text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sherman Greene, Defendant-Appellant.
    Gen. No. 51,406.
    First District, First Division.
    February 19, 1968.

      Block, Levy & Becker, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, James B. Zagel, Daniel Weil, and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Sherman Greene, was charged and convicted of the crime of Deceptive Practices and sentenced to nine months imprisonment after a trial by jury.

On appeal, the defendant contends that the complaint failed to allege the commission of a crime in that it failed to allege an “intent to defraud,” and, therefore, is void and subject to attack for the first time on appeal. He further contends that the State knowingly and corruptly allowed perjured testimony to be used by its principal witness in obtaining the conviction of the defendant.

The record reveals that on August 10th, 1964, a complaint was filed against the defendant in the 2nd Municipal District of the Circuit Court. The complaint alleged that the defendant had committed the offense of “Deceptive Practice in that he with intent to obtain control over §124.26, the property of Kroger Company, an Ohio Corporation, issued a check numbered 319, drawn on The First National Bank & Trust Company of Evanston, Illinois, for payment of said money, knowing that it would not be paid by said bank in violation of Chapter 38, Section 17-1 (d) Illinois Revised Statute.”

This section reads as follows:

A Person commits a deceptive practice when:
(d) With intent to obtain control over property, or to pay for property, labor or services of another, he issues or delivers a check or other order upon a real or fictitious depository for the payment of money, knowing that it will not be paid by the depository. Failure to have sufficient funds or credit with the depository when the check or other order is issued or delivered is prima facie evidence that the offender knows that it will not be paid by the depository.

On May 21, 1965, the defendant was found guilty as charged by a jury, and on June 9, 1965, he was sentenced to a nine-month term at the Vandalia State Farm. On April 5, 1966, the defendant’s appeal was dismissed for want of prosecution in this court.

On May 4, 1966, the defendant filed a petition in the Municipal Court Division of the Circuit Court in the nature of a writ of error Coram Nobis pursuant to chapter 110, section 72 of the Illinois Revised Statutes. In this petition the defendant alleged that his conviction was obtained upon the perjured testimony of one Norman Deletzke, Jr., an accomplice witness, who was a codefendant and never prosecuted. It was further alleged that Deletzke falsely testified that no promise of leniency had been made to him by the prosecution in exchange for his testimony against the defendant; and that the State, through its knowing use of the aforementioned perjured testimony, had deprived the defendant of due process of law, and he prayed for a new trial. On May 11, 1966, the defendant filed an alternative petition as an amendment to his previous petition in which he claimed that the complaint under which he had been convicted contained no allegation that his conduct was done with “intent to defraud” and, therefore, was null and void as a matter of law, and subject to collateral attack at any time. He prayed that his conviction be set aside and held for naught.

We shall first consider the contention by the State that a faulty indictment may not be attacked for the first time in a proceeding brought under section 72. The State argues that the right to challenge the complaint was lost when defendant’s appeal was dismissed in this court for want of prosecution.

We are of the opinion that the failure to charge a public offense in a complaint or indictment is a defect that may be attacked at any time in this court even though the point was not raised in the trial court or on the first appeal. We further point out that although a motion under section 72 was not the only method available for calling to the court’s attention the failure of the complaint to allege a criminal offense, that section is an appropriate method for attacking errors of law apparent on the face of the record. Collins v. Collins, 14 Ill2d 178, 151 NE2d 813. The trial court is not authorized to convict a person who has not been charged with a violation of the criminal law. People v. Minto, 318 Ill 293, 149 NE 241.

There is no question but that in the instant case the complaint charged an offense in the language of Illinois Revised Statutes, 1963, chapter 38, section 17-1 (d). The defendant argues, on appeal, however, that merely alleging the offense in the language of the statute was not sufficient to charge him with the commission of a crime because the legislature in passing section 17-1 (d) had not intended to alter the elements of the crime of deceptive practices as defined by section 255, the predecessor to 17-1 (d). The defendant further contends that since section 255 had included “intent to defraud” as an essential element of the offense of deceptive practices, a complaint under section 17-1 (d) must allege said intent, and, therefore, a complaint which fails to do so is fatally defective and void.

The defendant’s contentions are strongly supported by the case of People v. Billingsley, 67 Ill App2d 292, 213 NE2d 765 (1966). In Billingsley the defendant was convicted of passing a worthless check, a deceptive practice under section 17-1 (d). In reversing the conviction the Appellate Court held that the complaint was fatally defective, and subject to attack for the first time on appeal, because it failed to allege a necessary element of the crime attempted to be charged, namely, an “intent to defraud.” The court further held that the legislature in passing section 17-1 (d) had intended to include an “intent to defraud” as an essential element of the offense set out therein, and that a complaint alleging a violation of section 17-1 (d) must set out an “intent to defraud” or be declared fatally defective and void.

The State admits that this case is in point, but urges that we reject the opinion of the Court in Billingsley. We are not so inclined. We consider the Billingsley opinion to be well reasoned and precisely in point.

A result similar to that in Billingsley was reached in People v. Samples, 80 Ill App2d 182, 224 NE2d 284 (1967). In that case the defendant’s motion to dismiss a complaint under section 17-1 (d) because it failed to allege an intent to defraud was sustained and the State appealed. The Appellate Court, in affirming the dismissal of the complaint, closely followed the reasoning of the court in Billingsley, while rejecting the contention of the State that the holding in Billingsley had been incorrect:

Neither can we say that the Legislature when they codified the former “bad check” section (Sec 255, Ch 38 Ill Rev Stats 1961) by the adoption of Sec 17-1 (d) intended to eliminate the previously essential element of “intent to defraud” even though they did not include those specific words in the codification. Had they intended to alter the essential element of the crime, the resulting Sec 17-1 (d) would not have been a codification of the former Section 255, as it is stated to be in the Committee Comments, but would describe a different crime with different essential elements. (80 Ill App2d at page 186.)

The State argues that ordinarily a criminal complaint is sufficient which charges an offense in the language of the statute defining the offense. Prior to the enactment of section 111-3 (a) of the Criminal Code an offense was usually charged either in the language of the statute or by specifically setting forth the facts constituting the offense. See People v. Barnes, 314 Ill 140, 145 NE 391. However, as pointed out by the court in Billingsley, “Where . . . the statute does not describe the acts which constitute the crime, or where, by its generality, it may embrace acts which the statute does not intend to punish, a charge solely in the language of the statute is not then sufficient.” 67 Ill App2d at pages 298-299. (Citations omitted.)

We have concluded that the complaint in the instant case did not set forth the nature and elements of the offense charged, as required by subparagraph (3) of section 111-3(a), in that it did not allege an “intent to defraud,” an essential element of the offense of deceptive practices as defined in section 17-1 (d). An “intent to defraud” is an essential element of the crime of issuing or delivering a check for payment of money, knowing it will not be paid by the depositary. Therefore, the complaint was fatally defective and the judgment entered on the verdict is reversed. People v. Minto, 318 Ill 293, 149 NE 241. We need not consider the other contentions raised by defendant.

Judgment reversed.

ADESKO and MURPHY, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE ADESKO

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee v. Melvin Daniels, Defendant-Appellant.
    Gen. No. 51,963.
    First District, First Division.
    February 19, 1968.

      Floyd N. Nadler, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Melvin Daniels, the defendant here, and one George Sims were indicted for murder. Represented by private counsel, Daniels moved for a severance, which was granted. He was found guilty in a bench trial, however, the trial judge granted defendant a new trial. A Chicago Bar Association lawyer was appointed to represent defendant in the second trial, where he was again found guilty by a second judge sitting without a jury. Daniels was sentenced to not less than fifty, nor more than fifty-five years in the penitentiary. Defendant’s brief raises the following points on appeal:

(1) Error in admitting into evidence the declaration of a codefendant;
(2) Error in admitting into evidence testimony of Florence Davis, such testimony being hearsay;
(3) That the State did not prove its cause beyond a reasonable doubt; and
(4) That the trial court erred in expecting defendant to assume the burden of proof and prove his innocence beyond a reasonable doubt.

George Lemon, the deceased, was a special employee of the Chicago Police Division of Narcotic Control. Lemon participated in a controlled purchase of narcotics from Daniels and that transaction was the basis of an indictment charging Daniels with unlawful sale of narcotics. The trial of the narcotics case was set for February 28, 1961, at which time Lemon was to appear and testify against Daniels.

One of the State’s witnesses was Clarence Murphy. He testified that he met Lemon very late on Sunday evening, February 26, 1961. Together they went to the apartment building where defendant lived and Murphy went upstairs to get defendant. Murphy, Lemon, one Howard Sims, and defendant, then went to a restaurant for a bite to eat. This was about 12:30 a. m. on Monday. Sims, Lemon and defendant went into the restaurant while Murphy remained in the car. After eating, the four men drove back to defendant’s apartment. Sims and defendant went upstairs and returned five or ten minutes later. The four men drove off again. Murphy got out of the car about one block away from the apartment. Sims, Lemon and defendant proceeded on.

Sims, who later testified for the State, and defendant, who testified on his own behalf, confirmed Murphy’s testimony with respect to going to get something to eat shortly after midnight on February 27, 1961. Sims corroborated Murphy’s story that the foursome returned to defendant’s apartment. Sims and defendant went upstairs and returned and then dropped Murphy off about one block from the apartment.

Sims further testified that when he and defendant returned to the apartment, defendant gave him a .32 caliber pistol. After dropping Murphy off, the remaining threesome drove on. They stopped at a place called the Silver Dollar. Lemon and defendant went inside and upon returning about 25 minutes later, Lemon was eating popcorn. The two got back into the car and Sims started driving again. Defendant put a gun to Lemon’s head and ordered Sims to keep driving. When the group reached Evergreen Park, defendant and Lemon got out of the car and walked away. Sims heard three or four shots. Defendant returned to the car without Lemon and Sims drove back to the apartment. Upon returning to the apartment, Sims told one Florence Davis what had happened. Defendant, meanwhile, dismantled the gun and wrapped it in a scarf. Sims and defendant went out again and disposed of the gun by throwing it off a bridge into the river at 31st and Western.

Lemon’s body was found by the Evergreen Park Police at about 6:00 a. m., on February 27, 1961. In an investigation of the area where the body was found, the officer found four discharged casings of bullets from a .32 caliber gun. In Lemon’s clutched hand, the police found an empty popcorn bag. The police had been notified by a newspaper delivery boy, who while on his morning route, found the body. A resident of that neighborhood testified that he had heard some shots at about 3:00 a. m.

Florence Davis lived in the same building as defendant. She saw defendant and Sims together at the apartment building late Sunday night, February 26, 1961, and testified that they left the building about 12:00 a. m., Monday. About an hour and a half later, they returned. Defendant and Sims were there for about 15 minutes. During this short period of time, Miss Davis had the first of two conversations with Sims. The admission of the contents of the coversation into evidence, defendant charges, was error. According to Florence Davis, Sims told her that he and defendant were “getting ready to go off George Lemon.” “Off” is slang for the word kill. She then saw defendant remove a gun from a drawer and leave with Sims.

At about 5:00 a. m., on the same morning, Sims and defendant returned to the apartment. Sims had the second conversation with Miss Davis which was also admitted into evidence. Miss Davis testified that Sims told her that he and defendant “had just killed, took George Lemon and killed him.” Sims also told her they were going back out to dispose of the gun. Sims wrapped it up in a rag of some sort and the two men then left the apartment.

Defendant testified on his own behalf. He admitted that he was with Sims, Murphy, and Lemon during the early morning hours of February 27, 1961, and that the group went to a restaurant for something to eat. Murphy left the group about one block from defendant’s apartment; Lemon asked to be driven to the Silver Dollar where he left the group; Sims asked to be dropped off at 55th and Wentworth and defendant obliged him. Defendant then returned to his apartment. He denied Sims’ account of the evening’s events.

With respect to defendant’s argument that the State did not prove its case beyond a reasonable doubt, he argues that the sole evidence implicating him to the murder was the contradictory testimony of Howard Sims. The testimony of Florence Davis is also attacked as being inconsistent and that she was impeached by her own mother.

Defendant cites the case of People v. Zaeske, 67 Ill App2d 115, 213 NE2d 577 (1966), for the proposition that Sims’ testimony alone is insufficient to convict, because Sims was expecting to be rewarded for turning State’s evidence. (The charge of murder against Sims was nolle pressed.) In Zaeske the court states that testimony of an accomplice may be sufficient to convict if “it carries with it absolute conviction of the truth.”

Disregarding for the moment the testimony as to Sims’ statements of the plans to kill George Lemon, there is ample evidence to corroborate Sims’ story. Florence Davis testified that defendant left his apartment with Sims shortly after midnight. Clarence Murphy corroborated this testimony as to time and testified that he, together with Sims, George Lemon and defendant, went to a restaurant. Defendant himself admits this aspect of the case. Murphy further testified that Sims and defendant returned to the apartment. Florence Davis stated that when defendant returned to the apartment it was about 1:30 a. m. She observed defendant taking a gun and leaving the apartment. Murphy testified that Sims and defendant drove off with George Lemon.

Sims’ testimony that Lemon stopped to get some popcorn is corroborated by the fact that an empty popcorn bag was found in the deceased’s hand. Sims also testified that he heard 3 or 4 shots and the police found four expended shell casings at the scene of the murder. The time of the murder was placed at about 3:00 a. m., and this corresponds with the passage of time as revealed by the testimony of Sims.

After defendant returned to his apartment, Florence Davis observed him dismantling a gun and then leaving with it wrapped up in a rag.

Upon reviewing all the above testimony, it reveals a consistent and logical sequence of events during the early morning hours of February 27, 1961, and a finding of guilty predicated upon such evidence was proper.

We are well aware that Davis, Sims and Murphy were all narcotics addicts and in trouble with the police. But this does not require us to reject their testimony. People v. Drumwright, 48 Ill App2d 392, 199 NE2d 282 (1964). The trial judge felt that the story they told was credible and, in light of the instant record, we do not disagree.

In reviewing the evidence, the trial judge commented that the defendant “knew something about what happened (but) when he took the stand, he didn’t explain what he knew about it.” Defendant argues that this was requiring him to prove his innocence. Upon reviewing the record we find several comments by the trial judge which clearly indicate that he was not relieving the State of its burden to prove defendant guilty beyond a reasonable doubt. The trial judge had this standard firmly in mind throughout the course of the trial and in view of this record the quoted comment was not improper.

The other two allegations of error relate to the admission into evidence of the statements of Sims to Florence Davis. It is clear that such statements were hearsay, but they were admissible in evidence as statements of a coconspirator. Both Sims and defendant participated in a plan to kill George Lemon. In furtherance of that plan, they returned to defendant’s apartment, after leaving a restaurant with Lemon, and procured a gun. At that time Sims stated they were going out to kill Lemon. When Sims returned to the apartment some 3% hours later, he said they had accomplished their purpose and were going out again to dispose of the gun.

Verbal expressions of one conspirator in furtherance of, accompanying, or explaining other acts of a plan or common design are admissible in evidence as an exception to the hearsay rule. People v. Pavluk, 386 Ill 492, 54 NE2d 567 (1944); Samples v. People, 121 Ill 547, 13 NE 536 (1887). The fact that conspiracy is not charged in the indictment does not change the rule. People v. Niemoth, 409 Ill 111, 98 NE2d 733 (1951), US certiorari denied 344 US 858 (1952). The two statements of Sims were clearly explanatory, first, of the fact that he and defendant were leaving the apartment with a gun and second, their reasons for dismantling the gun, wrapping it up in a rag and going out again. We find no error in the admission of such statements into evidence.

Defendant relies on the case of People v. Tunstall, 17 Ill2d 160, 161 NE2d 300 (1959). The statements made in the Tunstall case were made to a police officer at the time of arrest. Thus, they do not fall within the exception to the hearsay rule which allows statements in furtherance of a conspiracy into evidence. Furthermore, in Tunstall, the error was committed when the jury was not instructed that the statements were being used only to effect the credibility of the witness who made the statements.

For the foregoing reasons, the judgment of the Circuit Court of Cook County, Criminal Division, is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE MURPHY

text:
    Highway Insurance Company, a Stock Company, and Elvin Erkard, Plaintiffs, Elvin Erkard, Plaintiff-Appellant, v. Sears, Roebuck and Company, a Foreign Corporation, and James Staunton, Defendants-Appellees.
    Gen. No. 52,234.
    First District, First Division.
    February 19, 1968.

      Howard & Gager, of Chicago (Ollie E. Stone, of counsel), for appellant.
    Arnstein, Gluck, Weitzenfeld & Minow, of Chicago (Burton Y. Weitzenfeld and Michael R. Turoff, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action, in which plaintiff, Elvin Erkard, appeals from a summary judgment entered in favor of defendants. Defendants’ motion for summary judgment alleged that at the time of the alleged injury, plaintiff was “a loaned employee” of defendant Sears, Roebuck and Company, and Nugents-American Contractors, Inc., was “a loaning employer,” and that the action was barred as to both defendants by the Illinois Workmen’s Compensation Act (Ill Rev Stats 1965, c 48, §§ 138.-1(a) 4 and 138.5(a)).

The trial court, in granting defendants’ motion for summary judgment in favor of both defendants, found there was no issue of a material fact and that the guidelines of American Stevedores Co. v. Industrial Commission, 408 Ill 449, 97 NE2d 325 (1951), were applicable.

On appeal, the determinative issue is whether, under the undisputed facts here, plaintiff was “a loaned employee” of Sears as a matter of law. Plaintiff contends that there was a material issue as to whether the relationship of master and servant existed between plaintiff and Sears, because Sears did not have the power to discharge plaintiff and, also, the determination of the relationship of master and servant was a question of fact for a jury.

Nugents-American Contractors, Inc., was in the business of supplying temporary labor to various firms. On May 31, 1963, plaintiff was instructed by Nugents to report to Sears and was told to do whatever Sears personnel told him to do. At Sears, plaintiff was instructed to work with and under the direction of defendant Staunton, a Sears’ employee. Staunton told plaintiff what to do, how and when to do it, his working hours, when he could eat lunch and when he could take a break. During that day, plaintiff was injured in the course of his work by a lift truck driven by defendant Staunton.

Nugents was paid under a contract by Sears and out of the contract proceeds Nugents paid the men supplied to Sears, including plaintiff, an hourly wage for the hours reported to it by Sears for work done on its premises. Nugents made income tax withholding deductions and social security deductions from the men supplied to Sears, including plaintiff. Plaintiff’s work procedure with Nu-gents was that he would report either in person or by telephone to Nugents, and they would direct him where he was to work on that particular day.

An affidavit of Nugents’ comptroller states that after plaintiff reported to Sears for work, Sears “had the direction and authority over the work of said Elvin Erkard while he was so engaged on their premises. That said Sears, Roebuck and Company, had the right to direct said employee to report back to Nugent’s American, in the event they deemed it necessary or desirable.”

Defendants contend that the factual situation in American Stevedores Co. v. Industrial Commission, 408 Ill 449, 97 NE2d 325, is similar, and the pronouncements there made apply here. In that case, American Stevedores was engaged in the business of furnishing laborers to warehouses and sent some of its men, with a straw boss, to Frigidaire Sales Corporation. There they were placed at work under his direction and subject to Frigidaire’s instructions. The superintendent of Frigidaire under their arrangement had no power to discharge the men individually, but if he was dissatisfied with any man, he would indicate this to the straw boss, who would immediately telephone Stevedores and have another man sent to the job. The initiation of discharging men came from Frigidaire. Time slips were prepared by Frigidaire and delivered to Stevedores, who paid the men. One of the Stevedores, men so employed at Frigidaire was fatally injured by a mobile hoist operated by a Frigidaire employee. The Industrial Commission found that the injured man was not an employee of Frigidaire. The trial court made a finding of joint employment and ordered Stevedores and Frigidaire to each pay one-half of the amount of workmen’s compensation fixed by law. In affirming the order of the trial court, the Supreme Court said (pp 453-454) :

“At common law an employee in the general employment of one person may, with his consent, be loaned to another for the performance of special work and become the employee of the person to whom he is loaned while performing such special service, and this principle of law has been applied to workmen’s compensation cases. ... It is said that the test to determine whether the injured person is the employee of the general employer, or of the special employer, is whether the master has resigned control of the servant for the time being, in a work in which the servant was engaged at that time.”

Also, on pages 455-456:

“There being no dispute about the facts, it becomes a question of law to be determined whether they come within the principle of loaned employees, as a matter of law and not as a matter of fact. “Determining the question involved is not one so simple as deciding whether the employee receives his money directly from the company for which the work is being done, or through another. The question is, is he doing an essential part of the work under the control of the particular employer? The details of the manner in which it is accomplished are immaterial. In the instant case Bagdonas was requested by the operator of the hoist to assist him. While these men came to the Frigidaire plant under the directions of the straw boss, the personnel of Frigidaire told them what to do, either directly or through the straw boss, and they followed the directions thus given.
“The evidence shows the principal purpose of the straw boss was to collect the time checks, and transport the men back and forth, and relieve Frigidaire of employees whose work did not suit. We think this is a case which comes clearly within the so-called ‘loaned employee’ rule, whereby the borrowing employer becomes liable as an employer under the Workmen’s Compensation Act in case of death or injury.”

Plaintiff contends that American Stevedores was overruled by Gundich v. Emerson-Comstock Co., 21 Ill2d 117, 171 NE2d 60 (1961), and that the pronouncements of Gundich are controlling here.

In Gundich v. Emerson-Comstock Co., the plaintiff was an employee of a general contractor engaged in construction work. A coemployee of the plaintiff was signalling a crane operator in the movement of steel beams when the plaintiff was injured. The crane operator was employed by defendant Emerson-Comstock Co., and it made the contention that the crane operator, at the time of the occurrence, was an employee of plaintiff’s employer under the “loaned servant” doctrine. The Supreme Court, in reversing a judgment for the defendant, said (p 123):

“. . . we recognize that the criteria reiterated in the Illinois case law for the existence of the master-servant relationship is the right to control, which includes the power of discharge. . . . We also recognize that where an employee is sent by his general employer to another for the performance of special work, the test whether he becomes the employee of the person to whom he is sent depends upon whether he becomes wholly subject to that person’s control and freed during such time from the direction and control of his master. (Merlo v. Public Service Co. of Northern Illinois, 381 Ill 300.) This presents a question of fact for the jury, which must weigh such factors as the matter of hiring, the mode of payment, the right to discharge, and the manner of direction of the services.”

Plaintiff also cites the comments on the Gundich opinion made in Angerstein, Illinois Workmen’s Compensation, Vol 1, 1962 Pocket Part, pp 56-57, where it is said:

“In Gundich v. Emerson-Comstock Co., 1961, 21 Ill 2d 117, 171 NE2d 60, in a well-reasoned and comprehensive opinion in which reference was made to numerous supporting authorities, the court fortunately and correctly recognized the criteria reiterated in the Illinois case law that for the existence of the master-servant relationship there must be the right to control, which includes the right to discharge. tt • * •
“The court’s clarifying and scholarly opinion in the cited case was long overdue because in American Stevedores Co. v. Industrial Commission, 1951, 408 Ill 449, 97 NE2d 325 and also in Henry v. Industrial Commission, 1952, 412 Ill 279, 106 NE2d 185, the court chose not only to ignore the right to discharge test of the employer-employee relationship but also chose to substitute its judgment for that of the Industrial Commission on questions involving the employer-employee relationship. U
“It is interesting to students of law to note that in the Henry case the court attempted to justify its decision by reference to the American Stevedores Co. case; also, it is of significant interest that in the cited Gundich v. Emerson-Comstock Co. case where the applicable rules of law were correctly stated, no reference was made to either Henry or American Stevedores Co. This omission is quite understandable because reference to the two cases would not have been at all helpful to the court in arriving at the correct conclusion except possibly to illustrate legally unsupportable conclusions.”

Plaintiff argues that defendants in their brief attempt to “grant unto themselves the power to fire Erkard.” Plaintiff asserts that the only palpable evidence upon this point in the record (plaintiff’s counteraffidavit) states:

4. That no one but Nugents American Contractors, Inc. had the right to discharge or fire him [plaintiff].”

Plaintiff further argues that section 138.1 (a) 4, which provides that the liability of loaning and borrowing employers for workmen’s compensation benefits shall be joint and several, was intended “only to provide that an injured workman receives benefits under the Workmen’s Compensation Act. . . . and if the borrowing employer does not pay the benefits, the loaning employer shall pay them.”

We are not persuaded, as asserted by plaintiff, that the Gundich case “in effect overrules the American Stevedores case.” The operative facts were not similar. Our conclusion is supported by pronouncements made in Raymond Concrete Pile Co. v. Industrial Commission, 37 Ill2d 512, 229 NE2d 673 (1967), where it is said (p 516):

“In identifying the employer of a loaned employee the dominant circumstance has been the right to control the manner in which the work is to be done. (See e. g. American Stevedores Co. v. Industrial Com., 408 Ill 449, 454; Fransen Construction Co. v. Industrial Com., 384 Ill 616; Allen-Garcia Co. v. Industrial Com., 334 Ill 390.) Stated in more abstract terms, the most significant inquiry has concerned the extent to which the loaning employer delegated to the borrowing employer the right to control the manner of doing the work. Often the determination must be made on the basis of inferences from evidence that bears only indirectly upon that issue. In this case the evidence bears directly upon the issue, but it will support conflicting inferences.”

Applying the guidelines of American Stevedores and Raymond Concrete Pile Co. to the instant situation, the undisputed facts show no conflicting inferences and present a question of law not a question of fact. Nugents had resigned full control of plaintiff for the time being, and plaintiff was doing all of his work under the direction and control of Sears. Although Nugents was the selecting agency to pick the men and the conduit through which the men were paid, it is undisputed and clearly appears that Sears had “the right to terminate the relationship,” (Merlo v. Public Service Co., 381 Ill 300, 319, 45 NE2d 665 (1943)), and to direct plaintiff to report back to Nugents in the event Sears deemed it necessary or desirable. We conclude that the Sears right of dismissal of plaintiff from their work was the equivalent of the “right to discharge.”

As there was no genuine issue as to any material fact but a question of law only, the trial court was correct in entering summary judgment for defendants, and the instant judgment appealed from is affirmed.

Affirmed.

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


text:
    Alvin P. Herman, et al., on Behalf of Themselves and Other Clients of Alvin P. Herman and Theodore Tannebaum, Who Have Claims Pending Against Assureds of Prudence Mutual Casualty Company, and Alex Cason, Plaintiffs-Appellants, v. Prudence Mutual Casualty Company, George F. Barrett, Urban Service Bureau, Inc., and William Warren, Defendants-Appellees.
    Gen. No. 52,644.
    First District, First Division.
    February 19, 1968.
    Rehearing denied March 18, 1968.

      Ronald L. Cohen, of Chicago (Terrence F. MacCarthy, of counsel), for appellants.

      Carey, Filter, Murray & White, and Schaller, Reilly & Cassidy, of Chicago (James C. Murray and Robert P. Freeman, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a three-count complaint seeking injunctive relief and damages, plaintiffs alleged that defendants conspired to induce breaches of 92 of plaintiffs’ attorney-client relationships and procure fraudulent settlements in personal injury claims pending against assureds of defendant insurance company. The trial court sustained defendants’ motion to strike and dismissed the complaint.

Plaintiffs, asserting a substantial constitutional question, appealed directly to the Supreme Court, which found it had no. jurisdiction on the direct appeal and transferred the cause to this court. From this we presume the Supreme Court determined either that no constitutional questions were involved or that they were not material to the disposition of the appeal. City of Chicago v. Berg, 48 Ill App2d 257, 199 NE2d 49 (1964).

Substantially, the issue on appeal is whether the complaint states a cause of action to show that defendants entered into a conspiracy among themselves to interfere wrongfully and maliciously with contractual rights and fraudulently induce clients of plaintiffs, Herman and Tannebaum, lawyers, to breach their contracts.

In sum, the allegations of the complaint show that plaintiffs, Herman and Tannebaum, are lawyers, and the other plaintiffs are their clients who have pending claims against assureds of defendant Prudence Mutual Casualty Company.

Defendant Barrett, a lawyer and a director of Prudence, is primarily engaged in defending claims asserted against persons insured by Prudence. Defendant Urban Service Bureau, Inc., is an Illinois corporation engaged in the adjustment and settlement of claims for insurance companies and attorneys. Defendant Warren, not a lawyer, is employed by Prudence, Barrett and Urban to adjust, settle and investigate accident claims.

Count I of the complaint is brought by Herman and Tannebaum. It alleges the undertaking by these plaintiffs, under attorney-retainer employment contracts, to represent some 92 persons with claims against the assureds of Prudence, and the filing of lawsuits in 43 of these cases. In each of these claims, Herman and Tannebaum “sent or caused to be sent to each of the respective defendants, in all cases Prudence’s assureds, a Notice of Attorneys’ Lien .... All said Notices of Attorneys’ Liens were forwarded to Prudence and Barrett,” and in all these claims, Herman and Tannebaum, “as attorneys for the claimants and plaintiffs, [have] discussed and attempted to negotiate settlements of said claims with Prudence and Barrett.”

Paragraph 25 of the complaint alleges that following the entry of a verdict against an assured of Prudence in a suit in which the plaintiff was represented by Herman and Tannebaum, “Prudence and Barrett have conspired and are presently conspiring among themselves and with Urban and Warren to maliciously, unethically and illegally defraud Herman’s clients into prematurely releasing their claims against Prudence’s assured without advice of counsel and the opportunity of a trial.”

Paragraph 26 alleges:

“Urban and Warren have made and are presently making attempts to contact, and have contacted, either personally, by letter, telephone or other means of communication, all of Herman’s clients who are party plaintiffs to this suit.”

Paragraph 27 alleges:

“In furtherance of this conspiracy, Prudence and Barrett have furnished and made available to Urban and Warren the names and addresses of Herman’s clients and the nature of the claims involved.”

Paragraph 30 alleges:

“At the time of and since contacting Herman’s clients, Prudence, Barrett, Urban and Warren, pursuant to and in furtherance of their conspiracy, have:
“(a) Maliciously and fraudulently attempted to induce, are presently inducing or have in-induced or otherwise purposely caused Herman’s clients to discontinue their business relationships with Herman;
“(b) . . . caused Herman’s clients to breach or terminate their respective contracts with Herman;
“(c) . . . interfered with Herman’s occupation and business expectancies and Herman’s clients’ claim expectancies;
“(d) Participated in the unauthorized practice of law in violation of Chapter 13, Section 1, Illinois Revised Statutes (1965);
“(e) Violated the Canons of Professional Ethics of the Illinois State Bar Association, specifically Canon 9 thereof, which reads as follows:
“ ‘A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.’ ”

In Count II, plaintiffs Acino and Lindsey, individually and as representatives of 92 persons who have contractually employed and retained Herman to prosecute or settle their claims against assureds of Prudence, adopt the allegations of Count I as a class action.

In Count III, plaintiff Cason alleges that he had a claim against an assured of Prudence and employed Herman to prosecute the claim, and that Warren made contact with him and, relying on the false representations of Warren, Cason accepted the sum of $100 and signed a release tendered to him by Warren. The date and details of the transaction are set forth.

The prayer of the complaint is that the court declare malice to be the gist of the action, that a temporary writ of injunction issue against the defendants, and that they be enjoined “from contacting, writing to, speaking with or in any way communicating with clients of Attorneys, Alvin P. Herman and Theodore Tannebaum,” and that “plaintiffs be awarded and have judgment as actual damages any and all sums lost or expended by said plaintiffs as a result of defendants’ conduct as alleged in this Complaint, which sums are presently unknown to all plaintiffs or not yet ascertained, but which sum in the aggregate exceeds $2,000.00,” and also that plaintiffs be awarded “punitive or exemplary damages against defendants in the amount of $250,000.00.”

Exhibits attached to the complaint and made a part thereof include copies of letters plaintiffs Acino and Lindsey received from defendant Warren in regard to the settlement of their claims, and a list of the members of the class of persons suing as plaintiffs in Count II.

On appeal, defendants concede “that a trial court can grant relief for fraudulent and malicious conduct re-suiting in the interference with contractual and other rights without violating constitutional guarantees of freedom of speech.” However, defendants maintain that their motion to strike and dismiss the complaint was sustained for the following reasons: (1) the complaint is insufficient to state a cause of action; (2) the complaint seeks to enjoin the exercise of constitutional rights; (3) the complaint is multifarious and improperly joins parties plaintiff; and (4) the plaintiffs have an adequate remedy at law.

Defendants contend that a cause of action based upon the tort of malicious interference with contractual relationship must contain four essential elements: (1) defendant’s knowledge of the existing contract; (2) the inducement; (3) the breach by the third party; and (4) damage to the plaintiff. (Northern Ins. Co. of New York v. Doctor, 23 Ill App2d 225, 161 NE2d 867 (1959).) Defendants maintain that three of the essential elements, (1) inducement, (2) breach, and (3) damage, are missing in the instant complaint. Defendants state that the complaint does not contain any allegation “that either of the instant defendants induced any client, either named as plaintiff or unnamed, of the plaintiff attorneys to terminate the attorney-client relationship or breach any contract. Rather than constituting an inducement to breach of contract, the acts of these defendants complained of in the complaint appear to have solidified the lawyer-client relationship.”

Defendants also assert that neither the plaintiff attorneys nor their clients have been damaged, either by the nonpayment of fees or otherwise, by any alleged acts of the instant defendants, and, “stripped of its rhetoric and citations and despite protestations to the contrary, the sole gravamen of this complaint is to enjoin an insurance company from talking to claimants after receipt of a notice of attorney’s lien. This is not the law, nor can it be the law.”

Actions for malicious and fraudulent interference with contractual rights and business expectancies have long been recognized, commencing with Lumley v. Gye, 2 E & B 216, and in Illinois, commencing with Doremus v. Hennessy, 176 Ill 608, 52 NE 924 (1898). In Doremus, it is said (p 614):

“The common law seeks to protect every person against the wrongful acts of others, whether committed alone or by combination, and an action may be had for injuries done which cause another loss in the enjoyment of any right or privilege or property. No persons, individually or by combination, have the right to directly or indirectly interfere or disturb another in his lawful business or occupation, or to threaten to do so, for the sake of compelling him to do some act which, in his judgment, his own interest does not require. Losses willfully caused by another, from motives of malice, to one who seeks to exercise and enjoy the fruits and advantages of his own enterprise, industry, skill and credit, will sustain an action. It is clear that it is unlawful and actionable for one man, from unlawful motives, to interfere with another’s trade by fraud or misrepresentation, or by molesting his customers or those who would be customers, or by preventing others from working for him or causing them to leave his employ by fraud or misrepresentation or physical or moral intimidation or persuasion, with an intent to inflict an injury which causes loss.”

Plaintiff cites Gordon v. Mankoff, 146 Misc 258, 261 NYS 888 (1931), as particularly in point here. There, it is said (pp 889, 890):

“It is unquestioned that a client has the right to terminate the relationship of attorney and client at any time, with or without cause. That right is afforded him by the law because of the peculiar nature and character of the relationship, which in its very essence is one of trust and confidence. It is a right for the benefit of the client, and is intended to save him from representation by an attorney whose services he no longer desires, an obviously sound and salutary doctrine. But, while that relationship continues, it is a contract which must be respected like any other contract, and, because the law gives the client the right to terminate the relationship at will, is no justification for maliciously inclined third persons to disrupt it while it exists. ‘The law does not permit the client to cheat his attorney.’ Pound, J., In re Levy, 249 NY 168, 170,163 NE 244. In the exercise of a free will, Mankoff was entitled to end his contract with the plaintiff at any time; but the charge here, sounding in tort, is that the defendants, with malicious intent, induced him to do so, and that same was brought about by their confederated procurement. The defendants argue, in attacking the second cause of action, that, because Mankoff had the legal right at any time to terminate his retainer of the plaintiff, any acts of the defendants, even though maliciously motivated in bringing about any such termination, are not actionable. They invoke the rule that a malicious motive does not make unlawful an act which by itself is lawful. This argument overlooks the gravamen of both causes of action, namely, that Mankoff did not exercise his right to end the relationship with the plaintiff, but that this was brought about by the unlawful institution of the defendant.”

In Pilurs v. Elco Const. Co., 16 Ill App2d 543, 149 NE2d 104 (1958) (Abst.), this court said:

“To persuade a person to break his contract may not be wrongful in law or in fact, but if the persuasion be used for the purpose of injuring the plaintiff and inducing the breach, it is actionable if injury ensues from it, and one who has wrongfully induced a breach of contract cannot claim that the plaintiff, in an action against him therefor, is not damaged because he has a cause of action for the breach against the other party to the contract. . . .
“All persons who unite to induce a breach of contract are jointly and severally liable for the damage to the party injured thereby.”

It is stated in 86 CJS, Torts, § 44:

“The interference by a third person with a contractual relationship, including interference with the contract without inducing a breach, as for example, by injuring persons so that they may be disabled to perform, or by destroying or damaging property which is the subject matter of the contract, or by doing other acts which make the performance more burdensome, difficult or impossible, or of less or no value to the person entitled to performance, may constitute an actionable tort, under the theory that such interference constitutes an invasion of the property rights of the parties to the contract.”

A motion to dismiss admits facts well pleaded but not conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. Pleadings are construed most strongly against the pleader, but facts well pleaded must be taken as true. (Washington v. Courtesy Motor Sales, Inc., 48 Ill App2d 380, 199 NE2d 263 (1964).) The cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings which will entitle plaintiff to recover. (Louis v. Barenfanger, 81 Ill App2d 104, 110, 226 NE2d 85 (1966).) Under the Civil Practice Act, pleadings are to be liberally construed with a view toward doing substantial justice between the parties, and no pleading is to be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim. (Crosby v. Weil, 382 Ill 538, 548, 48 NE2d 386 (1943).) The pleader should allege the ultimate facts to be proved and not allege the evidentiary facts which tend to prove the ultimate facts. (Levinson v. Home Bank & Trust Co., 337 Ill 241, 244, 169 NE 193 (1929).) “There is no clear distinction between statements of ‘evidentiary facts,’ ‘ultimate facts,’ and ‘conclusions of law.’ There is no provision in the Civil Practice Act defining a conclusion, and a precise definition as to what constitutes conclusions of law is impossible.” Nichols, Illinois Civil Practice, Revised Edition (1961), Vol 2, § 777, p 27.

As to Count I, we believe the complaint shows that it contains all ■ the essential allegations necessary to set forth a cause of action for wrongfully inducing a breach of contract based on a conspiracy participated in by the defendants. It shows defendants’ knowledge of the existing attorney-client relationship, inducements made to the plaintiff clients to violate their contracts with the plaintiff lawyers, at least one breach, and acts which make the performance of the representation of clients “more burdensome, difficult or impossible.” Actual damages are asserted as exceeding $2,000, and though the origin of these damages might be specified more exactly, we cannot say that the complaint is fatally defective for failure so to do.

As to Count n, we consider the allegations sufficient to show that the actions of defendants interfered with the performance of plaintiffs’ contractual obligations to each other, as well as to make this performance more difficult and more costly. We are not persuaded that the complaint is multifarious. It shows a series of transactions “forming one course of dealing, all tending to one end, so that one connected story can be told of the whole.” It is possible in this suit for the court to “determine questions incidental to the determination of the main controversy” and grant all relief incidental to the accomplishment of the main object of the complaint. White v. Macqueen, 360 Ill 236, 246, 195 NE 832 (1935).

As to Count III, plaintiff Cason asserts that he had a claim against an assured of Prudence and employed the plaintiff attorneys to prosecute or settle the claim; that Warren, pursuant to and in furtherance of Warren’s conspiracy with Prudence, Barrett and Urban, made contact with him and advised him not to notify his attorneys, and fraudulently explained the legal relationship and nature of the release which Cason signed on January 27, 1966, in exchange for a Prudence draft in the sum of $100. Plaintiff Cason also asserts that Warren’s representations were false and were made to defraud him of his chose in action and effectively deny him his right to prosecute his suit for personal injuries. We conclude that Count III states a cause of action.

Defendants also contend that a conspiracy cannot exist between agent and principal. (John Deere Co. v. Metzler, 51 Ill App2d 340, 201 NE2d 478 (1964).) They argue that because the complaint alleges that Warren is both an employee of Prudence and also the alleged unauthorized practitioner of the law that the complaint is defective. We do not find this argument persuasive. In the John Deere case, the court stated (p 355):

“In civil cases the gravamen is not the conspiracy or combination but the unlawful acts committed in pursuance to the conspiracy or civil wrong resulting in damages.”

And at page 356:

“It was said [in] Hyman v. Burmeister, 216 Ill App 98, Tf a plaintiff fail in the proof of a conspiracy or concerted design, he may yet recover damages against such of the defendants as are shown to be guilty of a tort, resulting in damages to him. The charge of conspiracy, where unsupported by the evidence, will be considered mere surplusage, not necessary to be proved to support the action. . . .
“ ‘The common law seeks to protect every person against the wrongful acts of others, whether committed alone or by combination, and an action may be had for injuries done which cause another loss in the enjoyment of any right or privilege or property. No persons, individually or by combination, have the right to directly or indirectly interfere or disturb another in his lawful business or occupation, or to threaten to do so, for the sake of compelling him to do some act which, in his judgment, his own interest does not require. Losses wilfully caused by another, from motives of malice, to one who seeks to exercise and enjoy the fruits and advantages of his own enterprise, industry, skill and credit, will sustain an action. . . .’ it
“Thus we conclude that if the acts of John Deere were tortious in that they consisted of a design and purpose to intentionally do a wrongful harm and injury resulting in fact in an injury they are actionable without proof of a conspiracy so to do.”

Defendants also contend that sufficient facts to constitute the unauthorized practice of law are not pleaded. We do not agree. See Smith v. Illinois Adjustment Finance Co., 326 Ill App 654, 658, 63 NE2d 264 (1945).

Defendants further contend that an adequate remedy at law is available to plaintiffs. Although plaintiffs may have a remedy at law for damages, we are not persuaded that their legal remedy is adequate here, because we are of the opinion that plaintiffs’ prayer that defendants be enjoined from interference with their contractual arrangements and that they be enjoined from asserting releases signed by plaintiffs may call for equitable relief by the trial court in its exercise of its broad discretion.

Viewing the complaint in its entirety, we believe the three counts state causes of action and contain “such information as reasonably informs” defendants of the nature of the claims they are called upon to meet. (Civil Practice Act, § 42.) For the reasons given, the order striking plaintiffs’ complaint and dismissing the action as to all defendants is reversed and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded with directions.

BURMAN, P. J. and ADBSKO, J., concur.


author: MR. PRESIDING JUSTICE ABRAHAMSON

text:
    Richard G. Pruitt, Plaintiff-Appellant, v. Allstate Insurance Company, a Corporation, Defendant-Appellee.
    Gen. No. 67-114.
    Second District.
    February 20, 1968.

      Smith, Penniman, MeGreevy, and Donohue, of Rockford, for appellant.
    Robert K. Clark, of Rockford, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of Winnebago County. The trial court granted Summary Judgment for the defendant. Plaintiff appeals.

This action was brought to recover under the collision provisions of an automobile insurance policy issued by defendant. On April 6, 1966, defendant issued a standard automobile insurance contract with the application of plaintiff for such insurance attached, which policy among other things, provided for collision coverage. On April 30,1966, plaintiff’s car was demolished and he made claim under the policy in question for his loss.

The defendant, Allstate Insurance Company, admitted the issuance of the policy, alleged the voiding of the policy and the tender of return of premium. Prior to March of 1966, plaintiff had had a similar automobile insurance policy with the American Family Insurance Group, which company had declined to renew or to continue the insurance. In filling out the application for the policy in question, the question “Has any insurer can-celled or refused or given notice that it intends to cancel or refuse any similar insurance?” was answered “No.” Allstate for the first time learned of the falsity of this statement on or about July 12,1966.

In reply to plaintiff’s Amended Complaint, defendant among other things filed an Affirmative Defense alleging the falsity of plaintiff’s answer in his declarations, which were contained in the application for insurance. Subsequently, defendant filed a request to admit facts, requesting in substance that plaintiff had falsely answered the question with regard to the refusal to renew or continue similar insurance by another company. No response was ever received to this request to admit facts.

After the passage of time permitted by the Supreme Court Rules to respond to such request, defendant filed a motion for summary judgment. Attached to said motion was the affidavit of its Division Supervisor in Underwriting, in which he stated that it was Allstate’s policy to declare void ab initio any policy in which a false answer to the declarations is made in the application for such policy. The affidavit further stated that it was a practice in the insurance industry to void policies under such circumstances, as the answers to the declarations are designed to permit the insurer to determine the desirability of such a risk and that a false answer deprives the insurance company of such right. No counteraffidavits or pleadings of any kind were filed by plaintiff. On June 8, 1967, the Circuit Court entered a judgment in favor of defendant, Allstate Insurance Company.

Plaintiff contends that the Summary Judgment procedure is one of a drastic nature and that the court should be most diligent in guarding against its use in any case involving a real issue of fact. Solone v. Reck, 32 Ill App2d 308, 310-311, 177 NE2d 879.

Plaintiff further contends that the materiality of a false representation in an application for insurance is a question of fact for the jury and that the trial court should never grant summary judgment in such cases. Mooney v. Lloyd’s, London, 33 Ill2d 566, 569, 213 NE2d 283.

The issue before us, we believe, is a very narrow issue. Plaintiff asserts that whether the misrepresentation of the facts with regard to cancellation or refusal to renew a similar insurance policy is material to the risk is an issue for the jury. The affidavit attached to defendant’s motion for summary judgment states unequivocally that defendant would not have issued the policy in question had said question been answered truthfully, and went on to state that the insurance industry considers cancellation or refusal to renew material to the risk. This affidavit stands uncontradicted. We have long held that failure to disclose prior cancellation of automobile insurance policy or prior refusal to issue one is, as a matter of law, material to the risk. Government Employees Ins. Co. v. Dennis, 65 Ill App2d 365, 371, 212 NE2d 759; Western States Mut. Automobile Ins. Co. v. May, 18 Ill App2d 442, 449, 152 NE2d 608; Loving v. Allstate Ins. Co., 17 Ill App2d 230, 236, 149 NE2d 641.

To accept plaintiff’s theory that a misrepresentation of the application for insurance policy is necessarily a question of fact for the jury would preclude the summary judgment procedure from any such case.

In view of defendant’s uncontradicted affidavit, we are of the opinion that the trial court properly granted summary judgment.

Judgment affirmed.

DAVIS and MORAN, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    Evelyn Holden, Plaintiff-Appellant, v. Kayser Roth Corp., Catalina Inc., and Peoples Store of Roseland, Inc., Defendants-Appellees.
    Gen. No. 52,037.
    First District, Fourth Division.
    February 21, 1968.
    Sheldon S. Hells, of Chicago (Leonard M. Ring, of counsel), for appellant.
    Vogel & Vogel, of Chicago (Robert C. Vogel, of counsel), for appellees.

       See Callaghan’s Illinois Digest, same topic and section number.

       The complaint was dismissed as to the Peoples Store of Rose-land prior to trial.

   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff’s complaint sought damages from defendants for negligence and breach of warranty in the manufacture and sale of a bathing suit which exposed to view her personal and private parts when it became wet resulting in her “humiliation, mortification and embarrassment . . . .” Plaintiff appeals from a directed verdict at the close of her evidence in favor of defendants Kayser Roth Corp. and Catalina Inc. and from a dismissal of the case.

The issues presented by this appeal are:

1. Was there a prima facie showing that plaintiff’s personal and private parts were exposed to view; and

2. Is mental suffering, neither intentionally inflicted nor the product of a physical impact, compensable?

Plaintiff testified that she purchased the bathing suit in question at the Peoples Gately Store on February 4, 1960; that it was a Catalina bathing suit and that she wore it for the first and only time April 27 at the Pullman Park Pool on “Family Night.” According to plaintiff’s testimony she came to the pool with her daughter, her next door neighbor Mary Goshorn, and a friend, Mrs. Margaret Broccolino. There were 75 to 100 people at the pool at the time the incident took place. After she and her friends swam around for awhile they got out of the pool to use the diving board, whereupon her daughter told her that she could see through plaintiff’s bathing suit. Plaintiff stated that she then looked down at the suit and could see her “personal and private parts.” She then dove back in and her friends shielded her in the shallow end until the pool “more or less cleared out of people” whereupon she made a quick exit to the locker room, dressed and went home. She said she didn’t know the names of all the people at the pool but they were her neighbors and she saw them often on the street and at the PTA and other community affairs and that she was embarrassed, upset, angry, nervous and was perspiring. One hour later she had a “beastly headache.” The next day she was sluggish, depressed and embarrassed. She is still nervous and perspires and it was six months before her anger left. She has never gone back to the Pullman Park Pool. She said she was often “joshed” about the incident by her friends.

Every time we are out in a group or gathering for a picnic, or something, the subject is always brought up. (They say), “Let’s turn a hose on Evelyn,” or, “Let’s throw her in the water and see what kind of a bathing suit she has on.” That is still happening.

Plaintiff stated that every time the subject is brought up she still becomes nervous and perspires. She sought, however, no medical attention following the incident nor did she miss any work from her job as a secretary. When cross-examined about what she saw when she looked down at her swimsuit, plaintiff said:

Before I dove back into the pool, I glanced down quickly. I saw flesh colored skin through a white bathing suit on my thigh and side at my hip — I don’t know whether I looked at my right, or left, side. I looked down and saw flesh color, through my suit, at this point. I did not look anyplace else. I dove back into the pool. [Emphasis supplied.]

Margaret Broccolino testified that when plaintiff got out of the pool to go to the diving board she was able to see plaintiff’s personal and private parts, that plaintiff was upset and embarrassed, that people who know about the incident tease plaintiff and she becomes embarrassed and ashamed. However, when cross-examined about what she saw she stated:

As to what I understand of the private parts of a person’s body, I mean anything that would ordinarily be covered up. I understand what you mean when you refer to a woman’s breast. I could see those through this suit. I did. This has been a great length of time — The portion that I saw of this lady’s body through this suit was, generally, through the middle area of her body. I could not be absolutely definite about that. I know we could see her skin through the suit. I do not recall the area exactly. I could not pinpoint the area, and I don’t want to argue with you. You could ask me fifty questions, and I couldn’t give you a better answer than I just have. I wouldn’t be able to tell you, specifically, whether or not I could see a particular portion of this lady’s anatomy through this suit.

Mary Goshorn testified that after plaintiff started to get out of the pool she noticed the suit had become transparent and that plaintiff became embarrassed. She said:

I could see through her bust area. I think I could see through her abdominal area, and, also through the buttocks area. I would say that her body, under the area of the bathing suit, was exposed so you could see it.

When cross-examined on this point, however, she said:

You could see through the suit, but I don’t recall what parts I saw. As to whether I just have a general impression you could see some parts of her body through the suit, I know you could see through the suit.

She also testified that it was just a few seconds from the pool to the locker room, that there were around fifty people present but that she didn’t know what any of them had seen.

Paul Stokesbury testified that he was a chemist and did physical testing of structural and nonstructural materials. He said that he tested the swimsuit and that it became transparent when wet and a band-aid placed on the thigh could be seen through it. Stokesbury also identified four black and white pictures of the swimsuit worn by a model taken under his direction and submitted as exhibits. Three of the pictures were of the suit wet and one dry.

Plaintiff first contends that she made a prima facie showing that her “personal and private parts” had been exposed. Plaintiff testified that she was able to see her “personal and private parts” when she looked down at herself after emerging from the pool. However, on cross-examination she admitted to only having seen flesh color at her thigh and her hip and to having looked nowhere else. Her friends, Mrs. Broccolino and Mary Goshorn, after testifying on direct examination to their having seen plaintiff’s private areas, admitted on cross-examination that they were not able to remember what they had seen. Plaintiff’s expert Stokesbury stated that the suit was transparent but didn’t testify as to the specific areas exposed. Most significantly, the pictures he had taken completely fail to support plaintiff’s contention. Although the outline of a band-aid is faintly discernible on the model’s thigh, the model’s “personal and private parts” clearly are not. Finally, examination of the suit itself, which was introduced as one of plaintiff’s exhibits, shows that it was lined with extra material in the bust area and in the crotch. Under these circumstances we believe plaintiff failed to prove that her “personal and private parts” were exposed and therefore the court properly directed a verdict in favor of defendants. (Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 229 NE2d 504.)

Plaintiff also asks us to rule that mental suffering, neither intentionally inflicted nor the product of a physical impact, is compensable. Her counsel argues ably and persuasively that the line of cases denying recovery for mental suffering in the absence of physical impact, of which Braun v. Craven, 175 Ill 401, 51 NE 657, is the leading case, has been implicitly overruled by Knierim v. Izzo, 22 Ill2d 73, 174 NE2d 157. He points out that in Khierim, in establishing the compensability of intentionally inflicted mental suffering, the Illinois Supreme Court cast doubt on many of the principles on which Braun v. Craven and succeeding cases were built. Cases in other jurisdictions which have permitted recovery for negligently inflicted mental suffering without physical impact (Falzone v. Busch, 45 NJ 559, 214 A2d 12, and Savard v. Cody Chevrolet, Inc. (Vt), 234 A2d 565) have been presented to us. However, since plaintiff predicated her mental suffering on the exposure of her private parts, our conclusion that she failed to prove such exposure places beyond the proper scope of this opinion any decision on the compensability of the alleged resulting suffering.

The judgment of the Circuit Court is affirmed.

Affirmed.

MCCORMICK, P. J. and ENGLISH, J., concur.


author: MR. JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clyde Millner, Defendant-Appellant.
    Gen. No. 51,379.
    First District, Third Division.
    February 23, 1968.

      William Cousins, Jr., of Chicago, for appellant.
    John J. Stamos, State's Attorney of Cook County, of Chicago (Elmer C. Kissane and David B. Selig, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant was indicted for murder. A jury found him guilty of involuntary manslaughter and he was sentenced by the court to serve a term of not less than 7 years nor more than 10 years in the Illinois State Penitentiary.

On appeal the defendant contends that the court erred in giving instructions numbers 3 and 5, which were tendered by the State, and in refusing instructions 4, 5, 7, 8, 9 and 10, which were tendered by the defendant. Defendant also contends that the trial judge demonstrated, by his remarks immediately prior to passing the sentence, that he was prejudiced against the defendant.

The defense does not contend on this appeal that he was not proven guilty beyond a reasonable doubt.

As to the defendant’s complaint concerning the giving of two State instructions and the refusal to give six instructions tendered by the defendant, the issue is not properly before this court. The defendant has abstracted only State’s instructions numbers 3 and 5, given to the jury, and defendant’s instructions 4, 5, 8, 9 and 10 which the court refused to give to the jury. None of the other instructions, either given or refused, have been abstracted by the defendant.

It has been consistently held that where the abstract of record includes only the instructions complained of without regard to the other instructions, both given and refused, error cannot be predicated upon the giving, refusal or modification of those instructions, since the court is not bound to search the record itself to supply abstract deficiencies. People v. Robinson, 27 Ill2d 289, 189 NE2d 243; see also People v. Todaro, 14 Ill2d 594, 153 NE2d 563; People v. Allen, 17 Ill2d 55, 160 NE2d 818.

Another reason why the point relative to the giving of and refusal to give certain instructions by the court has not been preserved is the failure of the defendant to include in his written motion for new trial the giving of or refusal to give the specific instructions complained of. (People v. Riggins, 13 Ill2d 134, 148 NE2d 450.) Where a defendant has filed a written motion for a new trial and has not assigned as error in the written motion the specific instructions complained of, he is deemed to have waived error as to those instructions. (People v. Neukom, 16 Ill2d 340, 158 NE2d 53.) We will therefore not inquire whether the trial court erred in this respect.

The defendant in his second point argues that the court was prejudiced against him in making the following remarks which immediately preceded the sentencing of the defendant from 7 to 10 years in the penitentiary:

“THE COURT: Well, the Defendant here brought home with him a degenerate and the defendant, by his own testimony, is himself a degenerate.
“THE COURT: I don’t believe you. And I feel that I know what I’m saying. Your son has proved to be the only decent citizen, male member of your family that I know. You had a good job and why you got yourself involved in this sort of thing, I don’t know. Maybe you’ll understand why not, but there is something wrong with you, that’s obvious.
“You testified here under oath you took this man home for a degenerate sex act.
“THE COURT: I heard your testimony and I’m judging you by your own testimony. You admitted you went home for this purpose.
“THE COURT: I don’t know what’s wrong with you, but there’s something wrong with you. Why you killed this man, I don’t know. I’m satisfied you killed him and you intended to kill him.
“THE COURT: I’m certain you did. No one could fire the gun in that trajectory unless he was on his knees in front of you, and that’s what happened, I think.
“THE COURT: The bullet couldn’t have entered his body and come out any other way unless he’s on his knees in front of you.
“THE COURT: Well, maybe his period of incarceration will help him and maybe it won’t, I don’t know. He has a problem and he’s taken a human life. He knew what he was doing, when he took it.”

The defendant does not complain about any remarks during the course of the trial that would indicate any prejudice of the judge. The remarks of the judge seemed moré to indicate that he was in agreement with the verdict of the jury. When the judge said he did not believe the defendant he was merely concurring with the jury’s verdict. The jury did not believe the defendant. The judge’s comments also indicated that he felt the defendant intended to shoot the deceased, and explained his reasoning by pointing out the evidence relating to the trajectory of the bullet. We do not feel the comments of the judge indicate any prejudice which would tend to blind him in reaching a fair and just sentence. Everything that was said by the judge was borne out by evidence in the case, or inferences that could properly have been drawn from such evidence.

In People v. Matthews, 17 Ill2d 502, 508, 162 NE2d 381, the court said:

“Upon sentencing defendant the trial judge remarked that it was regrettable that the statute limited the sentence to 20 years, and that in this type of case a man should be put away for life. He then sentenced the defendant to a minimum of 19 years and a maximum of 20 years.
“Defendant points to nothing during the course of the trial which indicates passion or prejudice on the part of the court. The remarks to which defendant now takes exception were made only after the court had found the defendant guilty. The remarks do not mean that the court had entertained a preconceived attitude in regard to defendant’s guilt, but only that the facts of the crime, as they came to light from the evidence presented, shocked and revolted the court.
“We can well understand the strong feelings of the court, but nothing appears to us to indicate that the court tried the case in any attitude other than one of impartiality and fairness. The actions of the court during the trial, and its pronouncements of judgment and sentence were proper, correct, and within the limits of the law. That the court expressed, after trial, a personal opinion clearly attributable to the evidence in the record, does not mean that the court was not an impartial trier of facts. People v. Brown, 392 Ill 519; People v. Tensley, 3 Ill2d 615.”

In the instant case the judge was no doubt shocked and revolted by the evidence presented to the jury during the course of the trial. We feel that his statements were proper. The personal opinion of the trial judge after the trial was clearly attributable to the evidence in the record, and does not indicate that the sentencing was influenced by any prejudice on his part.

The sentence imposed by the trial court, being within the limits by law, will not be disturbed.

Judgment affirmed.

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


text:
    Natalia Dimitrijevic, Administratrix of the Estate of Dimitrije Dimitrijevic, Deceased, Plaintiff-Appellant, v. Chicago Wesley Memorial Hospital, an Illinois Corporation, and Benjamin Boshes, M.D., and Benjamin Blackman, M.D., Defendants-Appellees.
    Gen. No. 50,720.
    First District, Fourth Division.
    January 22,1968.

      Francis J. Mahon and Edward J. Bradley, of Chicago, for appellant.

      Eoss, Kralovec, Sweeney & Marquard, of Chicago, for appellee Chicago Wesley Memorial Hospital, and Kirkland, Ellis, Hodson, Chaffetz & Masters, Dent, Hampton & Doten, of Chicago (Charles M. Rush, John M. O’Con-nor, Jr., and John P. Hampton, of counsel), for appellees Benjamin Boshes, M.D. and Benjamin Blackman, M.D.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This was a wrongful death action brought by the Administratrix of the Estate of Dimitrije Dimitrijevic in which plaintiff sought to prove that malpractice on the part of the defendant doctors and negligence on the part of defendant hospital were responsible for the suicide of her intestate. From the direction of verdicts in favor of all the defendants at the close of her evidence, plaintiff appeals. On appeal she contends:

1. That the evidence established a prima facie case of malpractice against defendant doctors;

2. That the evidence established a prima facie case of negligence against defendant hospital;

3. That the court below erred by weighing the evidence in directing the verdict.

The evidence showed that plaintiff’s decedent had been suffering increasing depression and that on February 28, 1958, on the advice of his family doctor he went to the Wesley Memorial Hospital for psychiatric treatment. He was put in a double room on the eleventh floor next to an unguarded window. His movements were not closely restrained nor was he constantly supervised. On the 5th of March decedent leaped from the window to his death.

Dr. Joel Brumlik, called as a witness for plaintiff, testified that he had been a resident in psychiatry and at the time of decedent’s stay in the hospital was a resident in neurology under the supervision of the defendant doctors. He stated that he saw the decedent upon his admission, that he was not authorized to make diagnoses but that he worked up an “impression”; that he prescribed a sleeping tablet, a sedative and aspirin; that decedent had suicidal thoughts but that he prescribed no restraints on the decedent’s mobility and at no time thought that the precautions used in the case of a suicidal risk were necessary.

Dr. Blackman, called by plaintiff under section 60 of the Civil Practice Act, testified that he talked to decedent’s family doctor and arranged for decedent’s admission on February 28; that he diagnosed the illness as an acute anxiety state rather than a psychotic depressive reaction as Dr. Brumlik first thought. Dr. Blackman stated that great restrictions were used if the patient was considered a suicidal risk but that:

“I took into consideration the note in the record ‘has had suicidal thoughts’ in arriving at my opinion that he was not a suicidal risk. Other considerations were: he was clear of mind; related very well; articulate in describing his emotional problems; no delusions; no hallucinations; not agitated; cooperative. He had difficulties in his marriage and worries about his family in Yugoslavia to whom he sent money from time to time.
“He was working regularly as a draftsman. He had worked up until the time he came into the hospital.”

He also stated that he was influenced by the patient’s desire to get well. Later he said:

“A suicidal risk means a medical determination that a patient could possibly take his life and a certain procedure should be instituted immediately. When someone expresses suicidal thoughts we cannot institute this rigorous procedure. Many people have suicidal thoughts. Suicidal thoughts are not equivalent to a patient being a suicidal risk.”

Dr. Boshes testified under section 60 of the Civil Practice Act that he was chairman of Wesley Hospital’s Department of Neurology and Psychiatry; that decedent was his patient but as chairman of the department he could not personally handle each case; that he had assigned the case to Dr. Blackman and felt that the patient was being well handled. He said that in an hour spent with the decedent the day before his death he had measured the forces of depression against the forces of defense in determining that decedent was not a suicidal risk and that this method was generally followed by the psychiatric profession in making such determination.

The evidence showed that the day before decedent’s death Dr. Blackman ordered the decedent transferred to Section 8-W and that this order was never carried out. Section 8-W had locked doors and windows guarded by heavy mesh retention screens. It was staffed by people specifically trained in psychotherapy techniques and afforded special treatment facilities. Kenath Hartman, the hospital administrator, testified under section 60 of the Civil Practice Act that 8-W had a capacity of thirty-two patients plus three beds for emergency use; that on March 4 all thirty-two beds plus one emergency bed were filled; that he called Dr. Blackman and asked if this was an emergency case for transfer to 8-W and Dr. Blackman said no. He stated that he inquired into the need for restraints based on the suicidal thoughts on the progress reports and that Dr. Blackman said there was no need for special precautions against suicide. He stated that in studying to be a hospital administrator he had received courses in the case of psychiatric patients and that:

“. . . the emphasis was placed on the fact that the care of psychiatric patients was in a state of change in treatment; that no longer were we to consider in construction design, a completely closed, isolated unit for these patients, but that we must provide open area for patients that are psychiatric patients; that we should not be too strict upon the doctors in the treatment of psychiatric patients; that they, themselves, are making tremendous strides in the care of patients, which do not require them always to be in confined units, and that they found that we should provide occupational therapy and recreational-therapy for these individuals, . . .”

Dr. Boshes further testified that he knew of the order and of the possibility of getting decedent into 8-W as an emergency patient but saw no such need. Dr. Blackman stated that he gave the order, not for security reasons, but because he wanted decedent to receive the special supportive therapy that 8-W afforded and that although he did not know decedent could be admitted as an emergency patient, had he thought a security risk was involved, he would have ordered the appropriate supervision and restraint. He stated that he did not expect his order to be carried out immediately but only when a bed became available.

Plaintiff first contends that she established a prima facie case of malpractice against Doctors Boshes and Blackman. In her complaint she alleged that the doctors had:

“(a) Carelessly and negligently failed to properly examine the deceased in order that proper diagnosis could be made and care and treatment prescribed;
“(b) Carelessly and negligently failed to give hospital attendants necessary and proper instructions as to care and attention to be given to the deceased;
“(c) Carelessly and negligently failed to properly oversee and observe the care and treatment given by the hospital under his direction and to note that such instructions as he had given were not being carried out;
“(d) Carelessly and negligently failed to follow methods generally approved and recognized in the profession in the treatment and care of the deceased.”

Stripped of verbiage her argument is that the doctors should have been aware that decedent was a suicidal risk and that their failure to take the appropriate precautions was malpractice.

Scardina v. Colletti, 63 Ill App2d 481, 211 NE2d 762, was a malpractice suit for damages resulting from hemorrhaging caused by a severed blood vessel left open after a hernia operation. In denying relief the court stated the general rule governing malpractice cases, at page 488:

“In a malpractice action a physician will be held responsible for injuries resulting from his want of reasonable care, skill and diligence in his practice. The plaintiff must prove by affirmative evidence that the defendant was unskillful or negligent and that his want of skill or care caused injury to the plaintiff. It is not enough to prove that he made a mistake or that his treatment harmed the plaintiff; proof of a bad result or mishap is no evidence of lack of skill or negligence.
“Generally, it is necessary for a plaintiff to show by expert testimony not only that the injury occurred, but that such event does not ordinarily occur in the normal course of events without negligence. Graham v. St. Luke’s Hospital, supra, pp 156, 157; Gault v. Sideman, 42 Ill App2d 96, 101, 102, 191 NE2d 436. The so called “common knowledge” and “gross negligence” exceptions to the requirement of expert testimony are applicable if the negligence of the physician is so grossly apparent or the treatment is such a common occurrence that a layman would have no difficulty in appraising it. Neither exception applies to the present case.” (Emphasis added.)

In Moline v. Christie, 180 Ill App 334, plaintiff sued for an infection arising during the treatment of a crushed finger. The court said at pages 343, 344 (quoting from Goodman v. Bigler, 133 Ill App 301):

“Whether or not the treatment was ordinarily skilful and appellant’s conduct and management of the case was that of an ordinarily careful and skilful physician, is largely an expert question to be determined from the testimony of witnesses learned and experienced in that kind of service. To the same effect is Kruger v. McCaughey, 149 Ill App 440.”

See also Wallace v. Yudelson, 244 Ill App 320; Graiziger v. Henssler, 229 Ill App 365.

In Graham v. St. Luke’s Hospital, 46 Ill App2d 147, 196 NE2d 355, the court discussed circumstances under which exception to the general requirement of expert testimony would be made. In holding expert testimony necessary in the particular injection case before it, the court said at page 158:

“The rule is that expert testimony is not required if the negligence is so grossly apparent or the treatment is of such a common occurrence that a layman would have no difficulty in appraising it. [Citing authorities.] The rule has been applied to cases involving anesthesia, tonsillectomy, X-rays and in some cases injections.”

Plaintiff argues that in Kent v. Whitaker, 58 Wash2d 569, 364 P2d 556, and Stallman v. Robinson, 364 Mo 275, 260 SW2d 743, the jury was allowed to pass on the adequacy of the care given patients who took their own lives while in the care of physicians without affirmative expert testimony of negligence. In those cases there was no question but that the patients were suicidal risks. The patients had made previous attempts on their lives, the defendants acknowledged the serious risk of suicide and took precautions. The jury was allowed to evaluate whether the patients were watched closely enough in view of their admittedly pronounced suicidal tendencies. In the instant case the question is much farther from the ken of the lay mind: were the symptoms of the decedent such that a reasonably skillful doctor using customary methods should have regarded decedent as a suicidal risk requiring special precautions ? Santos v. Unity Hospital, 301 NY 153, 93 NE2d 574, cited by plaintiff, is not in point because expert medical testimony was introduced. In Hall v. Grosvenor, 267 Ill App 119, there was a statement that expert testimony was not required for the jury to decide whether leaving a surgical sponge in the plaintiff’s abdomen after an operation was negligent. However, plaintiff had introduced some affirmative expert testimony and that question was more within the ken of the layman than the proper psychiatric diagnosis in the instant case.

We think that the question whether defendant doctors failed to exercise ordinary skill and care in not characterizing decedent as a suicidal risk falls within the general rule requiring the affirmative testimony of experts. In Gregory v. Robinson (Mo), 338 SW2d 88, plaintiff sued for injuries he inflicted on himself while a psychiatric patient. The court said at page 94:

“A physician must necessarily be allowed a wide range of discretion and judgment. So say the cases .... Giving him the freedom of this ward was a calculated risk assumed in the light of the modern concepts of treatment.”

The diagnosis and treatment of plaintiff’s decedent was neither so grossly unskilled nor so clearly within the common experience of the jurors that it could go to the jury without affirmative expert testimony. Defendant doctors both testified that they at no time thought decedent a suicidal risk. Although Dr. Brumlik as an examining resident asked Dr. Blackman about the possibility of a suicidal risk, he showed no dissatisfaction then or at the time of trial with the judgment and methods of Dr. Black-man or Dr. Boshes. In fact he testified that he was not concerned about the patient’s physical security and that he prescribed no restraints. Dr. Boshes testified that he felt Dr. Blackman had been handling the case well and that he himself had used customary methods in assessing the risk of suicide. Testimony given under section 60 of the Civil Practice Act binds the party who calls the witness unless the witness is impeached or the testimony rebutted. Kapraun v. Kapraun, 12 Ill2d 348, 355, 146 NE2d 7. Rather than affirmatively supporting an inference of negligence or lack of skill, the uncontradicted medical testimony supports the inference that the doctors were diligent and skillful. Plaintiff failed to make out a prima facie case of malpractice against defendant doctors.

Plaintiff contends that the evidence established a prima facie case of negligence against the hospital in that the hospital was negligent in having decedent next to an unguarded window and in not transferring him to Section 8-W in accordance with Dr. Blackman’s order. We believe that unless the attending physician recommended special precautions against suicide the hospital was under no duty, in these circumstances, to take such precautions. The evidence is conclusive that the doctors neither felt such instructions necessary nor gave them. Dr. Brumlik prescribed that decedent remain ambulatory. Dr. Black-man was consulted by the hospital’s administrator over the need for security precautions. The same is true regarding the hospital’s failure to transfer the patient to 8-W. It contacted Dr. Blackman who said that the transfer was not an emergency and could be delayed until there was regular space available. We believe the hospital had a right to rely on the instructions of the doctors and that the evidence does not support a prima facie case of hospital negligence.

Plaintiff next contends that the court applied an incorrect principle in directing the verdicts in that it weighed the entire evidence rather than looking only at these aspects of the evidence which favored her case. She argues that the rule is correctly stated in Hogmire v. Voita, 319 Ill App 644, 49 NE2d 811 (abst.) and the cases cited therein:

The law that governs the court in passing upon a motion of defendant to direct a verdict is well settled.
“ 1 “A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the rule is that the evidence so demurred to, in its aspect most favorable to the plaintiff, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. The evidence is not weighed, and all contradictory evidence or explanatory circumstances must be rejected. The question presented on such motion is whether there is any evidence fairly tending to prove the plaintiff’s declaration. In reviewing the action of the court of which complaint is made we do not weigh the evidence, — we can look only at that which is favorable to appellant. Yess v. Yess, 255 Ill 414; McCune v. Reynolds, 288 id. 188; Lloyd v. Rush, 273 id. 489.” (Hunter v. Troup, 315 Ill 293, 296-7.)’ (Mahan v. Richardson, 284 Ill App 493, 495. See, also, Thomason v. Chicago Motor Coach Co., 292 Ill App 104, 110; Wolever v. Curtiss Candy Co., 293 Ill App 586, 597.)” (Rose v. City of Chicago, 317 Ill App 1.)

Thus plaintiff would have the court consider that Dr. Brumlik in his “impression” at the first examination characterized decedent’s case as a psychotic depressive reaction and a loss of contact with reality without considering Dr. Brumlik’s status as a resident doing only a tentative diagnosis and his recommendation that no restraints be placed on decedent’s mobility. She would have us consider the notation of suicidal thoughts in the hospital record without the doctors’ explanation that this does not necessarily constitute a suicidal risk. She would have us consider the fact that Dr. Boshes only saw decedent for one hour and not until the day before his death and disregard his explanation that as head of the department he had to delegate responsibility to competent assistants and his testimony that the patient was being well handled, and that his method of evaluation was the one generally followed in the profession. Plaintiff would ask us to heed defendant doctors’ failure to press their order of transfer to 8-W and defendant hospital’s failure to follow it without regard to the reasons for not carrying it into effect immediately. She would have us take into account Dr. Blackman’s testimony that he was made suspicious of possible suicidal risks by decedent’s increasing depression without also considering his testimony that other factors made him feel there was not a suicidal risk.

It is clear that the trial court applied a different standard in directing a verdict for defendants than that urged by plaintiff. The judge said:

“The motion is not a motion that is merely allowed where there is no evidence at all, where the record is devoid of evidence. You have a right to give the evidence the greatest intendment possible, I agree, which in this case, is to the plaintiff, but if the evidence is slight on the one hand for the plaintiff, and substantial on the other hand, for the defendant, so that all fair minded men would come to the same conclusion as a result of considering the evidence, and if that conclusion were in favor of the defendant, then the motion should be allowed. Now, that is what I believe the rule is.”

and later:

“I feel here that the evidence is so overwhelmingly for the defendant in this case, that my inclination, sir, is to allow the motion, and that will be the order of the court.”

The formulae for directing verdicts were recently considered in Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 229 NE2d 504. After intensively reviewing the decisions in this and other states, the Supreme Court said at page 510:

“We are not completely certain that the rule heretofore used in this State in determining when questions of negligence and contributory negligence become questions of law, i. e. only when all reasonable men would agree that due care had or had not been exercised, is the most workable in practical application. . . .
“Nor, as earlier stated, does it seem to us that the any-evidence rule or any of its variants (no conflict in the evidence; scintilla rule) is entirely satisfactory, for literal application thereof prohibits direction of a verdict even though the evidence relied upon in opposition is so overwhelmingly rebutted that no verdict based thereon could possibly stand
“Rather, we believe the rule is best which in some form finds favor in other States heretofore indicated and which has, in part, been heretofore recognized in this State. In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all the evidence, when viewed in its aspects most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

We believe that under the standard enunciated in Pedrick the direction of verdicts in the instant case was proper. See Bernier v. Skripek, 86 Ill App2d 118, 126-127, 229 NE2d 890.

Defendants also argue that plaintiff’s recovery is barred because the decedent’s suicide constituted contributory negligence. Because of what we have previously said we find it unnecessary to discuss this point.

Defendants have moved for dismissal of this appeal on the ground that plaintiff failed to make a post trial motion. The conflicting cases on this point were recently reviewed in Keen v. Davis, 38 Ill2d 280, 230 NE 2d 859. The court there held that it was not necessary to file a post trial motion in the trial court following a directed verdict as a prerequisite to appeal. Therefore the motion to dismiss the appeal is denied.

The judgments of the Circuit Court in favor of all the defendants are affirmed.

Affirmed.

McCORMICK, P. J. and ENGLISH, J., concur.

       III-Rev Stats 1963, c 110, § 60, states:
      Upon the trial of any case any party thereto or any person for whose immediate benefit the action is prosecuted or defended, or the officers, directors, managing agents or foreman of any party to the action, may be called and examined as if under cross-examination at the instance of any adverse party. The party calling for the examination is not concluded thereby but may rebut the testimony thus given by countertestimony and may impeach the witness by proof of prior inconsistent statements.