar depreciation in his property in a limited percentage. . . .

Defendant introduced into evidence a proposed offer to purchase the subject property for $35,000 for the construction of group houses and two plans prepared by the Building Commissioner of the village to use the property for that purpose. Those plans as set forth in the Master’s Report are as follows:

(T)he Building Commissioner of the Village prepared two possible layouts for group house usage of the subject parcels (assuming the use of the three parcels as a whole); one alternative is ten units in three buildings (two buildings of 4 units each and one building of two units); the other is 9 units in two buildings (one building with four units and one building with five units).
(A) Both plans contemplate one building situated parallel to Lake Avenue, but make no determination whether the front or rear shall face Lake Avenue.
(B) One plan contemplates a second building parallel with Skokie Boulevard, but makes no determination whether the front or rear shall face Skokie Boulevard.
(C) The other plan contemplates a second and third building; each situated at right angles to the building parallel to Lake Avenue and open to Skokie Boulevard, but makes no determination of whether the fronts or rears shall face Skokie Boulevard.
(D) None of these buildings would be situated so as to side on Skokie Boulevard or Lake Avenue.
(E) In each plan, the parking places would be at the east of the buildings and along the present group house to the east, and in the instances of those buildings south of the building proposed to parallel Lake Street [Avenue], the dwelling units would have to face either Skokie Boulevard or their parking areas.

Upon finding that the group houses which could be constructed pursuant to the only plans submitted by defendant would be undesirable dwellings, the Master in his conclusion stated that:

The use of the subject property would not assure the group house dwelling units to the east a completely pleasant view since the proposals for group houses on the subject site contemplate parking spaces adjacent- to these east dwelling units. The vista of a parking lot would not be agreeable, and there would be [a] possibility of invasion of the privacy of these residents, lights and noise from cars—slamming of doors—by and from the users of the proposed parking lot. The patent answer is that the group house to the east must furnish its own screen no matter what the use of the subject property. . . .

The Master in concluding that the subject property “takes its characteristics from its street frontages and cannot turn its back on these frontages for a desireable [sic] use which can avoid the burdens, of the nonresidential uses opposite its frontages” also stated:

If it did attempt to create frontages away from these street frontages, the artificial frontages would necessarily face its parking spaces, and the burdens of the commercial intersection and the commercial uses at the other three corners would still be there to affect its rear windows.

The witnesses for both sides gave similar definitions of the “highest and best use” of the subject property in the economic sense, but differed in their application of that term to the subject property. There was no divergence of opinion, however, as respects the greater value of the subject property taken as a whole if used for a gasoline station over that if used for group houses. Commenting on the reason for these differences the Master stated in his findings that:

The differences in application by these witnesses is that the witnesses for the plaintiffs considered the questions of appreciation in value from gas station use to the plaintiffs and of depreciation, if any, from such use to surrounding or adjacent properties; thus they found appreciation in the value of the subject property and little or no depreciation to adjoining properties; the witnesses for the defendant ignored appreciation of the subject property and considered only the question of depreciation to the surrounding or adjacent properties, and they were of the opinion that the group house to the east of subject parcel 3 would be depreciated and that two or three units of the group house to the south of parcel 3 would be depreciated.

Defendant contends that the propriety of the zoning classification of parcel 3 should be considered separate and apart from that of the remaining parcels, asserting first that each parcel is separately owned; second, that there are substantial differences between the surrounding uses and influences which bear upon the respective parcels; and third, that parcel 3 has been improved with a conforming residential use for many years. It is undisputed, however, that throughout this litigation plaintiffs have regarded the subject parcels as a single tract for the purpose of common development since they did not consider parcels 1 and 2 by themselves to be of sufficient size for use as a service station. The reasonableness or constitutionality of an existing zoning classification as it applies to specific property is determined in light of the proposed use of that property. LaSalle Nat. Bank v. City of Chicago, 61 Ill App2d 369, 209 NE2d 858. Therefore, since the proposed use encompasses all three parcels, the parcels were properly considered as one tract.

Defendant also contends that since there was no testimony of need for an automobile service station on the subject property, plaintiffs have not established that the existing zoning classification as respects the subject property is unconstitutional. No authority is cited by defendant to this effect. In Hoffmann v. City of Waukegan, 51 Ill App2d 241, 201 NE2d 177, where the plaintiff sought to have her property rezoned to permit the construction of a shopping center and apartment house, the court stated that community need was a relevant, though not conclusive, factor. In the recent case of LaSalle Nat. Bank of Chicago v. Village of Skokie, 62 Ill App2d 82, 210 NE2d 578 (decided since the briefs were filed in the instant case), the court allowed the plaintiff to erect a gasoline service station, stating that:

[W]e do not feel that it is the office of this court to determine the feasibility of using the subject property for a gasoline service station from an economic standpoint.

Therefore, even if a consideration of need is relevant, it is only one of the numerous factors to be considered herein. No single factor is controlling. Chicago Title & Trust Co. v. Village of Wilmette, 27 Ill2d 116, 188 NE2d 33.

The evidence in the instant case amply supports the Master’s conclusion that the character of the subject property is controlled by the commercialized intersection of Skokie Boulevard and Lake Avenue; that the “highest and best use” of the subject property is for the proposed gasoline station; and that therefore the R-3 zoning classification is unconstitutional as respects plaintiffs’ property. The findings and conclusions of the Master, approved and adopted by the Chancellor, will not be disturbed unless they are manifestly against the weight of the evidence. LaSalle Nat. Bank of Chicago v. Village of Skokie, supra; Atkins v. County of Cook, 18 Ill2d 287, 163 NE2d 826. The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

McCORMICK and ENGLISH, JJ., concur.

      The approximate square footage of each parcel is as follows: parcel 1-1,500;.parcel 2-12,000; parcel 3-18,000.


source: Caselaw Access Project

author: MR. JUSTICE BURMAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Teague, Defendant-Appellant.
    Gen. No. 50,051.
    First District, First Division.
    January 7, 1966.

      Lael F. Johnson and Raymond, Mayer, Jenner & Block, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, John Teague, was charged in separate indictments with the offenses of rape and robbery. After a jury trial, he was found guilty and sentenced to a term of not less than thirty nor more than sixty years in the penitentiary. On this appeal, he seeks a reversal of his convictions on the grounds that the indictments did not specify the time and place of the offenses with the degree of definiteness required by statute, and therefore did not properly state the offenses of rape and robbery. In the alternative, he seeks a new trial, contending primarily that the misconduct of the prosecutor and the admission of improper evidence deprived him of a fair trial.

The sequence of events which comprised the offenses, according to the testimony of the complaining witness, was as follows: On the date in question, December 30, 1963, she was twenty years of age, married and employed. At 5:50 a. m. that morning, she left her mother’s apartment in a Chicago Housing Authority Building at 4947 South Federal Street to report for work. When she entered the elevator on the eleventh floor, there was one man inside, facing the door as she entered. She said, “Good morning” to him, but received no reply. She punched the first floor button, and he punched the fifth floor button. When the elevator reached the fifth floor, he said to her, “This is a stickup. Don’t make a sound or I will shoot you.” Keeping his left hand concealed within his jacket pocket, he forced her into the deserted laundry room on the fifth floor, where he raped her and took her watch and some money from her purse. She said she observed her assailant on the elevator, as well as in the laundry raom, and described his clothing. In the weeks which followed the incident, she identified the defendant as her assailant from photographs and at a lineup. At the trial, she identified a pair of boots and a leather jacket as having been worn by her assailant. A police officer later testified that he had taken these items from the defendant’s closet and from the trunk of his car.

The defendant claimed that on December 30, 1963, he was visiting his mother in Momence, Illinois. He stated that he had been accompanied on that visit by his brother, James Teague, among others; and this testimony was corroborated by that of his brother.

In claiming that the indictments in this case were fatally defective, the defendant relies upon Ill Rev Stats 1963, c 38, § 111-3 (a) (4), which reads in relevant part as follows:

Form of Charge, (a) A charge shall be in writing and allege the commission of an offense by. ... (4) Stating the time and place of the offense as definitely as can be done. . . .

It is defendant’s contention that at the time the indictments were returned the State was aware of the exact street address at which the offenses allegedly were committed, and the precise time of day at which they allegedly occurred. The indictments, however, state merely that the offenses were committed on December 30, 1963, at and within the County of Cook. The failure of the indictments to state the additional facts, it is urged, constitutes a violation of the foregoing statute, and defendant seeks a reversal of his convictions on these grounds.

This question was presented in People v. Blanchett, 55 Ill App2d 141, 204 NE2d 173, and principal reliance is placed by the defendant upon the Appellate Court opinion in that case. The information in Blanchett was similar to the indictment here in that it only stated the date of the alleged offense, and the county in which it allegedly occurred. It was never denied by the State, however, that the exact address where the alleged offense occurred was known. The Appellate Court held that the information failed to comply with the statute, that the defendant’s motion in arrest of judgment was wrongfully denied, and reversed the conviction.

But our Supreme Court recently reviewed the Blanchett decision, and reversed the finding of the Appellate Court. Docket #39232. The court pointed out that the former statutory provision had required only that the time and place of the offense be stated with reasonable certainty, Ill Rev Stats 1961, c 38, § 716. This language was held to be satisfied by an indictment stating that the offense was committed within a given county and on a given day (with certain exceptions not here relevant). The court then went on to hold that:

In view of the expressed purpose of the Code to secure simplicity in procedure ... we believe that the language in section 111-3 (a) (4) was not intended to change the former rule and require a more precise description of the time and place of the occurrence in order to charge an offense.

The information was then held sufficient in Blanchett, and the conviction reinstated. In our opinion, that holding is dispositive of this issue here.

In support of his allegation that he was denied a fair trial, defendant relies primarily upon the allegedly improper cross-examination of his brother, James Teague, and upon subsequent related remarks made by the prosecutor.

On direct examination, James Teague testified that he knew a girl at 4947 South Federal Street. On cross-examination he admitted that some time after December 30, 1963, he went to that address to talk to the complaining witness about the case pending against his brother. He testified that he went to the eleventh floor apartment of the complaining witness’s mother, and after being told that the complaining witness was not at home he talked about the case with an elderly lady at that apartment. In the course of his testimony he was asked:

Q. In fact, you went there and you wanted to talk to the lady to change her testimony, isn’t that right?
Mr. Brandvik [Defense counsel]: I will object, your Honor, I will object to that, that is highly improper.
The Court: Strike it, no foundation.

When James Teague was asked why he went to see the complaining witness’s mother, defense counsel interrupted, “In the first place there is nothing wrong with this witness going to see the complainant.” After he had been questioned further about this visit, James Teague was again asked about the purpose of the visit, and defense counsel objected. The court overruled the objection, and the prosecutor then said, “I think it’s proper. Intimidating witnesses.” Defense counsel again objected, and moved for a mistrial, and the court denied his motion. When asked how he knew where the victim lived, James Teague said that his landlord knew her, and that his landlord had come to him and said, “James, you need at least $200 together and carry it right to me and I will carry it to the girl and guaranty.” The witness said that he went over to see the complainant himself, instead.

The defendant argues that this line of questioning was highly improper and prejudicial, and that the trial court committed reversible error in overruling his objections to it and in denying his motion for a mistrial.

In regard to the propriety of this line of cross-examination, the State has brought to our attention Illinois cases holding admissible evidence of the defendant’s attempts to intimidate or induce witnesses to remain silent or testify falsely. See People v. Gambony, 402 Ill 74, 83 NE2d 321; People v. Spaulding, 309 Ill 292, 141 NE 196. But as the alleged intimidation in this case was by the defendant’s brother, and no evidence was introduced to show the participation of the defendant himself, these decisions are not directly on point. The California case of People v. Alcalde, 24 Cal2d 177, 148 P2d 627, is very close on the facts to this case. There, the defendant was on trial for murder, and his father offered testimony which tended to establish an alibi for the defendant. On cross-examination, the father was questioned as to his alleged offer to pay two witnesses to corroborate the alibi by testifying, contrary to the fact, that they saw the defendant at a given place at a given time. This line of cross-examination was admitted over objection, and defendant challenged the ruling on appeal. The Supreme Court of California held:

The ruling was not erroneous. A witness who has testified to material matters may be cross-examined as to his attempt to bribe other witnesses and it may be shown by other witnesses that he offered bribes to obtain false testimony. The father testified to a material matter which, if true, would tend to establish the defendant’s alibi. The attempt to suborn witnesses, if proved, is material in weighing the testimony of the one guilty of the attempt. (148 P2d 627, 630).

See also 3 Wigmore on Evidence § 960 (3d Ed, 1940). We conclude that it was not an abuse of discretion for the trial judge to allow this line of cross-examination of the defendant’s alibi witness.

Defendant contends further that the accusations made by the prosecutor during his closing argument, which related to James Teague’s visit, went far beyond the evidence in the case, and were highly prejudicial. But the record reveals that no objection was made by defense counsel during that argument. Defendant argues that these comments were so prejudicial that the convictions must be reversed despite the absence of objection, citing People v. Morgan, 20 Ill2d 437, 170 NE2d 529. The jury in the instant case was properly instructed, however, to disregard any statement of counsel not based upon the evidence, and not to be influenced by anything other than the law and the evidence in the case. Furthermore, our careful review of the record leads us to the conclusion that no other verdict of the jury would have been reasonably possible, People v. Courtney, 307 Ill 441, 138 NE 857.

Defendant argues that he was prejudiced by the wrongful admission of the testimony of two police officers to the effect that defendant made no mention of his alibi when he was first taken to the police station. No objection was made to this testimony at any time during the trial. In fact, the first mention of the defendant’s silence at the police station was elicited by defense counsel on cross-examination of one of the police officers. Under these circumstances we conclude that the admission of this testimony could not be termed reversible error. People v. Bowlby, 51 Ill App2d 51, 201 NE2d 136; People v. Pompey, 53 Ill App2d 118, 203 NE2d 52.

In his closing argument to the jury, the Assistant State’s Attorney said the following:

I submit, ladies and gentlemen, she is not identifying a rash, she is identifying a face, a face that she will never forget as long as she lives, a face that will be printed on her mind, and I hope that none of you ever have to go through what Mrs. Oliver went through or none of your wives or daughters or friends have to go through what Mrs. Oliver went through, but I submit to you that if any of you women have to go through this or if any of the wives of the men in this jury go through this, that woman is never going to forget the face of the man, especially with the opportunity she had, face to face in a lit laundry room, face to face in an elevator, face to face when he is searching her clothes, and then something that cannot be denied, the clothing, the clothing that she describes as found in the trunk of the car and in his home, the trunk of the car that he has the only key to, and it was locked in the trunk of that car.

Defendant argues that the prosecutor’s hypothesizing a similar experience on the part of the women on the jury, or the wives of the men on the jury, or their daughters or friends, was intended to strip the jurors of their objectivity and in fact accomplished that goal. He contends that this remark alone was sufficient to deprive the defendant of a fair trial.

The record reveals that no objections were made by defense counsel during the course of this argument; and under such circumstances, any contentions as to this line of argument must be deemed to have been waived. People v. Donald, 29 Ill2d 283, 194 NE2d 227; People v. Sinclair, 27 Ill2d 505, 190 NE2d 298. A review of the prosecutor’s argument satisfies us that it did not exceed the bounds of fair argument. We find nothing in the argument sufficient to require reversal. People v. Wright, 30 Ill2d 519, 198 NE2d 316.

Defendant’s final two contentions are that certain testimony elicited by the prosecutor implied to the jury that the defendant had been arrested for other crimes, and that he was living with a woman without the benefit of marriage ties. We have examined the record carefully on these questions, and have concluded that they do not merit a detailed discussion here.

The defendant received a fair trial, and the judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


author: MR. PRESIDING JUSTICE KLUCZYNSKI

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Kolar, Defendant-Appellant.
    Gen. No. 50,057.
    First District, First Division.
    January 7, 1966.

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

delivered the opinion of the court.

Defendant, Edward Kolar, appeals from a bench trial conviction of assault with intent to commit rape, contending that the evidence failed to prove, beyond a reasonable doubt, the intent involved.

In order to determine this issue it is necessary to review the evidence adduced at the trial. The prosecutrix testified that on the morning of May 16, 1964, at about 5:25, she was walking from her home to her place of employment, Arlene’s Bakery at 2800 S. Keeler Avenue, Chicago, which was about two blocks away. A car she described as fitting the description of defendant’s automobile, passed her and turned the corner at 28th Street. When she approached to within two “doors” of 28th Street, she saw defendant coming out of a gangway. He looked at her, and she at him; “[h]e was fixing his wristwatch.” She passed him and as she got to an alley adjacent to Arlene’s Bakery building and between Keeler Street and Tripp Avenue, “that’s when [she] tried to turn around and he put his hands around [her] mouth and throat.” She screamed, whereupon defendant said “Shut up or I’ll kill you.” She screamed again and bit his hand. He continued to drag her into the alley, then pushed her down and touched her “personal place.” She heard someone else scream and the defendant ran away. Twenty minutes later, when the police brought defendant to the front of the bakery she viewed him and said “he looks like the fellow, I am sure he is him.” The only remark defendant made was, “Look lady, I’ve been in the sh—house before. They’ll throw me in on something like this.” She further testified that the car that passed her in the street was then parked in front of the bakery.

A woman who lived on the second floor of a building, “kitty corner” from the bakery, testified that she had a view of the bakery from her window; that at the time she had raised her porch window shade and was preparing to have a cup of coffee; that she saw a car stop right alongside of the bakery building and a tall, slim fellow get out and hurry into the alley; that as she bent down to pick up her coffee she saw the prosecutrix a couple of feet from the alley, and that when she put her “coffee” down the prosecutrix was “gone”; that upon hearing loud screaming she opened her window and screamed. She then ran out to the street and saw the prosecutrix come out of the alley “hysterical.” The car was still parked and remained so until the police came.

Another witness testified that she was also employed at Arlene’s. At about 5:20 a. m. the car pulled up and a man, whom she identified as the defendant, got out and hurried toward the alley.

The only other witnesses were police officers who testified to the defendant’s arrest, the identification by the prosecutrix, and the identification of defendant’s car in front of the bakery.

Defendant relies on People v. Bush, 19 Ill2d 151, 166 NE2d 91 (1960), for reversal. The facts and circumstances in that case are somewhat different, but the court there sets forth what is necessary to prove an assault with intent to commit rape: (p 154)

The essential elements of the crime are specific intent so to do and an assault of such nature as would amount to rape if the purpose of the assault had been accomplished. (People v. Liechron, 384 Ill 613). The gist of the offense is the specific intent charged. (People v. Marino, 388 Ill 203; People v. Cieslak, 319 Ill 221). An indecent assault, however aggravated, will not warrant a conviction of assault with intent to commit rape, without proof of an intention to have intercourse with a woman by force and against her will. (People v. Hiller, 7 Ill2d, 465; Newman v. People, 223 Ill 324). That intent need not be an express one, and it may be inferred from the acts of the accused and the circumstances of the assault, as well as from express words. (People v. Hiller, 7 Ill2d, 465; People v. Marino, 388 Ill 203).

In People v. Anderson, 382 Ill 316, 47 NE2d 718 (1943) the defendant was charged with assault with intent to rape. The following evidence was brought forth at the trial. The complainant, at 12:30 a. m. was walking toward her home, some five blocks away. The defendant approached her “stealthily from the rear,” threw his arms around her, put one hand over her mouth and commanded her to keep quiet. She jerked loose, started screaming and struggling. The defendant then pushed her into the prairie adjoining the sidewalk and threw her into the weeds. She screamed again. He got on top of her and told her to keep quiet, tried to shut her mouth and at the same time put his hand in her mouth whereupon she bit his little finger. She again screamed and at this juncture the occupants of a passing automobile were attracted and the defendant ran away. The court commented that because the victim was carrying a purse and defendant did not attempt to take or steal it, robbery was not his motive. The conviction was upheld, the court finding that defendant’s position and his acts demonstrated that he intended to commit rape and to use such force as might be necessary to overcome resistance.

The reviewing court in People v. Mayer, 392 Ill 257, 64 NE2d 372 (1946), considered the sufficiency of a victim’s testimony to sustain a verdict of guilty where the specific intent to rape was an essential element of the crime charged. She said she alighted from a bus at about 11:10 p. m. and proceeded to walk toward her home two and a half blocks away. The defendant also got off and walked “nearly even” with her. As she proceeded up the driveway of her home the defendant jumped upon her back, cupped his hands over her mouth, threw her to the ground and kicked her in the stomach. Her clothes were torn and stained and she finally succeeded in calling her father. The defendant then fled. The evidence showed her nose was bleeding and her face scratched. The court, on page 259, said:

The victim was a woman; she was a stranger to the defendant; the assault was made during the night, and in the seclusion of a driveway leading from the street to the house. The assault was violent; the prosecutrix was thrown to the ground; her clothes were torn and stained; and the assault ceased only when the father came from the house in response to the screams of the daughter. Under these circumstances, does the law require the offense to be limited to assault and battery because the intent was not voiced in language, or the victim had not been sufficiently overcome for the assailant’s physical acts to more completely manifest his intention? We think, in determining the question of intent, the jury had the right to consider the experience of mankind. Law and education has not completely eradicated the evil instinct of some men to assault women. The survival of this evil instinct is recognized by the law, which permits a jury to convict, in cases of this kind, upon the uncorroborated testimony of a woman, if, from the circumstances, the jurors are satisfied of the defendant’s guilt beyond a reasonable doubt (citing authorities . . .).
It is for the jury to determine the intent.

We are of the opinion that the uncontradicted facts and circumstances in the instant cause are sufficient to support the trial judge’s finding that the specific intent essential to the crime charged was proven. Bush, and those cases reversing the convictions for failure to prove the intent, were cases in which the attempt consisted of indecent proposals, undue familiarity or insulting conduct without an assault which, either from its violence or threats accompanied by acts, indicated an attempt to overcome the victim in spite of resistance. In situations such as we find here, where the assault is violent, hostile and not in the nature of persuasion, the assault together with the threats, circumstances and other acts, manifest the purpose and establish the intent. People v. Maher, 377 Ill 488, 36 NE2d 735 (1941).

The proof supports the judgment and the trial court is affirmed.

Affirmed:

BURMAN and MURPHY, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    Robert Sughero, Plaintiff-Appellee, v. Jewel Tea Co., Inc., et al., Defendants-Appellants.
    Gen. No. 50,104.
    First District, First Division.
    January 7, 1966.

      Hubbard, Hubbard, O’Brien & Hall, of Chicago, for appellants.
    Warren J. Hickey, of Chicago (Warren J. Hickey and William J. Harte, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action in which defendants appeal from a $60,000 judgment. The trial court directed a verdict on the issue of liability and submitted only the issue of damages to the jury.

Defendant Perrino, while driving a tractor unit of defendant Jewel Tea Company east on Belmont Avenue, Chicago, skidded on the wet asphalt pavement into the westbound lane and collided with plaintiff’s westbound Ford station wagon.

Defendants’ theory on appeal is: “1. There is no evidence of any negligence of defendants. The fact that the tractor skidded on the wet asphalt does not constitute negligence and is not evidence of negligence. 2. The court had no basis on which to find that defendants were guilty of negligence as a matter of law. 3. Plaintiff admitted on pretrial deposition he never saw the tractor before he collided with it. He also admitted that he did not see the cars ahead of the tractor. Had he kept a proper lookout he could have stopped or veered to the north so as to miss the tractor. The court erred in holding plaintiff had proved his own due care as a matter of law.”

The collision occurred on the morning of July 26, 1960, between 9:30 and 10:00, about 125 feet west of the intersection of Belmont Avenue and Oleander Avenue, a north and south street. Five automobiles were moving east on the inside lane of Belmont toward the intersection, when the first car stopped suddenly. Defendants’ tractor was the fourth car in line. Perrino applied the brakes and the tractor “spun” and went into the westbound lane and stopped. Plaintiff’s car, traveling west, collided with the tractor at its right front and mid-section. The fifth eastbound car, a truck which was following defendants’ tractor, stopped without incident.

The occurrence evidence of plaintiff consisted of the testimony of (1) the plaintiff; (2) the driver of the fifth car; and (3) an investigating police officer, who related a post-occurrence conversation with defendant Perrino.

Plaintiff testified he was familiar with Belmont and Oleander and was traveling west on Belmont at 20 to 25 miles per hour. “As I approached Oleander I wasn’t following any cars. ... I could see clearly. It had rained earlier that morning, but the streets were dried up. At the time of the accident it wasn’t raining. As I crossed Oleander looking straight ahead, I did not see any cars ahead of me. I was traveling on my side of the street. I did not cross the center line. I saw another vehicle cross the center line before the accident. It was a truck, a Jewel truck. The truck was 10 to 15 feet away when I first saw it. At that time the truck was swerving and skidding. ... It was coming into my lane across the line. There were other vehicles on the other side of the street that were eastbound. I saw one . . . about halfway past the car that was stopped. I was approximately two feet from the center line of the street. When I saw the truck come into my lane, about 10 or 15 feet away, I applied my brakes. He came into my lane and hit me. I don’t know what part of the truck hit me. From the time it came into my lane and hit me was a fraction of a second. . . . [The other vehicle] was skidding out of control. At the time of the impact, my vehicle was moving. ... I applied my brakes as soon as I saw the truck. There was nothing in my lane before the truck came into it. The position of my vehicle after the accident was westbound. It was still on my side of the street.”

On cross-examination, plaintiff testified, “The accident itself occurred west of Oleander. It was opposite the gas station, on the west lane, north side of Belmont and west of Oleander. ... It was between the two entrances of the gas station when I saw the tractor. When I crossed Oleander I was going 25 miles per hour. When I saw the tractor it was coming right at me. It was facing east. He was opposite the pole between the two entrances to the gas station. I was going 25 miles an hour. I don’t know how far I went after I saw the tractor. I applied my brakes. My brakes operated. The speed of my car diminished. I don’t know how much. . . . I did not swerve when I saw the tractor. When I saw the tractor, it was in the inner westbound lane. The impact was between my car and the tractor in the inner westbound lane.”

The fifth car driver, Carmen Trimarco, testified that he was driving a truck east on Belmont. “On Belmont there is one open lane and one on the side for parking. There is a line in the center dividing eastbound from westbound traffic. ... It had rained earlier that morning. . . . With relation to the center line I was driving about a foot or a foot and one-half and I would say at least two feet from the center. . . . During my going east there were cars ahead of me. The vehicle ahead of me the closest during the accident was a truck. It was a Jewel truck.” Trimarco was traveling 15 or 20 feet behind the truck. As they came closer to Oleander, “I seen he was going into a skid so I applied my brake. . . . He went in the other lane, facing north as he was skidding . . . across the street. ... I heard a crash.” Trimarco did not skid—“No, I pulled on the side.”

On cross-examination, Trimarco testified that, “As I approached Oleander Street, I was going between 20 and 25 miles per hour. I would say the truck ahead of me was going about the same speed.” He saw “an indication of the tractor that the brakes were being applied,” and that “he skidded to the north, north lane. . . . He was going into a skid when I seen him.” Trimareo turned to the right to avoid hitting the truck. He said, “It was wet, very bad. He [Perrino] must have hit an awful oil spot or grease spot. ... I don’t know whether there was a grease spot or oil spot there where the tractor skidded.” The other lane going west was dry, “but the lane he was in was wet.”

Defendant Perrino, the tractor driver, testified, “The brakes were in good condition. I was going east on Belmont and approaching Oleander. There were other vehicles eastbound. Those vehicles were right on Belmont. They were ahead of me. There were three vehicles ahead of me as I was in the vicinity of Oleander Avenue. I had been following them for some distance. At Oleander Avenue the first car in front of me, the one furtherest away from me made a sudden stop. The vehicles ahead of me also made a sudden stop. I applied my brakes. The tractor spun. It spinned. The tractor went over the westbound lane. The surface of the street was wet. After the tractor went over into the westbound lane, I stopped. Then I was hit. I was hit in the right side of the tractor. ... At the time my tractor came into the westbound lane, there wasn’t any westbound traffic. There were no automobiles parked on the north side of Belmont. . . . After I skidded, the front of my tractor was in the westbound lane. The rear was in the eastbound lane.”

On cross-examination, Perrino testified that he was between 45 to 50 feet from the first car when he saw it come to a stop; that he was about 40 feet from the second car when it came to a stop, and about 20 feet from the third car when it came to a stop. “I didn’t see the other car at all. I don’t know where it came from. It happened about 2 seconds after I went across the center line. I was stopped for about two full seconds. My tractor was in the north lane and the south lane. Belmont runs east and west. ... At the time the impact happened, part of my tractor was in the west lane. The front of my tractor was about 20 feet from the north curb. No I’m sorry, about 12 feet. ... I would say the accident happened about two to five seconds just after I went over the center line. I was standing still all the time. My vehicle was against the curb when I got out of it. I was forced into the curb.”

A witness for defendants, Richard Tolf, testified he saw the occurrence as he was coming from his office in a building directly across from the scene and approximately 125 feet west of Oleander Avenue. “To start out with, there was a car which was about to make a left turn which stopped rather suddenly. This was followed by two other cars, followed by the Jewel Tea tractor. The two cars stopped. The tractor of the Jewel Tea Company swerved to the left; his brakes were applied because the wheels were stopped; they were not rolling. By this time the car coming west was approximately at the intersection of Oleander. It continued to go forward and struck the Jewel Tea tractor. The vehicle stopped dead. The tractor did go forward across the other lane at that time.”

On cross-examination, Tolf testified, “The first car stopped at Oleander. It was going to make a left turn. When that car stopped at Oleander I would say the Jewel truck was 200 to 250 feet from the first car. . . . The car at Oleander stopped abruptly. The second car came to a stop maybe a foot or two behind the first car. When the second car came to a stop, the Jewel truck was away from the second car 30 to—about 50 feet. The car that had come up and stopped a foot behind the traffic, it slid. It didn’t slide across the center line. The third car came to a complete stop, roughly about one or two feet behind the car ahead of it. And when the third car came to a stop, the Jewel truck was roughly 50 feet from the third car. ... I would say that he applied his brakes. When I saw the Jewel truck moving in that lane, there was a time when the Jewel truck started to go across the center line of the street. ... I would say that he was across the center line and actually stopped for maybe one, two, three, four, five seconds. . . . When the collision occurred, the Jewel truck was facing northeast.”

As no issue is presented on appeal as to the amount of the damages, the decisive question is whether the trial court erred in directing a verdict for the plaintiff on the issue of liability.

On a motion by plaintiff to direct a verdict against defendants at the close of all the evidence, the trial court must view all of the evidence in its aspects most favorable to defendants, together with all reasonable inferences to be drawn therefrom. (34 ILP, Trial, § 132.) The court may not consider any conflicts in the evidence, or its weight or preponderances, or the credibility of witnesses. “It is proper for a court to direct a verdict for a plaintiff on the issue of liability at the close of all the evidence when the plaintiff has made out a case and there is no evidence contradicting or tending to contradict the plaintiff’s evidence on that issue.” Ryan v. Goldblatt Bros., Inc., 24 Ill App2d 239, 242, 164 NE2d 280 (1960); Houchins v. Cocci, 43 Ill App2d 433, 434, 193 NE2d 597 (1963).

Initially, we consider defendants’ contention that “the court erred in holding plaintiff had proved his own due care as a matter of law.” Defendants argue, “There were no cars parked on the north side of Belmont. There would have been ample room for plaintiff to have driven by the tractor had he kept a lookout. Plaintiff had ample time in which to stop. He had to pass three cars. Going 20 miles an hour as he testified, he would have had time to stop had he kept a proper lookout.”

In our opinion, all reasonable minds, in the exercise of a fair and honest judgment, would be compelled to reach the conclusion that plaintiff was in the exercise of due care at the time of the occurrence. He was in his proper lane, moving west at 20 to 25 miles an hour, when an eastbound truck, 10 to 15 feet away, crossed the center line into his lane and stopped. He applied his brakes as soon as he saw the truck and did not swerve. This evidence stands uncontradicted. The testimony on behalf of defendants that the truck was stopped for a period of one to five seconds does not show that “plaintiff had ample time in which to stop” or to change lanes in order to avoid the collision. Split-second changing of lanes in moving traffic under the conditions portrayed by the evidence is not proper. (Ill Rev Stats 1968, c 95%, § 162.)'

Defendants further argue that plaintiff’s pretrial deposition answers demonstrate that he was not keeping a proper lookout, and that “he could have avoided the collision.” On cross-examination, plaintiff recalled the following questions and answers given by him in a pretrial deposition:

“Q. Now, as you were proceeding westbound on Belmont, where were you when you first noticed this tractor that you had the collision with?
“A. Well, it all happened so fast that I knew I was by the Gulf station over there. That is all I remember, and that he just came right out.
“Q. Did you ever see this tractor before the two of you collided ?
“A. No.
“Q. Did you see any eastbound vehicles at all before the collision ?
“A. I was looking straight ahead. I didn’t—I may have seen it but I didn’t notice.”

As asserted by plaintiff, “In the very same deposition immediately thereafter and in response to other questions by the same defense counsel, plaintiff described the action of the tractor as it came across the center line in front of his car prior to impact. His testimony on pretrial deposition was identical to his testimony at trial, namely, that his car was 10 to 15 feet from the truck when he saw it swerving and skidding into his lane. He applied his brakes but couldn’t stop in time.” There is no merit in this contention.

We consider next the issue of defendants’ negligence as a matter of law. Defendants argue, “Defendants’ truck was in good condition. Defendant Perrino was driving carefully at a moderate speed. He was not following too closely. Defendant Perrino applied his brakes because the cars in front of him stopped abruptly. The fact that the truck skidded on the wet asphalt was not negligence nor did it prove negligence.” Defendants cite a number of authorities to show that “skidding is not evidence of negligence” (Bradley v. Madden Co., 383 Ill App 153, 76 NE2d 797 (1948)), and that “the burden was on the plaintiffs to produce evidence of negligence ; it could not be inferred from the fact that the car skidded or that the accident happened, nor could it be left to guess, speculation or surmise.” (Gooch v. Shapiro, 8 NY2d 1088, 170 NE2d 830 (1960); Kauffman v. Bieker, 110 Ohio App 496, 165 NE2d 453 (1959).) Defendants also cite Ferdinand v. Lindgren, 32 Ill App2d 133, 177 NE2d 10 (1961); Piggott v. Newman, 334 Ill 75, 78 NE2d 328 (1948), and others to show defendants’ negligence was a jury question on the theory of “unavoidable accident,” and that the collision occurred without fault on the part of the defendants.

On this issue, the language in Murphy v. Kumler, 344 Ill App 287, 100 NE2d 660 (1951), is in point. “Certainly it is not incumbent upon the plaintiff to show conclusively why the defendant was on the wrong side of the road or the exact cause of the skid. Only on rare instances would that knowledge be possessed by the plaintiff. ... In a collision such as this, where one of the cars is on the wrong side of the highway and out of control, certainly it is the duty of the defendant to show that he was in that situation because of some particular reason other than his own negligence.”

Defendant Perrino’s testimony shows that he had been following three vehicles for some distance, when the vehicles ahead of him made sudden stops. He applied his brakes and the tractor “spun” into the westbound lane. Tolf testified that the second car came to a stop within a foot of the first car, and “it slid. It didn’t slide across the center line. The third car came to a complete stop, roughly about one or two feet behind the car ahead of it. And when the third car came to a stop, the Jewel truck was roughly 50 feet from the third car. ... I would say that he applied his brakes.”

Defendant Perrino was an experienced truck driver. He knew the street was wet when he applied his brakes, and when his tractor stopped, he was across the center line and in a westbound lane. The drivers of the two cars ahead of Perrino and the truck behind him had their vehicles under sufficient control so as to stop safely. Defendant Perrino had a duty to do likewise and to be sufficiently alert to have had his tractor under proper control so that he could have stopped it without “spinning” into the westbound lane. There is no evidence in the record which shows or indicates that the occurrence came about “because of some particular reason other than his own negligence.” If defendants’ tractor was 200 feet behind when the first car stopped abruptly, as stated by Tolf, it demonstrates that “The fact that his car skidded into plaintiff’s car, even though the pavement was wet, leaves room for no other inference, . . . except that under the circumstances defendant ‘was driving too fast or following . . . too closely.’ ” (Ceeder v. Kowach, 17 Ill App2d 202, 204, 149 NE2d 766 (1958).) The directed verdict for plaintiff on the issue of defendants’ liability was proper.

For the reasons given, the judgment is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


text:
    Crest Finance Company, Inc., Plaintiff-Appellant, v. First State Bank of Westmont, Defendant-Appellee. Federal Deposit Insurance Corporation, as Receiver for the First State Bank of Westmont, Intervenor-Appellee, v. Leo Niederberger, Third Party Defendant-Appellant.
    Gen. No. 50,169.
    First District, First Division.
    January 7, 1966.
    Rehearing denied February 3, 1966.

      Kirkland, Ellis, Hodson, Chaffetz & Masters, and Rappaport, Clorfene & Rappaport, all of Chicago (Don H. Reuben, John E. Angle, Craig W. Christensen, and Hamilton Clorfene, of counsel), for appellants.
    Taylor, Miller, Magner, Sprowl & Hutchings, of Chicago (John S. Miller, James J. Magner, E. Marvin Buehler, William M. Moroney, and Leslie H. Fisher, Washington, D. C., of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Cook County which dismissed, for want of equity, a complaint in chancery filed April 30, 1963, whereby plaintiff sought a decree directing the defendant bank to deliver to plaintiff commercial paper and collateral of a face value of approximately $900,000.

On May 16, 1963, Joseph E. Knight, Director of the Department of Financial Institutions in the State of Illinois, took possession of the defendant bank, and on May 24, 1963, filed a complaint in the Circuit Court of DuPage County for its dissolution. On the same day, Federal Deposit Insurance Corporation was appointed receiver of the defendant bank. On June 25, 1963, the receiver was granted leave to intervene in the instant cause and to file its intervening petition. Leave was also granted to the receiver to make Leo Niederberger a third-party defendant.

The pleadings consist of a complaint, answer of the defendant bank, reply of the plaintiff thereto, and the intervening petition of the receiver.

Plaintiff, Crest Finance Company, is an Illinois corporation, engaged in the business of making loans to small businesses. Crest’s borrowers sign promissory notes and, as collateral security for their loans, assign chattel mortgages, accounts receivable, conditional sales contracts, or similar commercial paper. Third-party defendant, Leo Niederberger, is president and treasurer of Crest and, with his wife, owned all of its outstanding stock. In order to secure funds for Crest by loans from Chicago area banks to Crest, Niederberger personally guaranteed in excess of $900,000 of Crest indebtedness to these banks. He had also agreed with the banks that none of the commercial paper held by Crest would be pledged by Crest as security.

Early in March, 1963, Niederberger decided he would sell ownership of Crest. Lester Brock was introduced to Niederberger as a potential purchaser of Crest by a business broker, Otto Stephani. Brock was a business man and a stockholder in defendant, First State Bank of Westmont. He was also manager of a corporation known as State Street Securities, a company owned by Norman Weaver and Lawrence Stickell. Weaver and Stickell were also the principal owners of the First State Bank of Westmont, having acquired control of the Westmont Bank in February, 1963. Stickell was a director of the bank, and Weaver was chairman of its board.

Throughout his negotiations with Niederberger, Brock represented that he was acting for others, but he never disclosed their identity. He testified later that Stickell was in fact his principal, and that Weaver also had knowledge of the transaction.

On April 2, 1963, an offer to purchase agreement, dated March 30, 1963, was entered into by Niederberger and Brock. Brock agreed to (1) pay Niederberger $600,000 for all of the outstanding shares of Crest stock which stood in the name of Niederberger and his wife; and (2) substitute Brock’s personal guarantee for Niederberger’s on $900,000 of Crest promissory notes held by Chicago banks, which previously had been personally guaranteed by Niederberger. In the alternative, Brock was to pay off the total bank indebtedness and eliminate Niederberger’s “liability on any and all of such items.” The selling price was arrived at as follows: ■

Book value $250,000
Reserves 80,000
Unearned income 120,000
Good will 150,000
Total $600,000 .

Niederberger agreed “to execute or cause to be executed all documents necessary to consummate the sale of the said stock, and all matters coincidental.” Niederberger was to “continue to operate the business of Crest Finance Company, Inc., in the same manner as heretofore,” in cooperation with the buyer for at least three months, at a salary of $1,000 per month.

The agreement was executed at Crest’s office on April 2, 1963. Present were Brock, Niederberger, Stephani (the broker), Hamilton Clorfene (Niederberger’s lawyer) and Wayne Willard (Westmont’s executive vice president and cashier). Willard testified that he participated in the meeting under the instructions of “[t]he Chairman of the Board, Mr. Weaver; and Mr. Stickell, a Director.” Willard had brought four blank Westmont Bank drafts on Chicago banks. At Niederberger’s direction, Willard made three of the drafts payable to Niederberger and inserted amounts totaling $600,000. The Crest stock was not endorsed, transferred or delivered to Brock at that time, but was placed in escrow with Niederberger’s lawyer, to be held until such time as Brock had either substituted himself as guarantor or paid off all the $900,000 bank loans on which Niederberger was secondarily liable. The escrow receipt, dated. April 2, 1963, and signed by Hamilton Clorfene, was as follows:

“The undersigned hereby acknowledges the receipt of three stock certificates for a total of Seven Hundred Fifty Shares of the common stock of Crest Finance Co., Inc., an Illinois corporation, .... The undersigned agrees to hold the stock as eserowee under the following condition: Upon written advice from Leo Niederberger that he has been released from all personal liability as guarantor of Crest Finance Co., Inc., the undersigned agrees to deliver all of the said stock of Crest Finance Co., Inc. to Lester A. Brock.”

On April 2, 1963, shortly after receiving the drafts totaling $600,000, Niederberger left the meeting at Crest’s office to go to the Irving Bank to deposit the drafts in his personal account. During his absence, Brock and Willard then took approximately $800,000 of commercial paper from Crest’s office and removed it to the Westmont Bank.

On April 3, 1963, Willard, together with an assistant, returned to the Crest offices and remained there the entire day. He testified that both Mr. and Mrs. Niederberger were there on the 3rd, and that Niederberger helped Willard remove some of the commercial paper, and by the end of the 4th of April, Willard had taken to Westmont “roughly a million dollars worth of paper,” although he did not stop to audit it at that time. Willard left some receipts for part of the collateral, bearing the inscription “Received—Bank of Westmont—Wayne Willard.” Niederberger was at the Crest office only briefly during thése several days. He observed Willard photostating some documents and met with several customers of Crest. He testified that he thought it was the credit files that were being removed for audit, and that he specifically told Willard and Brock not to remove the commercial paper. It was about April 15, 1963, when he learned for the first time that “the First State Bank of Westmont was in possession of documents or securities which had been or was the property of Crest Finance Company.”

On the evening of April 2, 1963, Weaver, Stickell and Arvin Brackmann held a Westmont directors’ meeting and under date of April 2, 1963, authorized the “purchase” by the bank of $957,000 installment paper from Crest Finance Company, “with proper guarantee of payment to be made by Crest Finance Company.” This authorization was matched by an “offer for sale” by Crest, signed by Brock, as “President” of Crest, under date of April 2, 1963.

On the afternoon or evening of April 4, 1963, Brock convened what purported to be a meeting of Crest stockholders in the lobby of the bank at Westmont. The only participants in the meeting were Brock and Jack E. Sohr (a friend). Brock, Sohr and Sandra Kay Ryan (Brock’s secretary) were elected directors of Crest. Then, as directors, Brock and Sohr elected Brock, president, Sohr, vice president and treasurer, and Helen Ware, secretary of Crest. Helen Ware had previously been an employee and the secretary of Crest, but she was not informed of her “reelection.”

At the same purported special meeting of the Crest board of directors, resolutions were adopted (1) authorizing the president to sell as of April 2, 1963, to the First State Bank of Westmont, “accounts receivable belonging to this Company in an amount not to exceed One Million ($1,000,000.00) Dollars, . . . ,” and (2) “that the Secretary of this Company be and she is hereby directed to accept the shares of stock of this Company, outstanding in the name of Leo Niederberger and to issue in their place a certificate representing a like number of shares in the name of Sandra Kay Ryan.” Minutes of these purported stockholders’ and directors’ meetings of Crest Finance Company are dated April 2, 1963, and are in evidence.

On the same evening of April 4, on behalf of plaintiff Crest, and as its president, Brock signed and delivered to the Bank of Westmont a written offer dated April 2, 1963, to sell “certain promissory notes secured by assignments of accounts receivable, notes and mortgages” for the “purchase price $957,000.” The offer further agreed to deliver to the bank “the original of each and all notes” and “all notes will be assigned to the First State Bank of Westmont with payments being guaranteed by Crest Finance Co., Inc.” The offer further shows, “Accepted: First State Bank of Westmont, By: Norman H. Weaver.” Brock also signed and delivered to the bank certain assignments of the commercial paper here in controversy. It is these assignments that plaintiff Crest contends are invalid.

Of the proceeds of the $957,000 purchase authorization of April 2, 1963, and by ledger entries, $600,000 was immediately used to offset the Westmont drafts for $600,000 given by Willard earlier that day to Niederberger. The remaining $357,000 was deposited in a checking account at the Westmont Bank entitled “Crest Finance Company,” by a deposit slip dated April 3, 1963. Of the $357,000 “Crest Finance Company” account at Westmont, $335,162 was used to pay personal obligations of Stickell, Weaver and Brock by cashier’s checks issued by the Westmont bank and offset by “Crest Finance Company” checks on its account at that bank, signed by “Lester A. Brock, President.” These transactions took place between April 4 and April 17, 1963. When the receiver took over the bank, the balance in the “Crest Finance Company” account of $20,520.73 was appropriated by the receiver.

Brock testified that between April 5 and April 22 or 23, 1963, he and Niederberger called on twenty various banks in an attempt to substitute Brock for Niederberger and eliminate Niederberger’s liability on the Crest bank loans. Niederberger introduced Brock in several ways: as the “new owner of Crest Finance,” as “the new President of Crest Finance Co.,” or as “the man who would be the new President of Crest Finance Co.” Niederberger denied that he introduced Brock as “the new President” of Crest.

The first bank to be visited was the Exchange National Bank. This was five days after the Brock-Niederberger deal and after the commercial paper or collateral had been delivered to Westmont. Brock had maintained a checking account at this bank for many years. At the Exchange National Bank arrangements were made by Brock and Niederberger for the renewal of a Crest loan in the amount of $100,000, endorsed by Niederberger personally and which was to fall due on April 8, 1963. The loan was renewed and the renewal note was signed by Niederberger, as president of Crest. Brock endorsed the new note personally. The note at the Exchange National Bank was the only Crest note renewed and extended by any bank during this particular period and before the Westmont bank was closed by action of State authorities.

On April 15 or 17, Brock and Niederberger met with Walter Stern, board chairman of the Irving Bank of Chicago. At that time, Brock told Stern that he had removed Crest collateral “for examination and audit.” He also told him that “. . . because of the time of the month here it was very difficult to get auditors to do any work at a time which coincided with filing of income tax returns; and that the collateral had been removed to the bank so it would be under our custody and we would have something in hand for the amount of money paid for Crest Finance Company.” Stern then told him that he had had a conversation with Mr. Willard of Westmont and that he (Stern) told Willard, “I am disturbed as to what is going on here, and I think you should—to me he said: T think you should be very disturbed, too,’ and ‘that I want the loan to my bank paid immediately.’ ”

On April 18, 1963, Brock paid to the Westmont Bank $135,000 for the release to Crest of an equivalent amount of paper. This left the Westmont Bank with $822,000 outstanding of the original $957,000 disbursed. The bank also had in its possession approximately $20,000 in the Crest Finance Company account, which was taken over by the receiver, leaving a net amount of about $800,000 wrongfully disbursed Westmont Bank funds.

On April 19, 1963, Niederberger’s attorneys sent a registered letter to Brock and the First State Bank of Westmont, “making formal demand upon this bank by special delivery letter for the immediate return of this collateral which is being held without any color of title.” No collateral was returned in response to the demand, and the instant suit was filed April 30,1963.

After the suit was filed, Niederberger continued to operate and manage Crest. Niederberger was never relieved of his personal guarantees to the banks for Crest’s indebtedness. On behalf of Crest, Niederberger collected $605,882.46 due on the commercial paper in controversy and held by Westmont, and applied this money to pay Crest’s bank loans. The collection was without the consent of Westmont or its receiver. This reduced Crest’s indebtedness and Niederberger’s exposure as guarantor.

The entire matter was referred to a master in chancery for hearing and “his conclusions of law and fact.” The master found for Westmont and against Niederberger and Crest on all issues. Also, the master found that Niederberger on May 16, 1963, caused to be formed the Pearson Securities Company and transferred Crest assets of about $750,000 (commercial paper) to the newly created corporation. The master further found that all of the capital stock of the Pearson Securities Company is owned by Niederberger, and that Niederberger “appears to have personally guaranteed the obligations of said Pearson Securities Company in order to enable Pearson to finance such transactions.” We note here that Niederberger, by the terms of the purchase agreement with Brock, “agrees not to engage in the finance business as an owner or principal in the City of Chicago for a period of three years.”

The decree entered confirmed and sustained the master’s report in all respects except that part of the report “wherein, in substance, said Master held that the equitable title to said shares of Crest Finance Company, Inc., purchased by Brock is now in the Intervenor as Receiver.” This left open the ultimate question of ownership of the stock.

Also, the decree found that the receiver of the defendant bank was entitled to retain possession of the commercial paper. Plaintiff Crest and third-party defendant, Leo Niederberger, were decreed to be jointly and severally liable to the receiver for the sum of $605,-882.46, collected by them on the collateral securities after the filing of the complaint and during the time the cause was on hearing before the chancellor.

On appeal, it is the theory of Crest and Niederberger “that there never was a valid sale of the disputed collateral to Westmont by anyone. Accordingly, neither Crest nor Niederberger is liable to Westmont [now the FDIC] for the $605,000 in payments Niederberger collected from the debtors of Crest and applied to Crest’s obligations.” In support of their theory, Crest and Niederberger contend: (1) Brock’s acts conferred no rights in Crest’s assets upon the bank. Brock had no actual or apparent authority to deal with Crest’s assets. (2) Westmont would be defrauding Crest’s creditors if it bought Crest paper from Brock. (3) The Bank of Westmont has no rights in Crest collateral under the “two innocent parties” rule.

Although Niederberger contends that he never parted with the legal or equitable title to’ Crest stock, he asserts that the partially performed purchase agreement should be completed and “as soon as Niederberger is relieved of his remaining $195,000 in personal guaranties, he should convey the Crest stock to whatever party is adjudged entitled to the purchaser’s rights under the Crest sales contract. Niederberger thus seeks only the benefit of his bargain with Brock and has always stood ready and willing to deliver the Crest stock as soon as his guaranties are relieved.”

The receiver’s theory of the case consists of two major propositions, each of which is independent of the other: “First: Where one of two innocent persons must suffer loss by reason of the wrongful acts of a third party, the rule is universal that the party who has made it possible, by reason of his negligence, for the third party to commit the wrong, must stand the loss. In this case Niederberger’s failure and the failure of other corporate officers, on the late afternoon of April 2, 1963, and on succeeding days, to take steps to put a stop to the transfer of securities from the Crest office to the Bank constituted such negligence. Second: That the transfer of the securities in controversy to the Bank was authorized by the person who was then the equitable owner of all Crest shares and in substance the owner of all the assets.”

The Receiver also contends that, in the event this decree should be reversed and the Receiver directed to deliver up the property in dispute to the plaintiff, “that under that decision the result would be the same as if Niederberger never sold his stock. He should then be directed to return to the Receiver the sum of $600,000. To grant the relief requested by reversing the decree below and to permit him also to retain the money that came to him from the Bank would permit his unjust enrichment. lie may not retain the purchase price and have control of the corporation and its assets in addition.”

Initially, we note “[wjithout regard to the findings of the master on any particular question of fact, the final question in this court is, Was the decree rendered by the court a proper one under the law and evidence?” Zilvitis v. Szczudlo, 409 Ill 252, 255, 99 NE2d 124 (1951).

After examining this record at length, we consider the determinative issue to be whether Brock acquired the legal or equitable title to Niederberger’s shares of stock in Crest. If Niederberger retained the legal and equitable ownership of his stock after the payment to him of $600,-000 by the Westmont Bank, Brock was without authority to sell and assign Crest’s commercial paper to the Bank of Westmont.

The offer to purchase agreement executed April 2, 1968, and the testimony of the parties show that Niederberger was to receive (1) $600,000, and (2) the “elimination” of his liability on his personal guarantee of Crest 'bank loans approximating $900,000. The $600,000 was paid by bank funds which did not belong to Brock at any time or in any fashion. The bank never loaned any money to Brock nor did it pay out any money in his behalf. The $600,000 came from the bank as part of the purchase price of a fictitious sale of commercial paper, details of which were completed after the $600,000 had passed directly from the bank to Niederberger.

The second part of Brock’s agreement called for the “elimination” of Niederberger’s liability on the $900,000 bank loans, and the unendorsed stock certificates were placed in escrow with Clorfene for future delivery by him to Brock. Delivery of the unendorsed stock was conditioned upon “written advice from Leo Niederberger that he has been released from all personal liability as guarantor of Crest Finance Co., Inc.”

As the transaction contemplated and provided for a future delivery of the stock, it should be deemed an executory contract of sale. In 30A CJS, Escrows, it is said:

Section 9:
“Until the performance of the condition, or the happening of the event, on which delivery is to be made by the depositary, the legal title to land to be conveyed by the instrument, or to other matter placed in escrow, remains in the grantor or depositor, and it is generally held that no title, estate, or interest vests in the grantee; . . .
“The general rule that title remains in the depositor has been applied to personal property generally, . . . and stock certificates.” (Pages 993, 994, 995.)
Section 10 states in part:
“Where an instrument is deposited as an escrow, it cannot become operative until the conditions on which it is deposited have been performed or the contingency agreed on has happened, .... [B]e-fore a grantee or obligee may assert any rights under an escrow contract, he must show that he has complied with the conditions of the escrow, ....
“Generally, courts hold the parties to an escrow agreement to a strict compliance with the terms and conditions imposed. The doctrine of substantial compliance generally is inapplicable to escrow agreements. A part performance has no effect on the status of the instrument; and entire performance of the condition is necessary.” (Pages 996, 997, 998.)

See, also, Corwin v. Grays Harbor Washingtonian, 151 Wash 583, 276 Pac 902, 903 (Wash, 1929), where it is said:

“There was no delivery of the stock to respondent, and under the circumstances the general rule applies that, in cases where the transaction contemplates or provides for a future delivery of the subject-matter thereof, it will ordinarily be deemed an executory contract of sale.”

We are aware of the basic equitable principle that equity regards as done that which ought to be done (Shay v. Penrose, 25 Ill2d 447, 449, 185 NE2d 218 (1962)), but we do not believe that principle applies here. This transaction manifests the intention of the parties to be that Brock was not to have ownership or title to the Crest stock until the happening of an event which never came to pass. We conclude that Brock had neither the legal nor equitable title to the stock here involved.

As Brock had no legal or equitable authority to or under the Crest stock, it follows that the meeting called by Brock of the purported Crest stockholders in the lobby of the bank at Westmont, and any action taken at the time by the purported stockholders, was a nullity. Therefore, the election of the new board of directors of Crest and the election of Brock as its president were nullities, also. Any documents, including the assignment of Crest’s commercial paper, signed by Brock as its president, were void and of no legal force and effect. The bank acquired no right of ownership to the commercial paper in controversy through any document or act of Brock. The bank took possession of the paper through a fraudulent conspiracy developed by the bank’s principal officers and directors. In turn, Niederberger had received $600,000 of the bank’s money as the result of a fraud on the bank, performed by its officers. In substance, no money was ever paid for the stock. The $600,000 was disbursed by Willard on behalf of Westmont to purchase commercial paper never validly assigned to the bank.

The scheme was a fraud on both Niederberger and the bank. Niederberger received $600,000 of fraudulently disbursed bank funds and was left obligated to pay off Crest bank loans of $900,000. The Crest commercial paper offsetting the bank loans was in the possession of the Westmont Bank, and without any obligation of Westmont to use the proceeds of the commercial paper to pay off the Crest bank loans. Niederberger stood to lose (1) $900,000: the $600,000 received by him from the Westmont Bank and $300,000 additional needed to pay off the balance of the $900,000 Crest bank loans; and (2) his Crest stock. Brock and his co-conspirators would have had (1) the $357,000 excess over the $600,000 bank funds paid to Niederberger; and (2) the Crest stock.

When the manipulations ended, Niederberger had $600,000 of the bank’s money, to which he had no legal or equitable title, and the bank had $900,000 of commercial paper, to which it had no legal or equitable title or right of possession. At that point, the practical solution would have been for Niederberger to return to the bank the wrongfully disbursed $600,000 and for the bank to return to Crest the commercial paper wrongfully taken from Crest by stealth and with void assignments. The subsequent events prevented this.

The present status of the bank and its officers and Brock makes it impossible to restore either the bank or Niederberger to their preagreement postures. The bank is in liquidation. Lester Brock, Lawrence Stickell and Norman Weaver have been found guilty in a federal court of conspiracy to defraud and misapply funds of the Bank of Westmont (United States v. Stickell, et al., No. 64CR84, ND Ill June 30, 1965). The indictment to which Brock and Stickell pleaded guilty, and on which Weaver was found guilty after trial, charged them with disbursing $600,000 fraudulently in the purchase of commercial paper and in making false ledger sheet entries to show deposit of $357,000 on April 5, 1963, in an account headed “Crest Finance Company,” when they “well knew said Crest Finance Company did not cause to be deposited with the First State Bank of Westmont on said date the sum of $357,000.00.”

Both sides cite the rule, “Where one of two innocent parties must suffer by reason of a wrongful act of another the one should bear it who made it possible for it to occur. . . . The basis of the rule is that there must be two innocent parties. The one who seeks the application of the rule must have used due diligence in the matter and exercised reasonable care to avoid the conditions which gave rise to the injury.” Alton Banking and Trust Co. v. Alton Bldg. & Loan Ass’n, 289 Ill App 177, 190, 6 NE2d 921 (1937); Bartlett v. First Nat. Bank of Chicago, 247 Ill 490, 93 NE 337 (1910); Decatur Lumber & Mfg. Co. v. Crail, 350 Ill 319, 183 NE 228 (1932).

Niederberger asserts that he is “an innocent party,” and that he “clearly acted reasonably and prudently, caused no harm or loss to anyone and is simply the victim of a confidence game. . . . Crest Finance Company is the lawful owner of the disputed collateral now in the possession of the Bank of Westmont; neither Leo Niederberger nor Crest Finance Company is liable to the FDIC for the $605,000 collected on the disputed collateral and paid to Crest creditors.”

The following remarks of the chancellor demonstrate that he was skeptical of Niederberger’s innocence or prudence during the period the commercial paper was being taken from the Crest Finance office by Willard:

“Here is Willard holding the keys to the vault or the files. Here is Willard going right through it. Here is Willard removing them, taking them out, taking them over to the bank; giving a receipt for what they have taken out, which shows they had purchased the particular securities for which Niederberger to protect himself had a right to get a receipt. There is no question in my mind at all. Niederberger came to about the 18th or 19th of April and that was after the bank examiners got there—and got busy.”

The receiver asserts that Niederberger was and is an experienced banker, and he “knew that the possession of these securities by cmy bank would be, and was, in direct violation of that condition which he describes by the phrase ‘verbal pledge.5 Yet, neither in the late afternoon of April 2, 1968, nor in the ensuing two days, while Willard was transferring securities to the Bank, did Niederberger do anything to put a stop to the transfers to the Westmont Bank. Niederberger’s explanation is that he thought that the papers being transferred were ‘credit files.5 The uncontradicted evidence is that there were deposited in the Crest files, papers signed by Willard, on behalf of the Bank, which were receipts for securities taken.”

The receiver argues that where a prejudicial situation has resulted from a wrongful act of a third person, the decision must be against that party whose conduct made possible the wrongdoer’s act, breach of trust, fraud, or negligence (Equity, 19 Am Jur § 483, p 335), and that “when one of two innocent parties must suffer loss by reason of the wrongful acts of a third party, the rule is almost universal that the party who has made it possible, by reason of his negligence, for the third party to commit the wrong must stand the loss.” Bartlett v. First Nat. Bank of Chicago, 247 Ill 490, 498, 93 NE 337.

The receiver also contends that a corporation is not charged with the knowledge of its officers and agents where the latter are engaged in committing independent fraudulent acts adverse to the corporation upon their account, and in support cites Fletcher’s Cyclopedia, Corporations (1965), Vol 3, § 826, p 141, where it is said:

“One well-established exception to the rule that a corporation is charged with knowledge of its officers and agents, is where the latter are engaged in committing an independent fraudulent act upon their own account and the facts to be imputed relate to such fraudulent act.”

Our view of the instant cause does not require that we determine the innocent party status of either Niederberger or the bank. The pre-agreement status quo should be restored insofar as it is practical. Niederberger has possession of $600,000 bank funds fraudulently disbursed to him. The receiver or bank had possession of $900,000 in commercial paper wrongfully assigned and delivered to it. Of the amounts due on the paper in the possession of Westmont, Niederberger collected and paid out $605,000. The balance of the paper has been, by the bank or the receiver, reduced to cash by collection or is still in the possession of the receiver. In either event, the paper or its proceeds should be returned to Crest, and Niederberger should return to the receiver the $600,000 bank funds wrongfully disbursed to him.

If it is not possible to return to Crest the balance of the paper or its proceeds, the amount due to be returned by Niederberger should be reduced in proportion. Also, as the record indicates that the instant fraudulent scheme was activated by conspirators not parties to the instant cause, the costs of the litigation should be borne equally by the plaintiff, Crest Finance Company, and the defendant bank, and we so direct.

For the reasons given, the decree appealed from is reversed and the matter is remanded for. further proceedings in accordance with the views expressed herein.

Reversed and remanded.

KLUCZYNSKI, P. J. and BURMAN, J., concur.