author: MR. JUSTICE LYONS

text:
    Harvey Wrecking Company, Plaintiff-Appellant, v. Certain Underwriters at Lloyd’s, London, Signatories to Policy Nos. MCL 1167, EL-83 9171, and DT 607295 CA, and Interstate Fire & Casualty Company, Defendants-Appellees.
    Gen. No. 52,032.
    First District, Second Division.
    February 6, 1968.

      Goodman, Krasner & Kipnis, and Jerome H. Torshen, of Chicago (Jerome H. Torshen, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (Forrest L. Tozer and Richard E. Mueller, of counsel), for appellee Interstate Fire & Casualty Company.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This was originally an action for a declaratory judgment on two separate contracts of insurance. Plaintiff, Harvey Wrecking Company, brought the appeal from the entry of an order by the Circuit Court, which order, upon the motions of defendants, Certain Underwriters at Lloyd’s, London, and Interstate Fire and Casualty Company, struck and dismissed plaintiff’s complaint for declaratory relief as to both. Since the filing of its Notice of Appeal however, defendant-Lloyd’s has been dismissed from the instant cause, this appeal is taken by plaintiff solely as it pertains to defendant-interstate and its policy of insurance.

Plaintiff, by its complaint, sought a declaration, inter alia, of the respective rights and liabilities of the immediate parties as insured and insurer under a policy for Manufacturers’ and Contractors’ Liability Insurance issued by Interstate to plaintiff for a one-year period commencing June 1, 1958 (attached as Exhibit B to complaint) . Said agreement purported to afford indemnification to the insured for two categories of possible liability; to wit,

“Coverage A — Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the hazards hereinafter defined.
“Coverage B — Property Damage Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined.”

The facts appear undisputed on the record before us. The occurrence which gave rise to the present controversy involved a fall by one Ulysses Armstrong, a Harvey workman, with resulting bodily injuries, while during the course and furtherance of his employment with the plaintiff company on January 29, 1959. At the time of his mishap, Armstrong had been participating in the demolition of a certain structure located on North Elston Avenue in Chicago, which premises were, as of that date, under the ownership of E. I. DuPont deNemours and Company. Armstrong initiated proceedings for workmen’s compensation against his employer, which claim was satisfied in the amount of $31,863.05 in plaintiff’s behalf by def endant-Lloyd’s, pursuant to its contract for Workmen’s Compensation Insurance, plaintiff executing a release in full discharge to the latter in consideration therefor. Subsequently, Armstrong filed a common-law action in the Circuit Court for damages for personal injuries sustained by him in the same incident against DuPont as the owner of the premises alleging therein by his complaint certain negligent acts and/or omissions by such owner which occasioned his injury.

DuPont’s response to the complaint was that of a third-party complaint against the instant plaintiff as Armstrong’s employer predicated upon both express and implied theories of indemnity, whereby DuPont sought the recovery of all sums which it might be required to pay Armstrong in the principal action. Upon receipt of notice of such action, Harvey tendered the defense of same, as per the terms of its insuring agreement, to defendant-interstate, the latter refusing either to participate in the defense thereof or to agree that coverage for this particular action was afforded by their policy with plaintiff. Plaintiff, accordingly, commenced this present cause against Interstate for a judicial construction and declaration of the rights of the parties under their agreement. To that complaint, Interstate addressed its aforementioned motion to dismiss asserting as grounds Exclusion (k) to Coverage A of the parent policy, which proviso recited:

“This policy does not apply:
“. . . under coverage A to bodily injury to or sickness, disease or death of any employee of the insured arising out of and in the course of his employment by the insured; . . . .”

It is from the granting of this motion that plaintiff brings the appeal.

Plaintiff advances a twofold theory for the proposition that error was committed by the trial judge in dismissing its complaint upon the aforesaid exclusion to the policy. It first submits that DuPont’s action over for indemnity is one so distinct from the initial action by its employee against the purported indemnitee that the provisions of subsection (k) excluding from coverage liability for injuries to employees cannot be heard to obtain.

Under the facts of the instant case, we consider that contention to be an untenable one. Absent compelling precedent to the contrary, plaintiff has not dissuaded this court from the position that the independence of a third-party action for indemnity presents a question unique under the facts peculiar to each specific case by which it arises, and not one readily disposed of by resort to some steadfast or unwavering rule as plaintiff suggests was adopted in Boston v. Old Orchard Business Dist., Inc., 26 Ill App2d 324, 168 NE2d 52 (1960) and Moroni v. Intrusion-Prepakt, Inc., 24 Ill App2d 534, 165 NE2d 346 (1960). Moroni and Boston both dealt with actions over for indemnity by a defendant “owner of the premises” within the meaning of the Scaffold Act against the employer of the principal plaintiff, said third-party defendant-employers having, in both instances, theretofore relinquished workmen’s compensation benefits to its employee for the same complained of injury. Moroni treated the issue at bar only insofar as the indemnity action did not amount to an attempted double recovery by an employee from his employer, contrary to the applicable provisions of the Workmen’s Compensation Act, while Boston simply extended that rule to an instance where the employee-plaintiff had, subsequent to the filing of the third-party complaint, executed a release to the party seeking to be indemnified. It was only from within a setting which presented factual matters patently dissimilar from those of the instant case that the court made the distinction between the initial and latter action over.

Here, and unlike the cases relied upon by plaintiff, the action is one founded upon a contract of insurance, the manifest intent of which must be held to prevail in our consideration of the issue. So too, in the recent case of Palier v. New City Iron Works, 81 Ill App2d 1, 225 NE2d 67 (1967), this court, confronted with somewhat comparable circumstances, was prompted by the overriding considerations necessitated by a statute designed to protect the alleged indemnitor. The instant agreement scrutinized, more specifically the language of Coverage A to which Exclusion (k) pertains, we find that language to be couched primarily in terms of the type of injury to be covered (or as in this case, to be excluded) , rather than in terms of the identity of would-be indemnitees for which insurance was or was not to be afforded. Such language, of course must be taken as representative of the reasonable contemplations of the signatories to that agreement and will be interpreted accordingly. See General Acc. Fire & Life Assur. Corp. v. Brown, 35 Ill App2d 43, 181 NE2d 191 (1962), wherein the employee exclusionary clause in an automobile liability policy contained wordage identical to that of the instant Exclusion (k).

Interpreted then in terms of the injuries to be covered, we feel a fair reading of the policy issued to plaintiff requires that DuPont’s third-party complaint for indemnity be viewed in terms of Armstrong’s prior action against it, inasmuch as DuPont’s complaint, in substance, seeks by substitution of plaintiff-Harvey as the real party defendant, to hold said plaintiff-Harvey primarily at fault for the bodily injuries sustained by one of its own employees arising out of and in the course of his employment.

We are of the opinion, under the circumstances herein enumerated, that DuPont’s action over was sufficiently retentive of the characteristics of the insured’s employee’s suit against it so as to fall within the purview and realm of noncoverage of Exclusion (k) as a matter of law. We are further persuaded by the similar conclusions which were reached in McCabe v. Old Republic Ins. Co., 425 Pa 221, 228 A2d 901 (1967); Hackensack Water Co. v. General Accident Fire & Life Assur. Corp. Ltd., 84 NJ Super 479, 202 A2d 706 (1964); American Stevedores, Inc. v. American Policyholders’ Ins. Co., 138 NYS2d 513 (1955); and Cardinal v. United States Cas. Co., 277 App Div 1140, 101 NYS2d 421 (1950), affd 302 NY 853, 100 NE2d 47 (1951), the only cases cited by either litigant which considered this precise subject. Cf. Guetter v. Hooker Glass & Paint Mfg. Co., 50 Ill App2d 164, 200 NE2d 52 (1964) where the court rejected a contention comparable to that of plaintiff-Harvey.

Plaintiff offers the second theory that any injury to be suffered by the alleged indemnitee (DuPont) in making restitution to the injured employee will be an injury to the property of DuPont as opposed to the person of Armstrong, hence the declaratory judgment action against Interstate was and is one involving only property damage liability (Coverage B), which coverage, Interstate admits to be unaffected by the employee exclusionary clause of subsection (k). Unique a theory as it may be, the court is unable to find foundation in fact or law to support the conclusion that plaintiff advocates.

Citing numerous cases decided, for the most part, upon the respective court’s interpretation of the Illinois Dram Shop and Survival Acts, plaintiff has placed the thrust of his argument upon the broadest of definitions afforded the term “injury or damage to property” by our reviewing courts. Plaintiff submits that any depletion of one’s assets by the incurring of a liability for the payment of the expenses of another is an injury or damage to the property of such payor (DuPont) within the meaning of Coverage B of the policy. Plaintiff is correct to the extent that the term “property” when used without qualification, is a word of the very broadest import, connoting any tangible or intangible res which might be made the subject of ownership. 30 ILP, Property, § 3, p 280, 34A Words and Phrases, Property, pp 108-125. Nor does the court quarrel with plaintiff’s contention that any ambiguities created by such term’s presence in the subject policy should be resolved in its favor by the various rules of construction which favor the insured.

As against the count in DuPont’s complaint predicated upon an express indemnity agreement however, this contention clearly cannot stand, the reason being Exclusion (d) to the parent agreement which recites:

“This policy does not apply:
“. . . under divisions 1, 2 and 3 of the Definition of Hazards, to liability assumed by the insured under any contract or agreement;....”

As to its count based upon implied in law indemnity, the argument which professes to support plaintiff’s theory is simply a fallacious one inasmuch as it endeavors to construe the phrase, “. . . injury to . . . property, including the loss of use thereof, . . . ,” in its purest definitional sense. Quite to the contrary, the only valid approach to the subject is, by our construction, to effectuate the intention of the contracting parties by a consideration of the instrument as a whole. Dick v. Goldberg, 295 Ill 86, 128 NE 723 (1920). Plaintiff, moreover, cannot find solace in this regard in the general rules which favor the insured, for those rules must yield to the paramount rule of reasonable construction, we being thereby prohibited from perverting the language of the contract for the purpose of creating an ambiguity where none exists. Yadro v. United States Fidelity & Guaranty Co., 4 Ill App2d 477, 124 NE2d 370 (1955).

The meaning then of “. . . injury to . . . property, including the loss of use thereof, . . .” is limited accordingly by the context of the writing in which it is employed. That the provisions of the instant property damage liability clause were intended to encompass only injury to or destruction of tangible property is readily apparent from the instrument when examined in its entirety. Not one of the numerous exclusions in the agreement relating to said coverage excludes therefrom any type of occurrence other than that which effects physical specie of tangible property, be it real, personal or mixed. (Exclusions (m), (n) and (o) to coverage B.)

Plaintiff’s entire argument on the subject, moreover, is equally inconsistent with the theory of law upon which it was impleaded; to wit, its active negligence was the procuring factor which occasioned the personal injury to the principal plaintiff. The provisions of our Practice Act regulating third-party actions is explicit in limiting the joining of third-party defendants to persons who “. . . may be liable to him for all or part of the plaintiff’s claim against him. . . .” (Ill Rev Stats (1965) c 110, par 25 (2).) The action over then continues to be in the nature of a claim for reimbursement for personal injuries notwithstanding the independent considerations necessitated by the manner in which this present action was asserted against plaintiff-Harvey.

We feel that under the facts disclosed by the pleadings, DuPont’s claim for reimbursement for expenses to be incurred in satisfying its possible liability for Armstrong’s bodily injuries is a claim for damages for such bodily injuries and not one for damage to the property of DuPont. Plaintiff’s contention that DuPont’s action for indemnity converted an otherwise personal injury action into one for injury to the indemnitee’s property by the simple conduit of third-party practice is furthermore both at variance with the pronounced intention of the insuring agreement and unsupported by precedent in our jurisdiction. Also see Napier v. Banks, 9 Ohio App2d 265, 224 NE2d 158 (1967) and cases cited therein.

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

Order affirmed.

BURKE, P. J. and McNAMARA, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BURKE

license: Public Domain

text:
    Western Pride Builders, Inc., a Corporation, Plaintiff-Appellee, v. Henry Koraska, et al., Together Constituting the Zoning Board of Appeals of the City of Berwyn, and the City of Berwyn, a Municipal Corporation, Defendants-Appellants.
    Gen. No. 52,357.
    First District, Second Division.
    February 6, 1968.
    Rehearing denied March 19, 1968.

      Alan S. Ganz, and Pedersen & Houpt, of Chicago (Richard V. Houpt, Alan S. Ganz, and James K. Stucko, of counsel), for appellants.
    Maurice J. Nathanson, of Chicago (Harry G. Fins, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Appeal was taken by plaintiff to the City of Berwyn Zoning Board of Appeals from the refusal by the local Building Commissioner to issue a building permit. Plaintiff contended before the Zoning Board that it had a right to the issuance of a permit for the erection of a 22-unit, 3-story apartment building with English basement, inasmuch as an alleged zoning classification variation in 1928 changed the subject area from a “single-family dwelling” zoning classification to a “3-story building with English basement” classification. The Zoning Board, after extensive hearings on the question of the alleged variation, found no such variation to have been enacted by the City Council in 1928, and denied plaintiff’s request for “a 22-flat apartment building.” Plaintiff prosecuted an appeal to the Circuit Court of Cook County under the provisions of the Administrative Review Act. The Circuit Court reversed the Board’s order and ordered that the City of Berwyn “issue a building permit to plaintiff in accordance with plaintiff’s application for such permit.”

Defendants prosecute this appeal, maintaining that although the 1928 Berwyn City Council had the power to amend the zoning ordinance with respect to the matter here involved, the Council did not in fact exercise the power; that an enactment by the legislature in 1941, validating certain prior zoning ordinances and regulations of city councils, etc., throughout the State, did not serve to validate, and to raise to the level of an ordinance, the action taken by the Berwyn Zoning Board and City Council in 1928; that although the City of Berwyn published a zoning district map which represented the subject property as zoned “single-family dwelling” but as having been the subject of a variation at a later date, defendants are not estopped from denying the variation claimed by plaintiff; and that the Zoning Board had the authority to consider whether there had in fact been a legal variation in the zoning classification on the subject property.

The record discloses that in August 1928, the Berwyn Zoning Board of Appeals published a notice of public hearing to consider a request by the petitioners (plaintiff’s predecessors in title) that the subject property be rezoned “to allow for the erection of a three-story and English basement apartment building, allowing the usual setback.” It appears that the Zoning Board approved the request, notified the City Council of its decision, and recommended that the City Council allow the variation. At a meeting of the Council, the variation request and the Board’s recommendation were presented, and a motion to concur in the action of the Board was made, seconded and carried. Apart from a letter to the petitioners informing them of the action taken by the Board and the Council, it appears that no further action on the subject was taken by either body.

The zoning ordinance of the City of Berwyn in 1928 permitted amendments thereto only by ordinances duly passed by the City Council. The Zoning Board of Appeals was not then empowered nor in any way authorized to amend or vary existing zoning classifications.

In 1960, pursuant to Ill Rev Stats 1959, c 24, par 73-18, a revised zoning district map was published by the City of Berwyn representing the 1923 classification of the subject property as “single-family dwelling” but indicating that the property had been the subject of a subsequent variation or amendment.

We are in agreement with the contention of the defendants that, although the Berwyn City Council had power in 1928 to amend or vary the existing zoning classification on the subject property, it did not in fact exercise that power.

The 1921 Zoning Enabling Act of Illinois authorized cities, villages, etc., to adopt zoning ordinances and zoning classifications. Ill Rev Stats 1921, c 24, par 66. (See also Ill Rev Stats 1919, c 24, par 62c, and Ill Rev Stats 1921, c 24, par 70.) The Act provided in part that the local zoning board of appeals, which was to be created by local ordinance, would have the power to “recommend to the city Council . . . such ordinances or amendments as it may deem necessary or desirable, including power in specific cases ... to recommend variations of the original ordinance or amendments thereto.” Ill Rev Stats 1921, c 24, par 68. Paragraph 68 of the Act went on to declare that variations from or amendments to ordinances enacted under the terms of the Act shall be made only by ordinance. The legislature in 1923 amended the Act to permit the zoning board of appeals to grant variations directly, rather than merely making recommendations to the local legislating body, if the latter so provided by ordinance. Ill Rev Stats 1923, c 24, par 68. The City of Berwyn’s zoning ordinance, enacted in September 1923, did not grant the Berwyn Zoning Board the authority or power to grant variations, but simply empowered the Board to make recommendations to the City Council with respect to zoning variations and amendments.

The action of the 1928 Zoning Board was nothing more than a recommendation to the City Council that the zoning classification of the subject property be varied to a “3-story building with English basement” classification. The only action taken by the City Council after the Board made its recommendation was on the motion to concur in the said recommendation, without any formal ordinance having been presented to or passed by the Council. The action of the Council amounted to no more than the adoption of a resolution, which cannot substitute for the passage of a formal ordinance which is required by the zoning statute. Chicago & N. P. R. Co. v. City of Chicago, 174 Ill 439, 51 NE 596; Liberty Nat. Bank v. Metrick, 410 Ill 429, 432, 102 NE2d 308.

The Zoning Validation Act of 1941 did not serve to raise the actions of the 1928 Berwyn Zoning Board and City Council to the status of an ordinance. Ill Rev Stats 1941, c 24, par 73-10. The obvious purpose of the Act was to validate all imperfectly and improperly enacted ordinances and regulations relating to zoning. No attempt was made on the part of the Berwyn City Council in 1928 to enact an ordinance, variation or amendment with regard to the subject property to effect a change in its zoning classification, and consequently the Act could not validate that which was void or which did not exist. See People ex rel. Rhodes v. Miller, 392 Ill 445, 449, 64 NE2d 869.

In 1960 the City of Berwyn published a revised district zoning map pursuant to chapter 24, paragraph 73-13 of the Illinois Revised Statutes, which represented the 1923 zoning classification of the subject property as “single-family dwelling” but subject to a subsequent variation or amendment. Defendants are not estopped to deny the alleged variation claimed by plaintiff. The purely ministerial act on the part of a municipal employee in compiling relevant data and publishing a zoning district map cannot serve as the basis for an estoppel without a showing of reliance thereon and action induced thereby on the part of the adverse party, as well as a showing that it would be inequitable to permit the municipality to gain an unfair advantage by retracting that which it had done. Sinclair Refining Co. v. City of Chicago, 246 Ill App 152, 162. The record discloses no evidence that plaintiff was induced to act, to its detriment, on the information contained on the map, nor that the City was gaining an unfair advantage by denying the variation notation appearing thereon with respect to the subject property. It should also be pointed out that the statute requiring publication of zoning district maps provides only that the map reflect the local zoning classifications ; the publication of the map does not constitute the passage of an ordinance giving validation, as variations, to such differences as may exist between the classifications appearing on the map and those existing under the local municipal zoning ordinances.

Plaintiff’s citation of Hickey v. Illinois Cent. R. Co., 35 Ill2d 427, 220 NE2d 415, in support of its position that defendants are estopped to deny the alleged variation because of the existence of the zoning map is unavailing. The Hickey case involved lands near the lakefront on the near south side of Chicago over which the Illinois Central Railroad operates its trains. The Supreme Court denied claims made by the City of Chicago and the State of Illinois to the fee title to these lands on the grounds that for some fifty years prior to the raising of these claims the respective governments disclaimed any interest in the lands, while the Railroad had acted upon the lands, entering leases and making conveyances throughout the entire period. This is clearly not the situation in the case at bar.

Finally, we are of the opinion that the Zoning Board of the City of Berwyn acted within its power in considering whether the original 1923 Berwyn zoning ordinance had been the subject of a variation in 1928 as to the subject property. It was necessary that the Board investigate the nature of the purported variation before making its decision. Worthy of note is the fact that while plaintiff now maintains that the 1965 Zoning Board had no authority to decide whether the 1928 alleged variation was duly enacted, it was plaintiff who initiated the proceedings before the 1965 Board after the local Building Commissioner denied plaintiff’s request for the building permit, requiring the Board to determine the question.

None of the cases cited by plaintiff in support of its position that the 1965 Zoning Board had no authority to look behind the action of the 1928 Board are in point. Plaintiff’s argument, and the cases cited in support thereof, presume that the original 1928 Board action effected the result desired by the petitioners therefor, namely, a variation in the zoning classification of the subject property, and that the subsequent 1965 Board action was a collateral attack on the said prior action. As appears above, the sole function of the 1928 Zoning Board in this respect was to recommend changes to the City Council; it is difficult to understand how the action of the 1965 Board constituted a “collateral attack” on a mere recommendation.

The order of the Circuit Court is reversed and the cause is remanded with directions to enter an order affirming the order of the Zoning Board of Appeals of the City of Berwyn denying plaintiff’s request for issuance of a permit to erect a 22-unit, 3-story apartment building with English basement.

Order reversed and cause remanded with directions.

McNAMARA and LYONS, JJ., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sherman Bickham, Defendant-Appellant.
    Gen. No. 51,062.
    First District, Fourth Division.
    February 7, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), 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. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Sherman Bickham (hereafter referred to as defendant) was indicted for the crimes of rape and taking indecent liberties with a child. He was tried before a jury which returned a verdict finding him guilty of indecent liberties, and the court sentenced him to a term of 14 to 20 years in the Illinois State Penitentiary.

Mildred Bland, mother of Doris Sullivan, the complaining witness, testified that she lived in a three and a half room apartment on the second floor, with her two daughters, Doris and Cynthia Sullivan, and a girl named Mary-Joe; that the girls slept in the living room. She further testified that she was engaged to the defendant; that he did not live with her but spent most of his time at her apartment, and had purchased a record player and kitchen and bedroom furniture for the apartment. She stated that she had frequent sexual relations with the defendant, specifically twice on the morning of June 18, 1965. She further testified that at the time of the trial her daughter Cynthia was in the Geneva home for girls.

Mildred Bland first testified as a witness for the State; she was then called as a witness for the defendant and testified that the complaining witness had told her she hated the defendant and would do anything to put him away. The witness stated that Doris hated the defendant because he tried to run the teenagers out of the house late at night, as the witness wished him to do; that she would still marry him if she could because what her daughter had said was not true. She admitted that her signature was on the complaint, but that she did not know what she was signing. She further testified that she had had the defendant arrested in March; that he was fined $100 and sent to County Jail.

When Mildred Bland was called by the State as a witness in rebuttal she testified that her testimony the day before, concerning her daughter’s wanting to put the defendant away, was not true, and she now wished to change her testimony; that the defendant used to beat her up and she was afraid of him; that when she was on the witness stand the day before she was trying to help the defendant, but that she did not want anything more to do with him.

Doris Sullivan, the complaining witness, testified that she was 15 years old; that the defendant had been living at her home with her mother for about five or six months; that on Friday, June 18, 1965, she went to bed in the living room at about 10:30 p. m., at which time the defendant and his nephew, David Burton, were in the bedroom. She stated that she was awakened by the slamming of a door and she then put on her shoes and pajamas and started to a neighbor’s apartment on the same floor; that the defendant then came out of the bedroom, asked where she was going and where her mother was; that when she told him she didn’t know where her mother was, he pulled her into the bedroom; that she tried to get away from him but he threw her on the bed and got on top of her; that he put his hands around her throat and started choking her, saying he was going to kill her and would kill her mother, too; that he said, “I’ll kill all of you.”

The witness further testified that the defendant continued holding her and choking her; that he pulled down her pajamas and had intercourse with her; that he then told her to go to the bathroom, and when she tried to get away he dragged her back into the bedroom and again had sexual intercourse with her. She testified that the defendant said he was going to kill her and her mother when the mother got home, then said he was sorry, that he didn’t mean it, and that he was sick. She testified that she finally got into the living room where she wrote a note, “Call the police. Quiet. 208,” and dropped it out the window; that she saw a man pick it up and give it to an officer in a squadrol which came along at that time; that the officer then came to the door of the apartment and flashed a light, at which time she pointed to the defendant and said he had raped her. She then ran to the neighbor’s apartment and from there she was taken to a hospital and was examined by a doctor.

On cross-examination Doris Sullivan stated she was in the first year of high school; that the first time she had sexual relations was when she was seven years old, but that since that time she had no sexual relations until the occurrence in question. She stated that she did quarrel with the defendant about her sister Cynthia who was then in Geneva; that she was angry with him because he was “messing with” her sister. She testified that David Burton came to the house the evening of June 18, at about 10 o’clock; that the defendant was already there, and some of her friends were there also. She said she knew where her mother had gone but did not tell the defendant because she knew her mother would not want him to know.

Dr. Rafael Ortez testified that he was a senior resident in obstetrics and gynecology at Billings Hospital and was a licensed physician; that on June 19, 1965, at about 6:30 a. m., he examined Doris Sullivan; that a vaginal secretion taken from her indicated the presence of sperm and there were physicial conditions observed which could have been the result of an act of intercourse.

Officer John Cross testified that he was riding in his squadrol, going east on 63rd Street, when a man approached him and handed him a note; that after reading it he proceeded to the apartment indicated in the note, and the door was opened by the complaining witness, who appeared to be cowering and scared; that she pointed to the defendant and said, “That man raped me.” The witness stated that the defendant was wearing shorts at that time; that he ordered the defendant to get dressed and took him into custody; that he took the defendant and Doris Sullivan to the police station, then took the girl to the hospital.

The defendant, in his own behalf, testified that he was 32 years old, and was temporarily living with Mildred Bland, to whom he was engaged; that on June 18, 1965, at 9:00 a. m., he was with Mildred Bland on the street when he saw his nephew, David Burton; that about 7:30 or 8:00 that evening he and David went to the Bland home where there were four teenagers talking in the apartment; that he and David went into the bedroom and played records; that he went into the living room about 1:00 a. m., and saw the teenagers drinking wine, and he told them they should leave as it was getting late and Doris’ mother would not want them there. He testified that Doris started arguing with him, then said they would leave soon, and he went back to his room with David and went to sleep; that later he was awakened by the flashlight of the policeman. He denied touching the complaining witness or having sexual intercourse with her.

The parties stipulated that if Officer John Downey were called to testify he would state that the complaining witness told him the defendant came into her bedroom and that she wrote the note and dropped it out the window, asking for help. It was further stipulated that Paul Esling, if called, would testify that he is an official court reporter assigned to the State’s Attorney’s office, and that on June 28, 1965, he was assigned to the Grand Jury, at which time and place the complaining witness testified with regard to the defendant that “He grabbed me by the neck and took me in the bedroom. He started choking me, and he twisted my arm behind my back. And he took my pajamas and he tore the top off. And he pulled the other part down and he told me to be quiet and shut up or he would kill me.”

The defendant contends in this court that he did not receive a fair and impartial trial and that he was not proved guilty beyond a reasonable doubt. He first argues that during the cross-examination of the complaining witness by counsel for the defendant, the court interrupted counsel and said, “Mr. Malek, I am very liberal in this cross-examination; but you have cross-examined for fifty minutes now. And I would like you to get down to the issues.” Defendant argues that since this statement was made in the presence of the jury it could have the effect of negating the testimony which had been brought out by defense counsel during the cross-examination. A reading of the cross-examination of defendant’s counsel as set out in the abstract affords sufficient justification for the court’s statement; the testimony was repetitious.

The defendant cites People v. Pelletri, 323 Ill 176, 153 NE 591, where the court held that the trial court has the right to hold the cross-examination within reasonable and proper limits, but it cannot substantially deny cross-examination by unduly limiting it. Also cited is People v. Coli, 2 Ill2d 186, 117 NE2d 777, which is not in point because it is an issue of identification, and it was held that under those circumstances the cross-examiner should be given wide latitude.

In People v. Smith, 63 Ill App2d 369, 211 NE2d 456, in response to a question of defense counsel, the court said it could comment on the evidence and thought it not material to the case; and when defense counsel was cross-examining a witness relative to the physical characteristics of an alley, it was said, “This is absolutely immaterial in this case, . . . Why spend time on this monkey business.” Again the court overruled an objection of defense counsel and had a discussion concerning the ruling; the court said, “Do I have to be any more specific with you, . . . ?” The court held at page 377, that “while the trial judge must be cautious to conceal his impressions or feelings, he must conduct the trial so that it proceeds with reasonable dispatch and at the same time maintain the dignity and order of the courtroom. Both the State and the defendant must be given a full and complete opportunity to present their respective cases in full. Such requirements are difficult of attainment, and particularly so if the trial judge permits himself to be sidetracked or led astray by the provocation of counsel. It would be a dangerous precedent to permit counsel to take advantage of statements of the trial court which were either invited or provoked by such counsel . . . We do not believe that the court’s comments were such as to convey to the jury a feeling of hostility or prejudice toward the defendant and thereby deny to him a fair trial, . . .”

In People v. Gilbert, 12 Ill2d 410, 147 NE2d 44, the court said, at page 415:

“The court was well within its discretion in restricting such cross-examination. A cause will not be reversed for alleged improper rulings in that respect unless such discretion has been clearly abused. (People v. Jones, 343 Ill 291.) The ruling was neither improper nor an abuse of discretion.”

In the instant case we make the same holding.

The defendant then argues that he was prejudiced before the jury and urges that the court improperly questioned David Burton, a witness for the defendant. While David was testifying on cross-examination, the following occurred:

“Q. Did you take a nap there until 2:30?
“A. I just continued playing records.
“The Court: You were playing the records in the same room ?
“A. Yes, sir. That’s where the record player is.
“The Court: And your uncle was sleeping, and you were playing records in the same room?
“A. Yes, sir.”

Thereupon defendant moved for a motion for mistrial, which the court denied. Counsel for defendant stated to the court: “It’s apparent that the Court has taken little credence in this witness’ testimony by that question.” The court stated that it could not understand the questioning and did not know whether the witness meant he was playing records in the bedroom or the living room.

It has been held that the court may ask questions of a witness in the trial of the case. People v. Mosley, 23 Ill2d 211, 177 NE2d 851. In People v. Green, 17 Ill2d 35, 160 NE2d 814, the court held that the propriety of judicial examination is to be determined by the circumstances of each case and the trial judge, as a seeker for truth, may be entirely justified in making pertinent inquiries. See People v. Hopkins, 29 Ill2d 260, 194 NE2d 213.

The defendant argues that the questions indicated that the court did not believe the testimony of the witness in the instant case, and that that impression was thereby conveyed to the jury. The court explained that the question was asked to determine where the records were being played. That is understandable, since the defendant testified that on June 18, at about 7:00 p. m., he and his nephew David went to the apartment where the complaining witness lived; that when he arrived there were four people in the apartment. He stated: “When I arrived there with David at 7:00, we goes in the living room and plays some records. Then we set and talked and listened to records.” The defendant also testified that when he came to the apartment he and David went to his room and played some records. We have to take into consideration the fact that there was also testimony that records were played at the home of David Burton. In our opinion, the question of the court was an attempt to determine where the records were played, and did not give the jury the impression of the court’s disbelief in the testimony of the witness. The question was not reversible error.

The defendant relies on People v. DeLordo, 350 Ill 148, 182 NE 726. In that case the quoted record indicates (and the Supreme Court so found) that the trial judge continually made comments on the evidence, interrupted the examination of witnesses, and questioned witnesses in such manner as to disclose his opinion as to the weight or credibility of their testimony, and further, commented on the failure of defendant to produce evidence. The facts stated in that case are not at all similar to the situation before us.

The defendant also argues in this court that he was prejudiced because during the direct examination of the State’s witness the State handed over police reports and Grand Jury testimony to defense counsel. At the conclusion of the direct examination of the complaining witness, the State asked that a certain paper be marked Plaintiff’s Exhibit 6 for identification, then stated for the record: “. . . People’s Exhibit number six for identification is a five-page typewritten document consisting of the testimony of this witness before the Cook County Grand Jury . . . And as the Defense has demanded a copy of this in writing, we now turn over People’s Exhibit number six for identification.” Mr. Malek [attorney for defendant] said, “Acknowledge receipt of the same. Thank you, Mr. Nellis.” The State then asked to have the reporter mark People’s Exhibit #7 for identification. The court interrupted and said that Mr. Malek had stepped out, and when he returned the court said, “Mr. Malek, would you ask the sheriff to get you water the next time so that you don’t have to leave the court room?” Mr. Malek said, “I knew what Mr. Nellis was going to do.” Mr. Malek added, “I’m sorry, Your Honor.” The Assistant State’s Attorney stated that People’s Exhibit #7 for identification consists of five typewritten pages containing in part statement of the complaining witness to the Chicago Police Department. The exhibit was then turned over to Mr. Malek, who acknowledged receipt of it.

In his argument in this court the defendant takes the view that defense counsel had walked out of court so he would not be placed in the position of having to accept the documents. In support of their contention the defense cites People v. Beard, 67 Ill App2d 83, 214 NE2d 577, in which case the State’s Attorney had turned over the requested statement in the presence of the jury and further offered to stipulate as to the contents of the statement, and in his argument to the jury referred to the statement and to the fact that he had given it to defense counsel. At that time defense counsel objected and asked for a mistrial. The State’s Attorney further argued about the consistency of the police statements with the statements of the witness on the stand. The court pointed out that at three points in the trial the defense, out of the presence of the jury, requested the People to deliver over any statements which the State’s witness may have given to the State’s Attorney or to the police prior to the trial. Each time the court told the defense that such request had to be made in the presence of the jury, and overruled defendant’s objections to such procedure. The court held that such conduct on the part of the trial court was error.

It differs greatly from the instant case where the defendant received with thanks one of the statements. No reference to it was made in the argument and there was no objection made at the time by counsel for defendant. The giving of the document by the State’s Attorney to the defendant in the presence of the jury, under the circumstances, was not reversible error. However, where the defendant, prior to the trial, requests that the State supply him with certain documents relating to the case which are in the State’s possession, the documents should not be presented to the defendant or his attorney in the presence of the jury. The proper procedure is for the Assistant State’s Attorney to ask for a recess and then turn over the documents out of the presence of the jury.

The defendant further argues that he was not proved guilty beyond a reasonable doubt and that the complaining witness’ testimony is not corroborated. This latter is not entirely in accord with the facts. It could be considered that the fact of the complaining witness throwing the note out the window and the consequent arrival of the police promptly on the scene was corroboration, together with the facts disclosed in the medical examination. It has been held repeatedly that the credibility of witnesses is a matter to be determined by the trier of the facts. In the case before us, the defendant stated in his direct examination that on September 18, 1960, in the Criminal Court of Cook County, he had been convicted of rape and had been in the penitentiary until October 1963. That testimony was a matter which the jury was entitled to consider in determining the credibility of the testimony of the defendant with reference to what happened at the time in question.

The judgment of the Circuit Court is affirmed.

Affirmed.

ENGLISH and DRUCKER, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    De Kalb Savings and Loan Association, Inc., a Savings and Loan Association, Plaintiff-Appellant, v. Justin Hulman, Savings and Loan Commissioner of the State of Illinois, and H. H. Belding, Jr., et al., Savings and Loan Board of the State of Illinois, Defendants-Appellees.
    Gen. No. 51,824.
    First District, Fourth Division.
    February 7, 1968.

      Arthur Abraham and Henry S. Frank, of Chicago, for appellant.
    William G. Clark, Attorney General of the State of Illinois, of Chicago (Richard A. Michael, John J. O’Toole, and Robert F. Nix, Assistant Attorneys General, of counsel), for appellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff sought a mandamus to compel the Savings and Loan Board of the State of Illinois (hereinafter referred to as “Board”) to grant a hearing on its objections to the order of the Savings and Loan Commissioner approving the license application of the Security Savings and Loan Association of De Kalb. The complaint alleged in relevant part that on December 1,1965, the Savings and Loan Commissioner of the State of Illinois (hereinafter referred to as “Commissioner”) approved the application of Security Savings and Loan; that prior to this, on November 10, plaintiff had sent written notice to the Commissioner of its desire to object to the approval of the application; that on November 16, 1965, when plaintiff orally advised the Commissioner of its intent to have a hearing on its objections, the Commissioner stated that a formal written notice of such intent would not be required; that on December 31, 1965, it filed a complaint with the Commissioner stating reasons for setting aside his order and that on January 28, 1966, the defendants denied the request of plaintiff for a hearing before the Savings and Loan Board of the State of Illinois.

Defendants moved to dismiss the complaint because plaintiff’s remedy was a suit under the Administrative Review Act rather than a mandamus and because the complaint failed to state a cause of action. Plaintiff appeals from the trial court’s order dismissing the complaint with judgment for defendants.

Plaintiff first contends that mandamus was a proper remedy and that it was not limited to a suit under the Administrative Review Act. Plaintiff argues that it is clearly the Board’s duty to grant it a hearing under the terms of section 861, chapter 32, Illinois Revised Statutes, 1965, which provides for a hearing before the Savings and Loan Board for parties “aggrieved” by the decision of the Savings and Loan Commissioner. (See North Federal Savings & Loan Ass’n of Chicago v. Becker, 24 Ill2d 514, 182 NE2d 155, which holds that an economic competitor is a party aggrieved.) Section 864, chapter 32, Illinois Revised Statutes, 1965, expressly provides for the review of decisions of the Savings and Loan Board under the Administrative Review Act. Section 2 of the Administrative Review Act (Ill Rev Stats, 1965, c 110, § 265) provides in relevant part:

This Act shall apply to and govern every action to review judicially a final decision of any administrative agency where the Act creating or conferring power on such agency, by express reference, adopts the provisions of this Act. In all such cases, any other statutory, equitable or common law mode of review of decisions of administrative agencies heretofore available shall not be employed after the effective date hereof.
Unless review is sought of an administrative decision within the time and in the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision. (Emphasis added.)

Plaintiff argues that the instant case is controlled by Frank v. State Sanitary Water Board of Illinois, 33 Ill App2d 1, 178 NE2d 415. There the court determined that mandamus was a proper remedy when the aggrieved nonparty was refused the right to intervene in the administrative hearing and therefore had no standing to seek an administrative review. Frank is inapplicable since in the instant case plaintiff is seeking a mandamus to review the order denying it a hearing, a proceeding to which it was a party. Plaintiff’s only proper remedy was by administrative review. In People ex rel. Chicago & N. W. Ry. v. Hulman, 31 Ill2d 166, 201 NE2d 103, at page 169, the court stated:

. . . the Administrative Review Act exclusively applies to and governs every action to review judicially a final decision of an administrative agency where the act creating or conferring power on the agency provides such manner of review by express reference.

Plaintiff’s second contention is that even if its proper remedy was administrative review, the Administrative Review Act requires no magic words. It points out that it has substantially fulfilled the requirements of the Administrative Review Act regarding content of the complaint and time of filing and asks that we consider its complaint as a petition for administrative review. The Administrative Review Act was intended to simplify and unify the various procedures for attaining judicial review of administrative decisions. People ex rel. Fike v. Slaughter, 31 Ill App2d 175, 175 NE2d 585. The legislature wished to provide a simple mode of review and eliminate the complicated traditional actions. Had the legislature wished only to provide an additional mode of review it would not have been necessary to include section 2 of the Administrative Review Act (supra) prohibiting other forms of review. The statute is explicit and the plaintiff was apprised of his error in time to amend his complaint, but made no effort to do so. The complaint sought injunctive relief and a writ of mandamus. An examination of it does not show proper compliance with the Administrative Review Act. The complaint pleads ultimate facts without producing the record thereof and is therefore inadequate. Krachock v. Department of Revenue, 403 Ill 148, 85 NE2d 682.

Although our ruling on its first contention makes it unnecessary to do so, we will briefly discuss plaintiff’s argument that it is entitled to a hearing under Illinois Revised Statutes, 1965, chapter 32, section 861, which reads in relevant part:

The Board shall upon the verified complaint in writing of any person setting forth facts which if proved would constitute grounds for reversal or change of any decision, order or action of the Commissioner grant a hearing thereon. If the aggrieved party desires such a hearing, he shall, within 10 days of receipt of notice of such decision, order or action, file written notice with the Board of intent to demand a hearing and, shall, within 30 days of receipt of notice of such decision, order or action, file his verified complaint in writing. (Emphasis added.)

Defendants point out that plaintiff has failed to follow the procedure of section 861 and maintain that because of this failure plaintiff is not entitled to a hearing. Section 861 requires that plaintiff notify the Savings and Loan Board within ten days of receipt of notice of the decision of its intent to demand a hearing and within thirty days file a complaint with the Board. All of plaintiff’s notifications of intent to demand a hearing, as well as the complaint itself, were directed to the Commissioner rather than the Board. We think that there is a real and substantial distinction between the Board and the Commissioner for it is the Commissioner’s decision which the Board would review. The Commissioner would be an adverse party before the Board. Of the two purported notices of intent to demand a hearing the written one was filed with the wrong party twenty days before the decision. It stated only that plaintiff wished to object to the application of its competitor. This is more suggestive of a desire to intervene than a desire to seek a review under section 861. The second purported notice occurred fourteen days before the decision and did describe a hearing under section 861. It is apparent from a reading of section 861 that notice was to be filed after the decision was made. Plaintiff argues that these provisions were only directory and that compliance with them was not a condition precedent to a hearing. Plaintiff refers us to a number of cases holding that provisions of various statutes were directory. None of these cases discusses situations similar to that before us. On the other hand in Skokie Federal Savings and Loan Ass’n v. Savings and Loan Board of the State of Illinois, 88 Ill App2d 373, 232 NE2d 167, the court discussed a similar set of facts. There the plaintiffs sought review under the Administrative Review Act of the Savings and Loan Board’s order denying them a hearing under section 861. Plaintiffs had sent written notice to the Board within the ten-day period but the notice referred explicitly to their intent to seek judicial review under the Administrative Review Act rather than apprising the Board of an intent to seek a review under section 861. Thereafter, and within the thirty-day period, plaintiffs filed the requisite complaint with the Board seeking a hearing under section 861. The court held that the requirement of notice within ten days was mandatory and that plaintiffs, due to their explicit reference to administrative review rather than a hearing before the Board, had failed to comply. The court said at page 5 that it would “not interfere with the exercise of the legislatively created powers of an administrative agency absent a showing that the agency’s actions were palpably arbitrary, unreasonable, or capricious.”

Plaintiff in the instant case failed to comply with section 861 in the following respects:

1. Both the complaint and notice of intent were sent to the Commissioner instead of to the Board, and
2. Statutory notice was not sent within the prescribed ten-day period.

Therefore we cannot find that the denial of a hearing was unreasonable.

Finally, plaintiff contends that even if the requirement of a written filing within ten days was mandatory, the fact that the Commissioner advised it that formal notice would not be necessary should estop the agency from using this omission to deny a hearing. Since the statute explicitly requires that the written notice be given to the Board, it could not be held that the Commissioner had the right to waive this notice for the Board.

The judgment of the Circuit Court is affirmed.

Affirmed.

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

       Plaintiff alleged in the complaint that it never received notice of the Commissioner’s decision but it failed to answer defendants’ affidavit and exhibits showing receipt of such notice by plaintiff and by its attorney. Plaintiff makes no point on this appeal of its alleged failure to receive notice.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    Owen Shaw, Plaintiff-Appellee, v. Orval Close, Defendant-Appellant.
    Gen. No. 51,537.
    First District, Third Division.
    January 11, 1968.
    Rehearing denied February 9,1968.

      Paulson and Ketchum, of Chicago (Thomas R. O’Bryan, of counsel), for appellant.
    Melvin A. Garretson, of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

The plaintiff’s automobile was struck in the rear by an automobile driven by the defendant. The plaintiff executed a release which, for the sum of $73, discharged the defendant from all claims growing out of the accident. Excluded from the release, however, was the subrogation right of the plaintiff’s insurance carrier to recover from the defendant property damages in excess of the first $50 which the plaintiff was required to pay because of the deductible clause in his policy.

The plaintiff sued the defendant in his own name for his total repair bill and the defendant moved to strike on the ground that the release barred the plaintiff from bringing the action. The motion was denied, a jury trial was held and a verdict was returned in favor of the plaintiff. The verdict was for $538, although the uncontradicted evidence showed that the repair bill for the plaintiff’s car amounted to $804.92.

The principal contention for the defendant-appellant is that the plaintiff’s complaint should have been stricken. Subordinate contentions are that the trial court committed reversible error in refusing to send instructions, which had been read to the jury, to the jury room, and that the verdict was an obvious compromise which should not be permitted to stand.

A release is the giving up or abandoning of a claim or right to the person against whom the claim exists. Manthei v. Heimerdinger, 332 Ill App 335, 75 NE2d 132 (1947). If executed with knowledge of its meaning, it bars recovery in a cause of action covered by the release. Kusturin v. Chicago & A. R. Co., 287 Ill 306, 122 NE 512 (1919). Where an injured party executes a release to the tortfeasor of any and all claims which he may have because of an accident, there arises a bar to any action against the tortfeasor by either the injured party or his insurer-subrogee. Inter-Insurance Exchange of Chicago Motor Club v. Andersen, 331 Ill App 250, 73 NE2d 12 (1947). The scope and extent of a release, however, depends on the intent of the parties as expressed in the instrument. Cf. Frank Rosenberg, Inc. v. Carson Pirie Scott & Co., 28 Ill2d 573, 192 NE2d 823 (1963); cf. Lurie v. Linderman, 11 Ill App2d 76, 136 NE2d 588 (1956); 76 CJS, Release, § 51 (1952). Here, the release was general and by its terms the parties clearly intended to include all claims arising from the accident except the subrogation interest of the insurance company.

Thus, under the release, the only action which remained was that of the insurance company. This action had to be brought either in the name of or for the use of the company. The applicable statute states:

“Any action hereafter brought by virtue of the subrogation provision of any contract or by virtue of subrogation by operation of law shall be brought either in the name or for the use of the subrogee . . . .” Ill Rev Stats, 1965, c 110, § 22(3).

This statute simply means that the interest of a subrogee cannot be concealed in any proceeding brought for its benefit. It must be either named as the plaintiff or disclosed as the real party in interest. Such is the situation in the case at hand. The plaintiff released any and all claims that he might have had against the defendant; the release operated as a bar to all claims except those reserved to the subrogee. The present action, therefore, had to be brought in the name of the subrogee itself or in the name of the plaintiff for the use of the subrogee. Since it was not, it contravened the statute. It makes no difference that the plaintiff complains that he would have been prejudiced by revealing the interest of the subrogeeinsurance company, or that the defendant has not shown that he was prejudiced by the action being brought in the plaintiff’s own name. The action was not in accord with the controlling statute and the court should have granted the defendant’s motion to strike the complaint.

Where the right of subrogation exists an action may be brought in the name of the insured if the insured has an interest in the suit and is entitled to recover something, if only a nominal sum, over and above the amount of the subrogation claim. The authorities cited by the plaintiff stand for this proposition. Osgood v. Chicago & N. W. Ry. Co., 253 Ill App 465 (1929) (construing former section 18, the substantially identical statute to section 22 (3)); Byalos v. Matheson, 328 Ill 269, 159 NE 242 (1927); Ebel v. Collins, 47 Ill App2d 327, 198 NE2d 552 (1964). See Historical and Practice Notes, SHA, c 110, § 22. In the Osgood case, for example, the plaintiff sustained property damage to his automobile in a collision with the defendant railroad. A portion of the damages, over and above the $50 deductible clause, was paid to the plaintiff by his own insurance company. The plaintiff then brought suit against the defendant in his own name. This action was challenged by the defendant on the ground that it had to be brought by the subrogee or by the subrogor for the use of the subrogee. However, the Appellate Court rejected this contention and permitted the owner, who had only a relatively small interest in the litigation, to bring the action in his own name.

In the Osgood case and in the other cases cited by the plaintiff, the party suing in his own name may have recovered some amount, no matter how small, in excess of the subrogation claim. In the present case, however, no such recovery was possible because the plaintiff had released his entire cause of action. Thus, the plaintiff was bound by the statute. Accordingly, the judgment of the Circuit Court will be reversed and the cause remanded with direction to grant the defendant’s motion to strike the complaint.

In view of our conclusion the two subordinate points raised by the defendant require no explication. We will merely state that the trial judge was in error when, in response to a request that the written instructions be given to the jury, he said: “No, no, the instructions never go to the jury,” and when he refused to send them to the jury room. Ill Rev Stats 1965, c 110, § 67 (2). In reference to his second point, the defendant has no reason to complain that the damages awarded by the jury were for an amount smaller than proved by the plaintiff’s evidence. Abramson v. Briardale Builders, Inc., 20 Ill App2d 600, 156 NE2d 607 (1959).

Reversed and remanded with direction.

SCHWARTZ and SULLIVAN, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward J. McCormick, Defendant-Appellant.
    Gen. No. 51,242.
    First District, Third Division.
    January 11, 1968.
    Rehearing denied March 6, 1968.

      James P. Chapman, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carl M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

In a non jury trial, Edward McCormick was found guilty of theft. He was placed on probation for five years with confinement in the House of Correction for the first six months.

He contends that his conviction should be reversed because the indictment was defective, the corpus delicti of the crime was not established and the evidence did not prove him guilty beyond a reasonable doubt.

The Stavros Farm Equipment Company, Wheeling, Illinois, was burglarized the night of November 8th or early in the morning on November 9, 1963. A snowplow, a seven-foot plow blade, a battery for a diesel tractor, a shovel and a tire and wheel were among the items stolen. McCormick was arrested around 1:00 a. m., November 9th, about a mile from the Stavros Company, after a Wheeling police officer observed him driving a truck which had its rear lights and license plate obscured by a hanging tailgate. He was accompanied by a passenger with whom he attempted to change places as the truck was brought to a stop. In the back of the truck were a snowplow (in an unopened carton), a seven-foot snowplow blade, a diesel battery, a shovel and a tire and wheel. McCormick told the arresting officers that he purchased the snowplows in Wisconsin two weeks earlier, that they had been in the truck all that time, and that he was taking them home. He said he had a bill of sale for them but he did not produce one. Moreover, the carton in the open truck was clean and did not appear to have been exposed to weather. The property in the truck was identified as belonging to the Stavros Company.

At his trial McCormick denied telling the officers that he had bought the plows in Wisconsin. He testified that he bought them and the other articles for $300 on the evening of November 8th from an acquaintance named Gordie, whose address he did not know and whom he had been unable to locate. He explained that he ran into Gordie, whom he had met two or three times prior to the sale, in a tavern in Lake Zurich, and that Gordie talked, as he had on a prior occasion, about some snowplows a friend of his had for sale. McCormick was interested because he was a contractor and in the wintertime plowed parking lots for schools and stores. McCormick further testified that after some dickering about prices, Gordie left to get the merchandise and returned a couple of hours later. In the meantime, McCormick left the tavern, borrowed a truck (which happened to have a battery, a shovel and other articles in it) returned and waited for Gordie. Gordie came back with two plows. After more dickering McCormick bought them for $300 and Gordie threw in the tire and wheel as part of the deal.

As proof of the above transaction, McCormick produced in court a bill of sale and a cancelled check — the former purporting to bear Gordie’s signature and the latter his endorsement. The check, for $200 contained on its back the words, “Part Payment in Full. . . .” McCormick testified that in addition to the check, $100 was paid in cash — fifty or sixty dollars of which was his own money; the balance was borrowed from John Dillon, a friend of his who was present. Dillon testified for the defendant and supported his story of the transaction. However, Dillon stated that he furnished all the cash paid to Gordie — that none of the defendant’s money was used.

The indictment was in three counts. The first charged burglary, the second theft and the third theft by obtaining unauthorized control over property knowing it to have been stolen by another. The trial judge found McCormick guilty but did not designate the count under which the finding was made.

It is evident, however, from the comments made by the judge that he found McCormick guilty of the crime commonly known as “receiving stolen property,” which was the offense specifically charged in the third count. The court accepted McCormick’s story about buying the property but believed that he paid only $200 for the articles which were worth, according to the State’s evidence, over $700. The court noted that the words written on the back of the $200 check: “Part Payment in Full . . .” were inconsistent, and deduced that as originally written the words were: “Payment in Full” and that the word “Part” was written in at a later date so that it could be said that the price paid for the material was more than $200. The court also observed that the property was bought under circumstances which would have aroused the suspicion of an honest man that it was stolen, and that if McCormick had a bill of sale at the time of his arrest he would have been eager to display it.

The defendant’s first contention is that he was convicted under the third count of the indictment and his conviction cannot stand because this count was defective. Count three failed to allege an essential element of theft: the intent to deprive the owner permanently of the use and benefit of his property. Thus, as the defendant claims and the State admits, the count was defective.

The State argues, however, that count two was valid and supports the conviction. Theft, which was charged in count two, is defined in section 16-1, chapter 38, Ill Rev Stats 1963, and, insofar as it is pertinent here, is as follows:

“Sec 16-1 Theft] A person commits theft when he knowingly;
“(a) Obtains or exerts unauthorized control over property of the owner; or
“(b) ----
“(c) ----
“(d) Obtains control over stolen property knowing the property to have been stolen by another, and
“(1) Intends to deprive the owner permanently of the use or benefit of the property; or
“(2) ----
“(3) ...”

Count two alleged a violation under section 16-1 (a) but did not allege a violation in the words of section 16-1 (d).

One good count in an indictment will sustain a general finding of guilty if the evidence is sufficient to prove the crime charged in that count. People v. Link, 365 Ill 266, 6 NE2d 201 (1937); People v. Donaldson, 255 Ill 19, 99 NE 62 (1912); People v. Landis, 66 Ill App2d 458, 214 NE2d 343 (1966). The elements of the crime of receiving stolen property (see People v. Harris, 394 Ill 325, 68 NE2d 728) were established by the evidence and the evidence was sufficient to convict the defendant of this offense. The issue presented, therefore, is whether count two, which said nothing about the defendant’s knowing that the property was stolen by another but which adequately charged him with theft, was broad enough to encompass the offense of receiving stolen property.

In People v. Jackson, 66 Ill App2d 276, 214 NE2d 316 (1966) this court said:

“Section 16-1 describes the offense of theft only— and this was the precise purpose of the legislature in enacting this provision of the code. The purpose was to substitute a generic definition of theft for various statutes which particularized different kinds of larceny.
“Section 16-1 defines the two elements necessary to constitute a theft: a proscribed act and the requisite intent or knowledge. A combination of any one of the enumerated acts and any one of the enumerated mental states describes the prohibited offense. . . . This definition is broad enough to encompass all forms of theft. . . .”

In People v. Nunn, 63 Ill App2d 465, 212 NE2d 342 (1965) this court stated:

“. . . section 16-1 (a) (1) is not limited to the theft of property in which only the actor who initiates the wrongful asportation is guilty of the offense. A person who ‘knowingly obtains or exerts unauthorized control over property of the owner’ is the statutory description of a thief, provided only that his act is accompanied by the requisite mental state. As expressly pointed out in section 15-8 the phrase ‘obtains or exerts control’ over property includes but is not limited to the taking or carrying away of the property. It also includes (though still not exclusively) the bringing about of a transfer of possession of the property. Ill Rev Stats (1963, c 38, secs 15-7 and 15-8.”

The comments of the Joint Committee to Revise the Illinois Criminal Code, SHA, chapter 38, section 16-1, indicate that the Committee intended section 16-1 (a) to include all forms of theft but added (d) and the other specific forms of theft (b) and (c) in order to remove any doubt as to their being covered under the general provisions of subsection (a):

“Subsection (a) is the most comprehensive and probably includes all other forms of theft when combined with one of subsections (1), (2) or (3). . . .
“While the method by which unauthorized control is obtained or exerted is immaterial in subsection (a), and probably, in conjunction with one of the subsections (1), (2) or (3), would cover all forms of theft, the Committee felt that such extreme codification might be too concise, and possibly create some problems of application, in view of the large body of statutory material and offenses it is intended to replace. Subsections (b), (c) and (d) were added, therefore, to cover specifically situations which at first glance, might be considered not covered by subsection (a). Such situations include . . . receiving stolen property. . . .”

Although the Committee cautiously refrained from declaring that subsection (a) covered all forms of theft and limited itself to commenting that it “probably” did, we conclude from the language of the statute, the interpretative decisions of this court and the intent of the drafting committee, that it embraces within its scope all types of theft including that of receiving stolen property.

Since count two was valid, the evidence tending to prove theft by the receipt of stolen property knowing it to have been stolen can be referred to this count and a conviction for this offense sustained.

Of the defendant’s two remaining points, the first— that a verdict should have been directed in his favor at the conclusion of the State’s case because of the failure to prove the corpus delicti — is without substantial merit. In support of the second — that he was not proved guilty beyond a reasonable doubt — the defendant urges that the proof was unsatisfactory in respect to the ownership of the property claimed to have been stolen, the value of the property and whether the tire and wheel were new or used. He argues that he had no reason to suspect Gordie of possessing stolen goods, that his purchase of the property was open and documented, and that the trial judge speculated as to the facts. He also points out that no presumption of guilt for receiving stolen property arises from the mere possession of stolen goods (People v. Grizzle, 381 Ill 278, 44 NE2d 917 (1942)), that the only permitted presumption would be that he himself stole the goods (People v. Hawkins, 27 Ill2d 339, 189 NE2d 252 (1963)).

A court of review must examine the evidence in every criminal case but the judgment of the trial court will not be overturned unless the evidence is so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. People v. Pendleton, 75 Ill App2d 314, 221 NE2d 112 (1966); People v. Vail, 74 Ill App2d 308, 221 NE2d 165 (1966). We have carefully reviewed the evidence and have no reasonable doubt of the defendant’s guilt. The owner of the property was proved to be the Stavros Farm Equipment Company, the value of the property was a disputed question which the trier of facts resolved against the defendant, and there was testimony that the tire and wheel were new. The purchase was not made in the usual course of business. It was made in a tavern, at nighttime, from a casual acquaintance, who was not asked, and who did not produce proof that he was rightfully in possession of the merchandise offered for sale. The trial judge had the right to draw conclusions from the testimony and the exhibits, and his conclusions were not unreasonable. Upon his arrest the defendant acted suspiciously and gave an improbable explanation of his possession of the articles which he later retracted. The bill of sale was not produced at this time and Gordie never appeared to testify.

Direct proof of guilty knowledge and the intent to deprive the owner from again possessing goods stolen from him is not necessary. Elements of the crime may be inferred from all the facts and circumstances including possession of the stolen property. Moreover, it was the duty of the trial judge, as the trier of the facts, to judge the weight and credibility to be given to the witnesses for the State and the defendant. People v. Ray, 80 Ill App2d 310, 225 NE2d 467 (1967). No substantial reason has been presented to this court which did not see or hear the witnesses to overturn the judgment of the court which did.

The judgment is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.


author: JUSTICE SULLIVAN.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Dorsey, a/k/a James Doresy, Defendant-Appellant.
    Gen. No. 51,286. (Abstract of Decision.)
    First District, Third Division.
    January 11, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty and Frederick F. Cohn, Assistant Public Defenders, of counsel), for appellant;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James A. Stamos, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by Not to be published in full.

JUSTICE SULLIVAN.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Samuel Foster, Otherwise Called Charles Pete, Defendant-Appellant.
    Gen. No. 50,713. (Abstract of Decision.)
    First District, Third Division.
    January 25, 1968.
    Barry Gross, of Chicago, for appellant;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Truman Larrey, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by Not to be published in full.

JUSTICE SCHWARTZ.


author: MR. JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leonard Buck, Defendant-Appellant.
    Gen. No. 51,336.
    First District, Third Division.
    January 25, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Barth H. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant, along with two other men, was charged with armed robbery. A motion to suppress evidence was heard and denied. Defendant thereafter waived trial by jury, was found guilty and sentenced to not less than three nor more than six years in the penitentiary. From this judgment defendant appeals.

The only issue presented to this court is that the defendant’s arrest without a warrant was without probable cause and that the evidence seized in a search incidental to the arrest should have been suppressed on motion. At the trial of the case all facts were stipulated between the People and defense counsel, including the physical exhibits consisting of a gun and money which were the subject matter of the defendant’s motion to suppress evidence.

The facts leading up to the arrest and search are as follows: Detective Ferenzi, while investigating a burglary not related to the present case, saw the car in which the defendant was riding at approximately 12:00 o’clock noon on August 7, 1965, in the vicinity of Walton and Washtenaw Streets within the general vicinity of a savings and loan association located at 936 N. Western Avenue. Officer Ferenzi circled the block and a few minutes later again saw the car occupied by the defendant and two other male negroes, all of whom were dark-complected. Upon seeing this automobile for the second time in this predominantly all white, residential area, he became suspicious and wrote down the automobile license number on his clipboard; the number was 532-199, Illinois. A few minutes later Ferenzi heard on his police radio of a robbery at the savings and loan association above mentioned. He immediately went to the scene of the robbery. He learned there that the persons who committed the armed robbery were two darkskinned negroes. No one at the robbery scene mentioned to Ferenzi anything pertaining to an auto being used in the robbery. Ferenzi immediately radioed to Police Communications Center and asked for a check of the license number he had seen on the Pontiac shortly prior to the robbery. The reply was that it was issued for a Chrysler automobile. He then informed the dispatcher the description of the automobile, which was a 1954 to 1956 Pontiac, green and cream in color, license number 532-199, and notified him that it was occupied by three male negroes who were dark-complected. He also notified the Communications Center that the front fenders had a brown primer paint on them. He said that this automobile may have been used in the robbery of the savings and loan association. He also gave a description of the three occupants of the car. The radio dispatcher relayed the message but said that a Chrysler automobile was involved. Ferenzi called him back and said the plates were on a Pontiac and the dispatcher corrected his message over the radio. A short time later Ferenzi heard the radio dispatcher give out a broadcast that the vehicle had been sighted. Ferenzi thereupon proceeded to the vicinity of Roosevelt Road and Union Avenue in the City of Chicago, where the car had been sighted.

Officer John J. McCIeod, a Detective in the Robbery Division, was riding in an unmarked police car on Saturday, August 7,1965, when he received messages from the Police Communications Center relative to an armed robbery that occurred at a savings and loan association located at 936 N. Western Avenue. Descriptions of the car were given over the simo-broadcast system of the police radio. He heard that three men were wanted for an armed robbery. The police radio message stated a 1954 to 1956 Pontiac, containing the license number heretofore mentioned, was being sought in connection with the robbery. The color of the car, white over green, was also given, as well as the fact that the front fenders had a primer paint on them of a brown color. Immediately prior to the time that he saw the automobile he heard another simobroadcast stating that the vehicle in question was going south on Union from Roosevelt Road. The vehicle was stopped at 14th Place. He had already crossed the intersection. The 1955 Pontiac made a left-hand turn. Officer McCIeod made a U-turn and followed the vehicle. The Pontiac went east on 14th Place from Union to Jefferson. McCIeod got parallel to the car, drew his revolver and ordered the driver to stop, “Police.” He ordered all passengers, three men, out of the vehicle. He was on the left side of the Pontiac. As he got out of his car and ordered the men out of the Pontiac, another vehicle driven by another Detective was standing to the rear of that vehicle. The other detective was Detective Givens. In the front seat of the vehicle there was a brown colored paper bag, open at the top, and a blue steel revolver was also on the front seat. There was no difference between the vehicle described in the broadcast and the vehicle that he stopped relative to license number, color or year model. The three men got out of the Pontiac and were frisked by Detectives McCleod and Givens. A man named Williams was the driver of the car. A search of Williams disclosed nothing. McCleod further testified that his only basis for stopping that car was the fact that he had received the radio message from the Police Communications Center.

Detective Marcus Givens testified that he was employed as a police officer on August 7, 1965; that he arrested the three defendants in the Pontiac automobile. He testified that the automobile and the three defendants were searched. He found money, a wallet and a gun which were seized. Shortly after noon on August 7, 1965, he was alone in an unmarked detective car. Shortly after noon he heard a message broadcast to his vehicle concerning a robbery of a savings and loan association at 936 N. Western Avenue, and the description of the automobile wanted for this offense was broadcast over the air. He also described the model, color and license number of the Pontiac, and that it was occupied by three male negroes, and that the car had primer paint on the front fenders. At the time he heard the message, which also stated that the offense involved was armed robbery, he was at Roosevelt and Canal. He then drove to Roosevelt and Union and parked beside the Dan Ryan Expressway. He was watching for the car described in the radio message on the expressway. He observed the car turn off Roosevelt Road onto Union and it proceeded south on Union Avenue. He noticed the green and cream Pontiac with the license number described and then started following it. He contacted the Police Communications Center and told them he was following a car fitting the description of the one wanted. He radioed for assistance. At Jefferson Street Detective McCleod and he (Givens) went on either side of the car, stopped it and ordered the three men out. Williams was driving the car. Jackson was in the front seat beside him, and Buck, the defendant here, was in the rear seat. After the occupants had left the car the three were searched. Under the shirt of Jackson they found a large quantity of money. Buck was wearing coveralls and there was a wallet in the back pocket of the coveralls. The wallet was given to Detective Givens by Buck as they were being taken into the police station. When Buck gave the wallet to Detective Givens he told Detective Givens to take that too, because it was taken from one of the men at the holdup site.

The motion to suppress was filed by the defendant, Leonard Buck, together with Freddie Jackson, who is not a party to this appeal.

The petitioner stated that the search and seizure of the proceeds of the armed robbery were in violation of sections 6 and 10 of Article II of the Constitution of the State of Illinois. Section 6 of Article II of the Constitution of Illinois, 1870, is as follows:

“Sec. 6. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized.”

Section 10 of Article II of the Constitution of Illinois is as follows:

“Sec. 10. No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense.”

The officers at the hearing on the motion to suppress testified that they had no search warrants at the time of the arrest.

As was heretofore mentioned, the defendant Buck contended that his arrest without a warrant was without probable cause, and that the evidence seized in a search incidental to the arrest should have been suppressed pursuant to his motion.

In People v. Jones, 31 Ill2d 42, 47, 198 NE2d 821, it was stated that reasonable cause means something less than evidence which would result in a conviction, and it is also established that reasonable cause may be founded upon evidence that would not be admissible at the trial. It was also stated in that case that the existence of reasonable cause which would justify an arrest without a warrant depends upon “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Citing Brinegar v. United States, 338 US 160, 175, 93 L Ed 1879.

In Jones, supra, it was also stated on page 47, “But at the same time it has been observed that police officers ‘often must act upon a quick appraisal of the data before them, and the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to catch criminals.’ People v. Watkins, 19 Ill 2d 11, 19.”

It is contended by the defendant that the information received from the police communications radio was based on information supplied by Officer Ferenzi, who in directing that the occupants of the auto be arrested, acted upon a “hunch,” “intuition,” and “guesswork.” The defendant also argues that information unreliable at its source cannot be made reliable merely because it is received secondhand or thirdhand, through an intermediary source that is itself reliable.

In People v. Brown, 38 Ill2d 353, 231 NE2d 577, the court said:

“An examination of the record indicates that the arresting officers had valid reason to suspect, at the very least, that the automobile driven by the defendant had been stolen. It is the duty of police officers when confronted with circumstances giving an appearance of criminal activity to investigate in an effort to determine whether such criminal activity, in fact, exists. . . . Faced with the situation as it existed at the time of the arrest, we find that the search of the trunk by the police officers, in an áttempt either to ascertain the ownership of the automobile or to determine whether a crime had, in fact, been committed was not unreasonable. Consequently, the trial court did not err in denying Brown’s motion to suppress. See People v. Jones, 38 Ill2d 427, 231 NE2d 580.” (Emphasis supplied.)

Certainly the arresting officers in the instant case had, at the very least, a valid reason to suspect that the three occupants of the car which they stopped had participated in an armed robbery, and it was their duty to investigate to determine whether a crime had, in fact, been committed by them.

In People v. McFadden, 32 Ill2d 101, 203 NE2d 888, an unknown informer gave information to a State narcotics officer. The officer gave the information to a Chicago police officer, who, in turn, made the arrest. Neither the State narcotics officer nor the Chicago police officer knew whether the informer was reliable. The court regarded the State officer as the informer, and the arrest was upheld on the apparent reasoning that the State officer was known to the Chicago officer as the supplier of reliable information, and as such the Chicago police officer could make a legal arrest. The court there stated that the probable cause of the arresting officers was not based solely on Ware’s (State narcotic inspector) past reliability, as the defendant argued, but was based on his past reliability plus their verification of the present information except for possession of the narcotics by defendant. Both of the arresting officers in the McFadden case testified that the information from Ware, the State narcotic inspector, had always been reliable, but they also knew that his information was based on a tip from an informer. The defendant, upon alighting from a northbound bus at 61st and Halsted was asked by the arresting officer if he was McFadden and he said yes. They then arrested him. His description fit that given by Ware. A search ensued and the narcotics were found.

In the instant case the arresting officers received their information from an admittedly reliable source, the Police Communications Center. They were given the year model, make and color of the car, a description of the primer paint on the front fenders, the license number on the car and a description of the occupants of the car. The probable cause of the arresting officers was not based solely on the past reliability of the Police Communications Center but was based upon the past reliability of the Police Communications Center plus their verification of the present information they had received from the center except for the fruits of the crime. The court in People v. McFadden, supra, held that such a search was reasonable. Furthermore, Ferenzi, the informing officer, had reasonable grounds to believe that the suspects and automobile here involved were connected with the crime. He had learned that the license plates were registered as on a Chrysler but in fact were on a Pontiac. That would give him reasonable grounds to believe that the auto or the plates were stolen and that the occupants of the automobile, having been in the immediate vicinity of the armed robbery, were the perpetrators of that crime.

People v. Brinn, 32 Ill2d 232, 204 NE2d 724, involved a case where searches were made pursuant to written statements of Richard Morrison, a confessed burglar, and interviews between Morrison and police officials in which he detailed the commission of burglaries with the defendants (police officers), and in which he stated that stolen property could be found in the homes of the defendants. Search warrants were prepared, and teams of police officers were ordered to attend a meeting. There Captain Hackett told the officers that a man in custody had accused certain police of aiding him in burglaries and in receiving the proceeds. Captain Hackett also told the teams that they had ten search warrants for the men and that they were to go to the residences of the men at a certain hour and keep the premises as they found them until Chief Newey and Morrison arrived. There were obvious defects in the search warrants, yet the trial court held that the search and seizure of the property in question was justified, not on the basis of the search warrants, but on the basis that the searches and seizures were incident to lawful arrests. The court said the following on page 242:

“It is true that the teams of police officers making the search had not read Morrison’s statements and had not talked to him, but the reasonableness of their actions is readily justified by the information submitted to them by their superior.”

The court also commented that it felt that the detailed accusations of Morrison, together with corroborating facts concerning particular burglaries, were sufficient to form a basis for a reasonable belief that a felony had been committed and that the defendants had committed it.

There was no evidence as to the past or previous reliability of the informant Morrison, yet the court upheld the decision of the trial court in refusing to suppress the evidence and further held that the evidence was obtained by reasonable searches incident to lawful arrests.

In People v. Barbee, 35 Ill2d 407, 220 NE2d 401, on page 411, the court said:

“. . . so the legality of the conduct of the officers in this case is to be determined upon an appraisal of the situation that confronted them, and not upon the success or lack of success of their efforts.”

And on page 412 the court said:

“The ‘practical demands of effective criminal investigation and law enforcement,’ (Elkins v. United States, 364 US 206, 222, 4 L Ed2d 1669,) required that the defendant be apprehended, regardless of the risks involved in arresting him.”

In People v. Moore, 35 Ill2d 399, 402, 220 NE2d 443, the court said:

“But the fourth amendment is concerned with unreasonable searches and seizures, and the reasonableness of the conduct of police officers is not to be narrowly circumscribed by the chance boundaries of decided cases.”

And on page 403 of the same case the court said:

“In this case, moreover, the officers were confronted in the middle of the night with a critical situation. It was reasonable to assume that the explanation for the shots fired at officer Clifford might be found in the car which the defendants abandoned when they fled. The officers were under the highest duty to determine the cause of that shooting, and to apprehend the men who fired the shots. Their failure to act promptly might have subjected them to discipline. When a police officer could justifiably be disciplined for failure to act, his action can hardly be characterized as unreasonable.”

Officers McCleod and Givens had received detailed communications over the police radio. It would, in our opinion, have been unreasonable for those arresting officers not to make the arrest and consequent search. Certainly, they would have subjected themselves to justifiable disciplinary action for failure to act, and when such is the case their action can hardly be characterized as unreasonable.

We believe under the facts shown by the record in this case the information received by the arresting officers from the Police Communications Center, together with their verification thereof, constituted reasonable grounds for the arrest of the defendants, and the search of the defendants and the car subsequent thereto.

Judgment affirmed.

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


text:
    Mary M. Higgin, Plaintiff-Appellee, v. Lenore E. Higgin, Defendant-Appellant.
    Gen. No. 51,819. (Abstract of Decision.)
    First District, Third Division.
    January 25, 1968.
    William D. Larkin, of Chicago, for appellant;
    Henehan, Donovan & Isaacson, of Chicago (John D. Bolger, of counsel), for appellee.
   Opinion by Not to be published in full.

JUSTICE SCHWARTZ.