author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harlan DeSavieu, Defendant-Appellant.
    (No. 54494;
    First District (3rd Division)
    April 5, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Ira Silbar, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

Following a jury trial the defendant, Harlan DeSavieu, was convicted of aggravated battery and attempt murder. He was sentenced to serve from 19 to 20 years in the penitentiary consecutively to prior sentences imposed for other crimes.

Late on the afternoon of May 1, 1968, the complainant, WiHiam Hart-field, age 15 was playing basketball with some friends in the gymnasium of the Englewood Methodist Church located at 64th Street and Stewart Avenue, Chicago. While the game was in progress boys, whom Hartfield and his friends knew to be members of the Disciples street gang, entered the gymnasium and had a conversation with them. Shortly after these youths departed, Hartfield and four of his companions left the gymnasium to return to their homes. They proceeded south on Stewart to the corner of 65th Street, where they were stopped and frisked by two Chicago pofice officers, who found that they had no weapons. They then walked one-half block west on 65th Street and turned south down an alley to take a short cut. They had gone a short distance when a car drove up and three older youths, recognized by them as members of the Disciples, got out and attacked Gregory Thurmond, one of Hartfield’s friends who had fallen behind. Among the three assafiants was the defendant, Harlan DeSavieu.

The assailants twisted Thurmond’s arm behind his back and punched him in the body. Hartfield and his companions asked them to leave Thurmond alone and went to the aid of their friend. As they approached, the assailants turned on them. DeSavieu and one of his associates drew guns; DeSavieu pointed his at the face of Otis Harris, another of Hart-field’s friends, and ordered him to back up. Harris pulled away and eluded another youth who swung at him. Other boys, including the ones who had spoken to Hartfield and his friends in the gymnasium, came into the alley to aid the assailants. Thurmond and Harris managed to break away and escape.

DeSavieu grabbed Hartfield and tried to shoot him, but his gun did not fire. Hartfield broke away and DeSavieu shot at him again; this time his gun fired and the bullet struck Hartfield in the back. Hartfield heard four more shots as he ran down the aUey. He turned his head and saw DeSavieu still pointing the gun; the buUets struck garbage cans around him. He ran approximately one block before he fell to the ground. Boys who were playing baseball nearby assisted him into a taxicab which brought him to his home.

Prior to the arrival of the ambulance which took him to a hospital, Hartfield was questioned by police. He had difficulty talking due to the seriousness of his injury but he was able to describe what happened. He was hospitalized for three months and operated upon three times.

After the shooting Ernest Boyd, who was with Hartfield in the gymnasium and at the affray, spoke to the police. The mother of Otis Harris also spoke to them and a bulletin was issued for DeSavieu’s arrest. When he was seen by the police he ran and they chased him. He fled into a building which was surrounded by the police before he surrendered.

DeSavieu’s defense was an alibi. He did not testify himself but two girls stated that they spent the late afternoon and evening of May 1, 1968, with him while he supervised them and ten others in cleaning a recreational center. They testified that he and they engaged in this activity on the first day of each month.

The defendant first contends that the State’s evidence failed to establish beyond a reasonable doubt that he was the one who committed the offense. He argues that the poor visibility in the alley, the confusion there during the encounter, the fright of Hartfield and his friends, the conflict in their testimony, the lack of a complete physical description of the perpetrator of the offense, the failure to conduct a line-up and a tainted photographic identification, contributed to his mistaken identification.

The shooting took place shortly after 7:00 P.M. on the first day of May. Hartfield and Boyd testified that it was light outside. No contrary evidence was produced by the defense. There undoubtedly was confusion in the alley and Hartfield, Boyd and Harris were admittedly scared. They had every reason to be. Their assailants belonged to a feared gang; they had been approached by other gang members in the gymnasium a short time before and at least two of then attackers were openly armed. But the confusion and their fright did not prevent them from recognizing DeSavieu. Boyd and Harris were acquainted with him and Hartfield stared at him face to face. The rapidity of the events in the alley explains the minor discrepancies in their testimony and their fear explains their hesitancy in describing him to the police. Their accounts of the occurrence were in substantial agreement, their credibility was not shaken and their identifications were positive.

The failure to place the defendant in a line-up was not prejudicial to him. At the time he was captured, one month after the crime, Hart-field was in the hospital. He could not have attended a line-up, and since Boyd and Harris were acquainted with DeSavieu it was needless for them to point him out. Moreover, it is not necessary that a suspect be placed in a line-up. (People v. Mason (1967), 86 Ill.App.2d 28, 229 N.E.2d 392.) The photographic identification to which the defendant objects had no effect upon his conviction and, since he was responsible for the testimony, he has no right to complain about it. The day after Hartfield was shot and soon after he regained consciousness, following a four-hour operation, police showed him two pictures and asked him if either was his assailant. One of the pictures had a facial resemblance which he recognized but he could not say whether it was a photograph of the man who shot him. The pictures were not produced at the hearing on the motion to suppress nor introduced into evidence at the trial. Indeed, the jury was informed of the dubious pre-trial identification only because of questions asked Hartfield by the defense. A defendant who procures or invites the admission of evidence cannot complain about it on appeal. People v. Burage (1961), 23 Ill.2d 280, 178 N.E.2d 389.

The defendant next contends that the State’s failure to either call as witnesses or satisfactorily explain the absence of persons who saw the crime or police officers who were in the area when it was committed, raises a negative inference that these witnesses would testify favorably for the defense. This contention is without merit. Although other individuals were at or near the scene of the crime, the State was not bound to call them to testify. The State is not obligated to produce every witness to a crime, and the failure to do so does not raise the presumption that the testimony would be unfavorable to the prosecution. People v. Jones (1964), 30 Ill2d 186, 195 N.E.2d 698; People v. Gilyard (1970), 124 Ill.App.2d 95, 260 N.E.2d 364.

Certain actions of the trial court such as allowing testimony of Hartfield’s physical condition, operations and treatment, permitting references to the Disciples gang, and restricting cross-examination are asserted to have been so prejudicial as to require reversal. First, the medical testimony: On direct examination the physician who attended Hartfield in the hospital after the shooting told of his great blood loss and the nature of his operation. However, the defendant’s attorney questioned the physician at length on cross-examination about the operation and Hartfield’s condition immediately thereafter. Those aspects of the doctor’s testimony to which the defendant now objects were the very ones his counsel expatiated. Therefore, he has no standing to complain that the jury was informed of the details of Hartfield’s condition and treatment.

Second, the gang membership testimony: The prosecution’s theory was that the assault in the alley and the shooting of Hartfield were acts of gang warfare. It was established that members of the Disciples gang had a conversation with Hartfield and his companions in the gymnasium. Because the defendant was not present, the trial court excluded the contents of the conversation from evidence. When the defendant and two other members of the same gang attacked Thurmond without apparent provocation soon thereafter, the youths who had been in the gymnasium rushed into the alley and participated in the attack. The prosecution may prove the motive of the defendant where it can be done. (People v. Novotny (1939), 371 Ill. 58, 20 N.E.2d 34.) The evidence that the defendant was associated with the Disciples and that he was acting with other gang members in the assault upon Hartfield and his friends provided a motive and an explanation for the seemingly inexplicable attack.

Third, the alleged restriction of cross-examination: The latitude to be allowed in the cross-examination of witnesses rests in the discretion of the trial court, and it is only in a case of clear abuse of such discretion resulting in manifest prejudice to the defendant that a court of review will interfere. (People v. George (1971), 49 Ill.2d 372, 274 N.E.2d 26; People v. Halteman (1956), 10 Ill.2d 74, 139 N.E.2d 286.) We have carefully reviewed the record to discern whether the defendant was prejudiced by the trial court’s sustaining objections to questions asked by the defendant’s counsel. We find that no prejudice occurred.

It is claimed that in his closing argument the prosecutor made comments to the jury concerning facts not in evidence and that he appealed to the sympathy of the jury in an attempt to divert its attention from the true course of deliberation. Improper remarks by a prosecutor do not constitute reversible error unless they result in substantial prejudice to the defendant. (People v. Nilsson (1970), 44 Ill.2d 244, 255 N.E.2d 432; People v. Jackson (1969), 116 Ill.App.2d 304, 253 N.E.2d 527.) We have studied the argument in its entirety and find that reversal is not warranted. The prosecutor’s comments were uniformly based upon the evidence or legitimate inferences drawn from the evidence. (People v. Hairston (1970), 46 Ill.2d 348, 263 N.E.2d 840.) We note that most of the remarks now aUeged to be prejudicial were not objected to when they were made. The supposed errors not complained about are deemed to have been waived. People v. Donald (1963), 29 Ill.2d 283, 194 N.E.2d 227.

The purpose of review in a criminal case is not to determine whether the record is perfect, but whether the defendant has had a fair trial under the law, and if the evidence established his guilt beyond a reasonable doubt. (People v. Haygood (1965), 60 Ill.App.2d 70, 208 N.E.2d 373.) DeSavieu suffered no substantial prejudice at his trial, and his conviction will be affirmed.

The punishment fixed by the legislature for attempt murder is an indeterminate term of one to twenty years. (Ill. Rev. Stat. 1969, ch. 38, par. 1—7(e).) The defendant’s sentence (19 to 20 years) is the maximum possible under the statute. The sentence is to run consecutively to a 15-to-20-year sentence previously imposed upon him. The one year difference between the minimum and maximum sentence unduly limits the discretion of those who must determine whether, or when, the defendant should be paroled. We wifi, therefore, reduce the minimum sentence to 15 years. People v. Monroe (1972), 6 Ill.App.3d 1051, 286 N.E. 2d 824.

Affirmed as modified.

McNAMARA and McGLOON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE McNAMARA.

license: Public Domain

text:
    Christine E. Hartman, Plaintiff-Appellee, v. Arlie A. Hartman et al., Defendants—(James E. Hartman et al., Defendants-Appellants.)
    (No. 55910;
    First District (3rd Division)
    April 5, 1973.

      Rehearing denied May 3, 1973.

    J. Edward Jones, of Blue Island, for appellants.
    Korean Movsisian, of Chicago, for appellee.
   Opinion by

Mr. JUSTICE McNAMARA.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Louis T. Simental (Impleaded), Defendant-Appellant.
    (No. 56067;
    First District (3rd Division)
    April 5, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Justine Knipper and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Frederic I. Chaimson, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Defendant, Louis T. Simental, was charged by indictment with the offense of rape. (Ill. Rev. Stat. 1967, ch. 38, par. 11—1.) After a bench trial in the circuit court of Cook County, the court found defendant guilty as charged and sentenced him to the penitentiary for a term of not less than four nor more than eight years. Defendant, appeals.

Defendant contends that the prosecution failed to prove him guilty beyond a reasonable doubt. He also contends that there was a fatal variance between the proof adduced at trial and the bill of particulars as to the time of the commission of the offense.

We affirm.

The complainant, who was the victim of the rape, testified that on the evening of June 20, 1969, she was in a tavern at 43rd Street and Western Avenue in Chicago with her husband. At about 10:30 P.M. that evening after a quarrel had occurred between the complainant and her husband, he left his wife in the tavern and drove off because he was angry. The complainant did not have a car and she waited for a bus at a bus stop outside the tavern. The neighborhood was unfamiliar to her. While she was waiting for the bus it started to get cold, so she went to another tavern at 42nd Street and Western Avenue where she made a telephone call to her mother and another to her sister-in-law. Neither of them had a car available to pick her up. After she drank one-half of a beer at this tavern, she went outside and again waited for a bus. When none came she went to another tavern two blocks from where she had just been.

At this tavern a man, James Eiwin, came over to her and introduced himself to her. She told him her name and that was the extent of their conversation. She saw the defendant in the tavern playing pool but said nothing to him. While in the tavern, the complainant had two mixed drinks which contained gin. She also made a telephone call. She left the tavern and waited outside at the comer for a bus. At this point an automobile pulled up to where she was standing. The defendant was driving, and James Erwin was in the front seat on the passenger side. They offered her a ride to her home, and she accepted. She got into the car and sat between the two men.

The defendant turned the car around in a direction which was not consistent with the way to her home which was at 2050 West 23rd Street in Chicago. James Erwin told the complainant that he was not going to take her home and that he was going to rape her. She testified that she started fighting and yelling, and then Erwin hit her in the head and she became unconscious. When she regained consciousness, the car had stopped in the vicinity of Monroe Street and Lake Michigan where she saw sailboats. Both men were out of the car at the time. She locked the passenger door of the car and was attempting to lock the driver’s door when the defendant grabbed her by the hair and told her that he was going to kill her if she did not stop screaming. She started screaming again, and the defendant put his hand over her mouth and told her to shut up or he would smother her. Also he again told her that he was going to kill her.

Erwin entered the car, pulled the pants she was wearing, and ripped the zipper. He threatened her that she had better take off her pants. She took off her slacks and her other under garments. Erwin then forced her to have sexual intercourse with him against her will in the front seat. After Erwin was finished, the defendant forced her to have sexual intercourse with him against her will. After the defendant was finished, the complainant got out of the car and ran, picking up her clothes as she went. At the time of the offense the complainant was 4T1" tall and weighed 95 pounds. The defendant and Erwin were both about 5T1" tall and weighed 180 pounds.

Kenneth Kuczen, who was called as a prosecution witness, testified that on June 21, 1969, between 1:00 A.M. and 3:00 A.M. he was aboard his sailboat when he heard a faint cry for help. After hearing a cry repeated two more times, he got into his car and drove along the breakwater until he saw file complainant lying in a path. He testified that her hair was messed up and that her clothes were disarranged. At this time she told him that two men had raped her and threw her out of the car. Mr. Kuczen called the police. The complainant was taken to the hospital where tests for spermatozoa in her vagina were positive. She also testified that she had a black eye and bruises on her arm as a result of the episode, but there was no medical testimony to that effect at trial.

On July 7, 1969, Officer William Jannotta of the Chicago Police Department arrested the defendant. Officer Jannotta testified that the defendant told him that he was at the scene of the rape and that Erwin had raped the complainant but that he did not have intercourse with her.

In his defense, defendant testified that he and James Erwin picked up the complainant in his car at the comer outside the tavern and drove to the breakwater near Monroe Street and the lake. He further testified that he and Erwin had sexual intercourse with her. He stated that she consented to having sexual intercourse, that he never saw Erwin hit her or threaten her nor did he hit her or threaten her. The defendant maintained that after he had sexual intercourse with her, they were driving her home but after they had gone a few blocks she voluntarily got out of the car. He further testified that before she got out of the car she gave him her address. The defendant denied that he told the police that Erwin had raped her.

Defendant’s first contention is that the prosecution failed to prove him guilty beyond a reasonable doubt. Where a conviction for rape depends upon the testimony of the complainant, her testimony must be clear and convincing or corroborated by other evidence. (People v. Griggs (1970), 131 Ill.App.2d 257, 266 N.E.2d 398.) Defendant argues that the testimony of the complainant was inherently unbelievable. He points out that although the complainant testified that she had a black eye and bruises on her arm, there was no corroboration of this by way of medical testimony or the testimony of Mr. Kuczen as to what he observed when he saw her on the path. Although we note that such corroboration is, in fact, absent from the record, there was other evidence relating to the element of force included in the offense of rape which corroborated the clear and convincing testimony of the complainant.

The testimony of Mr. Kuczen that he heard three faint cries for help which prompted him to investigate corroborates the complainant’s testimony that she was screaming while the two men were physically abusing her in the car. Other types of corroborative evidence which are present in the instant case are the testimony of Mr. Kuczen as to the disheveled physical appearance of the complainant after she had been raped (People v. Washington (1966), 70 Ill.App.2d 452, 217 N.E.2d 356), and his testimony that just after the occurrence she complained to him that two men had raped her. People v. Vail (1966), 74 Ill.App.2d 308, 221 N.E.2d 165.

In a bench trial, the sufficiency and weight of the evidence and the question of the credibility of witnesses are matters for the trial court. We will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt as to defendant’s guilt. (People v. Strong (1970), 120 Ill.App.2d 52, 256 N.E.2d 76.) We agree with the trial court’s appraisal of the credibility of the witnesses, which the court stated before finding the defendant guilty as charged.

In attempting to find a flaw in the complainant’s testimony, defendant points out that she testified that she got out of the car after she was raped, and Mr. Kuczen testified that she told him that the two men threw her out of the car. Minor inconsistencies in the evidence do not justify reversal. People v. Smith (1965), 58 Ill.App.2d 123, 206 N.E.2d 714.

Defendant contends that the prosecution failed to prove an element of the offense of rape, namely, that defendant performed an act of intercourse without the consent of the complainant. In support of this contention defendant points to the complainant’s testimony that she took off some of her own clothing and put her slacks back on after the occurrence. Defendant also points to his own testimony that before the complainant got out of the car, she gave him her address. As we have pointed out earlier, the trial court did not have to believe defendant’s testimony; and, in fact, did not.

There is no definite standard as to the amount of resistance required by the complainant. (People v. Jackson (1968), 103 Ill.App.2d 209, 243 N.E.2d 551.) That the complainant took off some of her clothes and later put her slacks back on are isolated facts which do not show consent. The two men repeatedly threatened and abused her. Erwin, who had previously knocked her unconscious, ripped the zipper of her pants while he was trying to forcibly remove them. He then threatened her and she removed some of her clothes. The defendant had grabbed her by the hair and had told her that he was going to kill her. There was a great disparity in size and strength between the complainant and her assailants. Before the rape occurred, the two men had inflicted physical harm on her and there was no requirement that she risk the possibility of further serious harm which seemed imminent at the time because of the two men’s continued threats. People v. Sims (1972), 5 Ill.App.3d 727, 283 N.E.2d 906.

Defendant's second contention is that there is a fatal variance between the bill of particulars and the proof elicited at trial as to the time at which defendant committed the offense. The prosecution filed a bill of particulars which stated that the rape took place on June 21, 1969, between 12:15 A.M. and 2:45 A.M. Defendant objects to the complainant’s testimony relating the events of the night of June 20, 1969, leading up to the rape and her testimony on cross-examination that a statement was correct which she made to the grand jury which implied that the occurrence took place around 12:15 A.M. on June 20, 1969. As to the first objection, the fact that the bill of particulars specifies that the act of rape took place on June 21, 1969, does not preclude the prosecution from introducing evidence of events of June 20, 1969, which led up to the rape.

As to the second objection, it appears that either the complainant was misled by defense attorney’s question or the inconsistency in her testimony was inadvertent. Our review of the record discloses that the time of the commission of the offense in the proof at trial conforms to the time period delineated in the bill of particulars. The complainant’s testimony and Mr. Kuczen’s testimony show the offense occurred at the time charged in the indictment and the bill of particulars.

The purpose of a bill of particulars is to supplement a sufficient indictment so as to better inform the accused of the nature of the charge against him or to better enable him to present his defense. (People v. Patrick (1967), 38 Ill.2d 255, 230 N.E.2d 843.) Defendant does not contend that he was surprised at trial nor do we find that he suffered any prejudice.

For the above reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

DEMPSEY, P. J., and McNAMARA, J., concur.


author: Mr. JUSTICE ENGLISH

text:
    Grace Banks, Admrx. of the Estate of Otis Banks, Deceased, Plaintiff-Appellee, v. The City of Chicago, Defendant-Appellant.
    (No. 55258;
    First District (5th Division)
    April 6, 1973.

      Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Harvey N. Levin, Assistant Corporation Counsel, of counsel,) for appellant.
    Philip E. Howard, Arthur S. Gomberg, and Sidney Z. Karasik, all of Chicago, for appellee.
   Mr. JUSTICE ENGLISH

dehvered the opinion of the court:

This cause of action had its origin in a prior suit filed in 1960 for the wrongful death of her husband filed by plaintiff against Floyd Pace, a Chicago police officer. On September 29, 1966, when that case appeared above the black line on the trial call (indicating that it was subject to immediate trial), the city was given written notice of the suit, together with a copy of the complaint which aUeged wilful misconduct on the part of the police officer. The covering letter advised the city that it might be called on to indemnify the defendant, and it was therefore being given an opportunity to furnish him with counsel and a defense to the suit. For that purpose, die case was continued about 10 weeks on the trial call. The city did not file an appearance on behalf of the officer, nor did it furnish him with counsel. In the course of the trial (which was concluded the next day), plaintiff’s complaint was amended, by leave of court, to conform to the proof, by alleging acts of negligence on the part of the officer, and the case went to the jury on the negligence charge. The city did not receive notice of the amended pleading. On December 16, 1966, a judgment based on negligence was entered for plaintiff against Pace in the amount of $30,000. Thereafter, the instant suit was filed against the city, seeking indemnification under the Illinois Municipal Code. (Ill. Rev. Stat. 1967, ch. 24, par. 1—4—5.) After a bench trial, judgment was entered for plaintiff in the amount of $34,803.43 (prior judgment plus interest), and the city now appeals, raising a number of issues which we shall refer to below.

The facts as established by the evidence in the instant case are essentially undisputed. On November 24, 1960, at about 2:00 or 2:30 A.M., an off-duty Chicago police officer, Floyd Pace, was in Sam’s Chicken Shack. This establishment housed both a restaurant and a tavern, the two being connected by a corridor about three feet wide and eight to ten feet long. Pace had been drinking a beer in the tavern for about 15 minutes when he got up from the bar and walked to the connecting corridor. He was midway through the corridor when he saw plaintiff’s decedent, Otis Banks, approaching him from the opposite direction. He observed that Banks could not support himself, so he backed up against the wall to let him by. As Banks passed Pace in the hallway, he bumped into the officer and said, “Get the fuck out of my way.” The officer took out his star and identified himself as a policeman in order to calm down Banks. Then Pace continued walking toward the restaurant while Banks walked in the opposite direction.

Pace was walking past the first booth off the corridor in the restaurant when Banks ran around in front of him and pushed the barrel of a .25-caliber automatic revolver into his lower lip. Pace’s mouth began to bleed, he saw a flash, and he thought that Banks had pulled the trigger. Banks ran toward the south wall of the restaurant, and Pace called out, “Halt, Police.” When Banks reached the wall, he turned around, put both hands on the gun, and pointed it toward the officer. Pace pulled out his own gun and fired it once at Banks. Pace had been carrying his service revolver on his person, but had not exhibited it in the establishment prior to this time. Banks slumped to the floor in a sitting position with his gun in his lap. He raised the gun a second time and aimed directly at Pace. By the motion of Banks’ hand, it appeared to Pace that Banks was attempting to pull the trigger. Pace fired a second time, and Banks collapsed on the floor.

The restaurant was filled almost to capacity, and at the time Banks aimed the gun at Pace, the counter, about six feet on Pace’s left, was crowded, although there were no tables nearby.

Pace was aware of Police Rule 298 which provided that a police officer is considered to be on duty at all times, although certain hours are allocated to the performance of particular duties, and that he is required to respond immediately to any emergency regardless of when and where it may occur within the corporate boundaries of the City of Chicago. Pace stated that he did not “know truthfully” whether the situation in the restaurant could be categorized as an emergency, but that he had fired in self-defense, and he would say that that was an emergency. In addition, he stated that his obligation as a police officer was to attempt to prevent the commission of crime in his presence, and that the actions of Banks constituted a crime. He carried his gun and his star with him when he was officially off duty, not only for his own protection against people who have animosity against the police, and from people he had arrested and who had subsequently been jailed and released, but also to assist him in making arrests when necessary.

Officer McCann, Director of the Police Academy, testified that a City of Chicago police officer is charged with the enforcement of all state laws and city ordinances. It is his duty to preserve the public peace, protect life and property, and prevent crime. For those times other than tire eight-hour shift to which an officer is officially assigned, he is subject to call and still on duty for the purpose of preventing a crime from being committed in his presence. To this end, an officer is required to carry his star and his revolver at all times when he is out in public.

In entering judgment for plaintiff, the trial judge stated that he believed Officer Pace to have been a policeman at the time he encountered Banks, and that whether he fired his gun as a police officer or in his own defense made no difference since he could have been acting in both capacities at the same time.

The four elements essential for recovery of indemnification pursuant to Ill. Rev. Stat. 1967, ch. 24, par. 1— 4—5 are: (1) an injury to a person caused by a member of the police department; (2) while the member is engaged in the performance of his duties as a policeman; (3) without contributory negligence on the part of the injured person; and (4) without wilful misconduct on the part of the policeman. The city contends that the judgment against it on behalf of plaintiff cannot stand because of failure to prove any of the necessary elements of plaintiff’s case.

The city concedes in its brief that evidence of a prior judgment against a policeman is ordinarily sufficient to prove elements (1) and (3) above, of the statutory cause of action. The city argues, however, that the only evidence of these elements in this case is to be found in the prior judgment against Pace which is not binding upon the city. And this, because the city did not receive notice of the amended negligence complaint when filed by plaintiff in the course of trial, and it was therefore denied an opportunity to defend the original action on behalf of its policeman.

Before proceeding further with this point, we note that the city stipulated at the trial that a judgment for $30,000 had been entered in favor of plaintiff against Pace on the ground of the latter’s negligence, thus having agreed of record that elements (1) and (3) have been established for purposes of this case if that judgment is to he considered conclusive against the city as indemnitor.

This point and its theory are raised for the first time on appeal and come too late. (Flatow v. Amalgamated Trust & Savings Bank, 97 Ill.App.2d 357, 361, 240 N.E.2d 161; Blanchard v. Lewis, 414 Ill. 515, 521, 112 N.E.2d 167.) During the entire course of the trial, the city did not raise the issue of its not having received notice of the amended complaint. The city did raise a notice issue in its post-trial motion, but there made the point that since it did not receive notice of the filing of the amended complaint, the judgment was void as to Pace and should be vacated, and, in consequence, the judgment in the instant case should be vacated as to the city. The judgment against Pace being valid in any event, the mere stating of this point shows its lack of merit, and the point has been abandoned by the city through its absence from the city’s brief in this court.

Furthermore, the city’s argument that lack of notice of the filing of the amended complaint in the prior suit excused it from indemnification, was waived in a pre-trial colloquy between the Assistant Corporation Counsel and the court. At that time, the city’s attorney specifically stated, “My defense as of right now is only that the defendant [Floyd Pace] was not acting in the line of duty at the time of the shooting 000 That will be our only defense.”

Even if the city were considered not to have waived this defense, we would conclude that the prior judgment was, nevertheless, binding upon the city. This is not a common-law action for indemnification, the rules concerning which ordinarily relate to an action by the indemnitee against the indemnitor (not the situation here) and which might be said to require notice to the indemnitor. (See 42 C.J.S. Indemnity § 32a (2) and cases referred to therein which are relied upon by the city in its brief.) Here, the indemnification of a police officer by the city is made available to the injured person through a special liability over, created by the statute, and the only conditions of such liability are clearly and specifically set forth therein. As we have mentioned above, the controlling statute (Ill. Rev. Stat. 1967, ch. 24, par. 1—4—5) sets forth only four necessary elements of the action and does not require that notice be given to the city. This section of the statute is the one which covers the instant case, as it expressly applies to policemen employed by a municipality having a population of 500,000 or over. The veiy next section of the statute, however, furnishes a stark contrast inasmuch as it sets out the identical four elements for an indemnification action applicable to policemen in municipalities having a population of less than 500,000, but then continues on to provide:

“Any policeman, or any person who, at the time of performing such an act complained of, was a policeman, who is made a party defendant to any such action shall, within 10 days of service of process upon him, notify the municipality by whom he is or was employed, of the fact that the action has been instituted, and that he has been made a paity defendant to the same. Such notice shall be in writing, and shall be filed in the office of the city attorney or corporation counsel, if there is a city attorney or corporation counsel, and also in the office of the municipal clerk, either by himself, his agent, or attorney. The notice shall state in substance, that such policeman, [naming him], has been served with process and made a party defendant to an action wherein it is claimed that a person has suffered injury to his person or property caused by such policeman; stating the title and number of the case; the court wherein the same is pending; and the date such policeman was served with process in such action, and made a party defendant thereto. The municipality which is or may be liable to indemnify the policeman shall have the right to intervene in the suit against the policeman, and shall be permitted to appear and defend. The duty of the city to indemnify any such policeman for any judgment recovered against him shall be conditioned upon receiving notice of the filing of any such action in the manner and form hereinabove described.” Ill. Rev. Stat. 1967, ch. 24, par. 1—4—6. (Emphasis added.)

None of the language just quoted appears in the section of the statute applicable to the instant case. Its absence from that section, compared to its inclusion in the next following section, cannot be ignored, especially since both became parts of the Illinois Municipal Code enacted in 1961.

For whatever the reason, it was a matter of clear legislative intent to require that notice be given to a municipality of less than 500,000, but not to the City of Chicago.

The prior judgment being conclusive upon the city, however, does not automatically impose liability to indemnify, but binds the city only as to those issues necessarily determined thereby. In the instant case, the first judgment, as stipulated by the city, determined that plaintiff had a cause of action for the killing of Banks by Officer Pace, that Banks was not guilty of contributory negligence, that there were no other defenses to the action, and that damages were sustained in the amount of the judgment for which the defendant Pace is hable to plaintiff. The judgment is not determinative, though, as to two remaining elements of the instant action: whether Pace was acting in the performance of his duties as a policeman at the time, and whether he was guilty of wilful misconduct. See Karas v. Snell, 11 Ill.2d 233, 142 N.E.2d 46.

The issue of wilful misconduct, however, was waived by the city’s attorney, when, in a discussion before trial seeking to outline and limit the issues, he informed the court that the city’s only defense would be that Officer Pace had not been in the performance of his duties at the time in question. The trial judge clarified the city’s position by asking, “No issue here as to whether or not the act of the Policeman, Pace, was wilful misconduct * * * right?” and counsel replied, “That’s correct, Your Honor.” Although the city thus waived the necessity for plaintiff to prove this element of the indemnification action, there was a clear preponderance of proof in the instant case that Officer Pace was, in fact, not guilty of wilful misconduct. Consequently, the only element remaining to be proved by plaintiff was that Officer Pace was in the performance of his duties at the time. This was the only issue presented at trial, and the only issue remaining for us to consider now. The city contends that Police Rule 298, which provides that a police officer in the City of Chicago is always on duty, cannot be conclusive evidence that all acts of policemen are in the performance of their duties. It argues from this that in this case Pace’s off-duty shooting of Banks was an action motivated solely by a desire to save his own life, and was not within the performance of his duties as a police officer.

We find this position untenable. The nature of a policeman’s job is that he be fit and armed at all times, whether on or off duty, and subject to respond to any call to enforce the laws and preserve the peace. It is true that his being considered “on duty” at all hours of the day or night does not result in all of his acts being deemed to have been taken in the performance of his duties as a police officer. (Karas v. Snell, 11 Ill.2d 233, 142 N.E.2d 46.) However, since he is always obligated to attempt to prevent the commission of crime in his presence, any action taken by him toward that end, even in his official off-duty hours, falls within the performance of his duties as a police officer.

In the instant case, Banks, by assaulting Pace with the barrel of his gun and then by aiming it at Pace within the confines of a crowded restaurant, committed one crime and appeared intent upon committing another more serious one, thereby creating an emergency situation. Officer Pace reacted by first calling out the warning, “Halt, Police,” and by then firing his own service revolver when Banks appeared about to fire at the officer. In our opinion, these acts of Pace were performed in fulfillment of his obligations as a policeman. The fact that Pace happened also to have shot in self-defense was purely coincidental to his attempt to prevent a crime in the performance of his duties as a police officer. To hold otherwise would require the incongruous finding that a police officer is invested with the authority and duty to defend all lives but his own. We cannot so find.

The judgment of the circuit court is affirmed.

Affirmed.

DRUCKER, P. J., and LORENZ, J., concur.

       On February 26, 1970, a verified petition of Officer Pace (apparently prepared by an Assistant Corporation Counsel) stated that he was under the impression he would be defended at trial by the Corporation Counsel’s Office, and did not learn to the contrary until the day of trial (when an Assistant Corporation Counsel so advised the court).


author: Mr. PRESIDING JUSTICE DRUCKER

text:
    Luther Estep, a Minor, by James Stanley, His Legally Appointed Guardian, Plaintiff-Appellant, v. Janler Plastic Mold Corporation, Defendant-Appellee.
    (No. 56357;
    First District (5th Division)
    April 6, 1973.

      Rehearing denied May 8, 1973,

    Asher, Greenfield, Gubbins and Segall, of Chicago, (Eugene I. Pavalon and Sidney Robin, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago, (C. Roy Peterson, George L. Burgett, and Richard E. Mueller, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff appeals from an order dismissing his amended complaint. Plaintiff was injured on September 26, 1968, while employed by defendant to maintain an electrically powered band saw. At the time of the injury plaintiff was 17 years of age. Contending that he was an “illegally employed minor,” plaintiff rejected his rights to benefits under the Workmens Compensation Act and proceeded against defendant in an action for damages as permitted by Section 5(a) of the Act. Defendant moved to dismiss plaintiff’s amended complaint, arguing that he was not an “illegally employed minor” and hence not eligible to reject his Workmen’s Compensation benefits and that plaintiff had failed to file his rejection of the benefits within the six month period prescribed by Section 5(a) of the Act.

The complaint was dismissed and plaintiff urges on appeal that his rejection of benefits as an illegally employed minor was timely filed.

Section 5(a) of the Illinois Workmen’s Compensation Act (Ill. Rev. Stat. 1967, ch. 48, par. 138.5) permits an “illegally employed minor or his legal representatives,” within six months from the date of injury, to reject his right to benefits under the Act and to pursue a common law or statutory remedy to recover damages for such injury. Plaintiff maintains that he was an “illegally employed minor” because his employment constituted “oppressive child labor” which as defined by the federal Fair Labor Standards Act of 1938 can, under certain circumstances, cover employees between the ages of 16 and 18 years. 29 U.S.C. secs. 203(1), 212(c) and Order 14 of the Secretary of Labor, 29 CFR, ch. V, Part 570, sec. 570.65; CCH Labor Law Reporter, Vol. 1, 23,720.51.

James Stanley was appointed plaintiff’s guardian on September 23, 1969. The rejection of the workmen’s compensation benefits was filed with the Illinois Industrial Commission on November 17, 1969. This common law cause of action was commenced on March 10, 1970.

We cannot accept plaintiff’s contention that the federal Fair Labor Standards Act definition of the term “oppressive child labor” is controlling in our interpretation of the Illinois Workmen’s Compensation Act’s use of the term “illegally employed minor.” Rather do we look for such assistance to the Illinois Child Labor Law (Ill. Rev. Stat. 1967, ch. 48, par. 31.1) which provides that a minor under 16 years of age cannot be lawfully employed to do the kind of work engaged in by plaintiff. Since plaintiff was 17 at the time of the injury, he was not an “illegally employed minor.”

But even if we were to accept plaintiff’s contention (which is denied by defendant) that plaintiff was an illegally employed minor for purposes of Section 5(a), we would still be compelled to affirm the dismissal of the complaint. Section 5(a) of the Workmen’s Compensation Act specifically states that the rejection of benefits under the Act must be filed by the minor or his legal representatives “within 6 months of the time of injury or death.” In the case at bar plaintiff was injured on September 26, 1968. His guardian who was appointed on September 23, 1969, did not file a rejection of the Workmen’s Compensation benefits with the Industrial Commission until November 17, 1969. We disagree with plaintiff’s argument that the six month period begins to run from the date on which a guardian is appointed. The six month period begins to run from the date on which the employee is injured, not the date on which a guardian is appointed. (Cadwell v. National Tea Co., 343 Ill. App. 206, 98 N.E.2d 516.) Therefore, even if plaintiff was an illegally employed minor, his rejection of the right to benefits under the Workmens Compensation Act was not filed within the prescribed period. Thus on this ground also plaintiff’s complaint must fail.

The judgment is affirmed.

Affirmed.

ENGLISH and LORENZ, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Smith, a/k/a James Redmond, Defendant-Appellant.
    (No. 56962;
    First District (5th Division)
    April 6, 1973.
    James J. Doherty, Public Defender, of Chicago, (Suzanne M. Kohut, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Roberta C. Cole, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Dopak, Defendant-Appellant.
    (No. 57814;
    First District (5th Division)
    April 6, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE BURKE

text:
    David J. Hill, Plaintiff-Appellant, v. Natural Gas Pipeline Company of America, Defendant-Appellee.
    (No. 55619;
    First District (1st Division)
    April 9, 1973.

      Edward J. Bradley, of Bradley and Bradley, of Chicago, for appellant.
    Leo M. Tarpey, Jr., of Doyle & Tarpey, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

This appeal arises from a personal injury action for damages suffered by the plaintiff when the walls of a trench in which he was working collapsed on him. The case was tried before a jury. At the close of all the evidence, the court granted defendant’s motion for a directed verdict and judgment was entered thereon.

The defendant entered into a written agreement with Contracting and Material Company (hereinafter Contracting) to install a gas pipe line through the defendant’s land. No other contractors were involved in the operations. Under the terms of the agreement, Contracting was designated an independent contractor. The defendant retained the right to inspect the work done by Contracting, and the contract provided for the designation of certain of the defendant’s employees as inspectors of Contracting’s work.

On September 19, 1963, the plaintiff, who was employed as a welder’s helper by Contracting, was part of a tie-in crew, engaged in welding together forty-foot lengths of pipe after the pipe was laid in a trench. When the plaintiff arrived at the trench in which he was later injured, he found that the sides had caved in. He waited while a clam operator used his machine to remove the debris, after which the plaintiff went into the trench to work. The bottom of the trench contained water, which eroded the sides at that level, giving the trench an upside-down mushroom appearance. The plaintiff had worked with a welder for about forty-five minutes, when he became aware that the clam was again coming toward the trench. The clam operator veered left after being waved away some distance from the edge of the trench. At that point, however, the sides of the trench collapsed, crushing the plaintiff against the pipe. Testimony was introduced as to his injuries.

The Chief Inspector of the defendant testified that he and the other inspectors were at the job site to see that the pipeline was laid in the manner prescribed. The plaintiff testified that an inspector of the defendant had told him how to do his work before the date of the accident. The plaintiff also testified that on the day of the accident an inspector of the defendant had been in the trench after it was cleared by the clam operator and that the inspector had left the trench when the plaintiff began working. He added that the inspector had remained at the rim of the trench, looking down on the defendant working.

A directed verdict is not permissible unless all of the evidence, viewed in its aspects most favorable to the plaintiff, so overwhelmingly favors the defendant, that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) Keeping this standard in mind, we turn to an examination of the evidence in this case.

The plaintiff initially seeks recovery on the theory that the relationship of defendant and Contracting was that of master and servant, rather than owner and independent contractor, thus imposing liability on the defendant as the plaintiff’s master for failure to provide a safe place for the plaintiff to work. With this we cannot agree. An examination of the terms of the contract discloses no terms under which the defendant could control the manner of doing the work. The plaintiff’s own cited authority sets out the test:

“In determining whether a workman is an employee or an independent contractor, the principal consideration, under the general rule pertaining to employer and employee, is the right to control the manner of doing the work. Not the actual exercise of the right by interfering with the work, but the right to control, constitutes the test.” Ozark Minerals Co. v. Murphy, 384 Ill. 94 at 99, 51 N.E.2d 197 at 199.

It is clear from our examination of the contract that the defendant retained the right of inspection solely to insure that the work done by Contracting conformed to the specifications of their agreement. Considering that most of Contracting’s work was later covered by back filling of the trenches, inspection rights were simply sound business practice. The defendant was assuring itself that it got what it was paying for. There is no support for the plaintifFs argument that a master-servant relationship existed.

A second theory of recovery is also suggested by the plaintiff. This court has approved the rule that one who engages an independent contractor, but retains control of certain functions under the contract, can be held hable for injuries incurred as a result of the negligent exercise of those retained functions. (Weber v. Northern Illinois Gas Co., 10 Ill.App.3d 625, 295 N.E.2d 41.) In this case, however, the only function retained by the defendant was the inspection of the work to determine whether it conformed to the contract specifications. There was no retained right to control safety precautions or to direct the manner in which the work was to be done. This is further verified by the fact that none of the equipment on the job belonged to the defendant, and the only employees of the defendant at the job site were the inspectors. Consequently, we find that the defendant did not retain control over any function under the contract which could have caused the plaintiff’s injury, had it been negligently performed.

For the reasons above stated, the judgment is affirmed.

Judgment affirmed.

GOLDBERG and EGAN, JJ., concur.


author: Mr. PRESIDING JUSTICE BURKE.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald R. Hill (Donald L. Watson, Impleaded), Defendants-Appellants.
    (Nos. 56031, 56089 cons.;
    First District (1st Division)
    April 9, 1973.
    James J. Doherty, Public Defender, of Chicago, (Judith Smith Leland, Assistant Public Defender, of counsel,) for appellants.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Robert J. Cohen, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE BURKE.


author: Mr. JUSTICE EGAN.

text:
    Stanley Opyd, Plaintiff-Appellee, v. Vets Gold Stripe Memorial Association et al., Defendants-Appellants.
    (No. 56114;
    First District (1st Division)
    April 9, 1973.
    Jones and Huszagh, of Chicago, (Richard W. Huszagh, of counsel,) for appellants.
    McKenna, Storer, Rowe, White & Haskell, of Chicago, (James Kirk Perrin, of counsel,) for appellee.
   Opinion by

Mr. JUSTICE EGAN.


author: Mr. JUSTICE GOLDBERG

text:
    Gale H. Myers, Plaintiff-Appellee, v. Harry F. Spohnholtz et al., Defendants-Appellants.
    (No. 56353;
    First District (1st Division)
    April 9, 1973.

      Richard F. Watt and Russell Woody, both of Chicago, (Cotton, Watt, Jones, King & Bowlus, of counsel,) for appellants.
    Elmer Gertz and Wayne B. Giampietro, both of Chicago, for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Harry F. Spohnholtz and George K. Gundersen (defendants) appeal from a judgment of $25,000 entered against them and in favor of Gale H. Myers (plaintiff) in a libel action tried before a jury. Before stating the respective contentions advanced by the parties, we will clarify one preliminary matter.

Plaintiff’s complaint, as originally filed and as amended, described the defendants individually and as president and vice-president “* * * of and on behalf of all members of Chicago Local No. 4-L Lithographers and Photoengravers International Union, an unincorporated association * # The answer of defendants to the second amended complaint described defendants in the same style. The verdict of the jury found the issues “in favor of the plaintiff and against both of the defendants.” The judgment order referred to the defendants as such without further description. Defendants’ post-trial motion referred to them without further designation. In the interest of propriety, we will consider that the judgment is entered solely against the defendants, as such, without further description or designation. This will be more appropriate and will conform to the law of this jurisdiction that an unincorporated voluntary association may not be sued in its associated name. (Boozer v. U.A.W. of America, 4 Ill.App.3d 611, 615, 279 N.E.2d 428.) The labor union mentioned in the complaint could not be sued in its own name for a money judgment as in the case at bar. (Murley v. Local Union No. 147 of Bro. of Painters, 133 Ill.App.2d 578, 273 N.E.2d 538.) All proceedings herein are, therefore, amended by striking out the name of the labor union, with the cause to proceed against the two defendants individually. Supreme Court Rule 366(a), 50 Ill.2d Rule 366(a).

On January 7, 1965, David Carr, President of Local 78-L in Miami, wrote to defendant Spohnholtz, then President of Local 4-L in Chicago. The letter advised that plaintiff had come into the area, wanted to join Local 78-L and had submitted an application. The application showed that he was expelled from Chicago Local 4-L in 1938. The letter requested any information that could be given concerning plaintiff, especially regarding his eligibility for membership in Local 78-L.

On January 21, 1965, defendant Spohnholtz responded by a letter to David Carr as follows:

“Mr. David Carr President, Local No. 78-L Lithographers & Photoengravers
International Union 700 S. W. Second Avenue Hallandale, Florida
Re: Gale Meyers [sic]
Dear Brother Carr:
We have probably a greater record on Gale Meyers [sic] than appears formally on the records of the Local. To condense it, I am enclosing a copy of a letter sent to Don Biedenbach by George Gundersen of this Local in 1960 which spells out most of the record.
Meyers [sic] has popped up in a number of shops around town here — usually in a capacity where we could easily avoid taking him back into membership in the Union — and we have not taken him back since he was expelled originally in 1939.
I would certainly recommend that, since his ability to stay in one spot for any length of time is questionable, it may be best for your Local not to get involved with membership; however, use your own judgment.
Fraternally,
/s/ Harry F. Spohnholtz,
Harry F. Spohnholtz, President, Chicago Local No. 4-L, L.P.I.U.”

As stated in this letter, there was contained therein a copy of a previous letter dated April 7,1960, written by defendant Gundersen, addressed to the President of Local 11 in Rochester, New York, as follows:

“Mr. Donald Biedenbach, President A. L. of A. Local No. 11 511 N. Goodman St.
Rochester, New York
Dear Sir and Brother:
Gale Meyers [sic] was first initiated on April 7, 1936. He violated Local No. 4 By-Laws on employment by soliciting a job at one of our contract shops. He was requested to appear before our Council Board. His attitude at this Council Board Hearing was most antagonistic. He admitted that he thought himself out of place as a member of Local No. 4 and so much as recommended his own expulsion. As a result, he was expelled on March 10, 1939 for ‘Contempt of Association. His indebtedness at the time of this expulsion amounted to $55.50.
Gale Meyers [sic] then went into business for himself. The Company was known [sic]' as the Offset Fine Arts Company. In December of 1950 the company went bankrupt. Their assets were far less than their liabilities. Therefore, we were unable to collect wages, vacation pay or Health and Welfare premiums due, because he had obligations separate from wage claims totaling approximately $12,000.00. These obligations were withholding and social security taxes to the government, mortgages on equipment, etc.
In 1956 Gale Meyers [sic] wanted to return to work at the trade. The Local Council Board denied membership. He requested reconsideration on his case and wanted to reinstate himself. The Council Board again took up the matter and their decision was to reconsider the case again at such time as he is employed at the trade. No commitment was made, however, as to whether such consideration would be favorable or unfavorable.
This just about completes our records on Gale Meyers [sic]. From the above history you may draw your own conclusions.
Fraternally yours,
George K. Gundersen,
Vice President, Local No. 4.”

In this court, defendants contend that the trial court erred in failing to hold as a matter of law that the communications forming the basis of plaintiff’s claim are conditionally privileged and erred in failing to instruct the jury accordingly; in failing to hold that the Statute of Limitations barred recovery for the publication of one of the letters in question; in permitting the jury to consider republication in the absence of evidence that defendants authorized or ratified it; in denying defendants’ motions for directed verdict and their post-trial motion; in excluding relevant and material evidence offered by defendants and in giving and refusing certain instructions. Plaintiff responded by urging that the letters in question were not protected by qualified privilege; no part of the action was barred by the Statute of Limitations; the court properly refused to instruct the jury that defendants were liable only for the original publication of the letters; defendants were not entitled to a verdict in their favor and the trial court committed no prejudicial or reversible error.

Plaintiff takes the position that the letters sent by defendants in April of 1960 and January of 1965 are both libelous per se. Tire trial court so ruled by an order granting plaintiff’s motion to strike a portion of defendants’ answer and also by an instruction to the jury (Plaintiff’s instruction No. 11). Since defendants do not take issue with this contention, it need not be considered. However, defendants urge strongly that under the circumstances here disclosed, these letters were both conditionally privileged. The verdict of the jury described ite award as “compensatory damages.” The jurors drew a line upon their verdict striking out the words “punitive damages in the sum of” which appear therein. This line continues across the blank space provided for insertion of an amount immediately after the stricken language.

On plaintiff’s motion, and over defendants’ objection, the trial court submitted to the jury the issue of whether these letters sent by defendants were conditionaHy or qualifiedly privileged. The court instructed the jury as foHows (Plaintiff’s Instruction No. 15):

“In order for a person who has made a defamatory statement to be entitled to a qualified privilege, he must prove that the statement was made in good faith on a proper occasion and in a proper manner to proper parties and limited in its scope to a proper purpose.”

Again, in the ins traction on the issues (Plaintiff’s Instruction No. 22, based upon IPI-20.01.01), the court instructed the jury that the defendants claimed as an affirmative defense that “* * * [t]he statements contained in the letters are privileged as a proper communication in response to an inquiry concerning plaintiff and that they had reasonable cause for believing the matters contained therein were true.”

In addition, in defining to the jury the burden of proof on the issues (Plaintiff’s Instruction No. 23, based upon IPI-21.02.02, 21.03), over objection by defendants, the court again described the so-caHed affirmative defense of privilege. The jury was also instructed that if they found the letters were privileged as thus defined, that plaintiff had the burden of proving that the privilege had been abused.

In a number of cases, the reviewing courts of IHinois have held that the issue of whether an allegedly libelous letter “* * * was a qualifiedly or conditionally privileged communication, or not, was a question of law for the court only, not a question of fact for the jury.” This appears amply from a long line of accepted decisions in Illinois. Schlaf v. State Farm Mutual Auto Insurance Co., 15 Ill.App.2d 194, 203, 145 N.E.2d 791; Judge v. Rockford Memorial Hospital, 17 Ill.App.2d 365, 384, 150 N.E.2d 202; Zeinfeld v. Hayes Freight Lines, Inc., 41 Ill.2d 345, 243 N.E.2d 217.

Therefore, the trial court was in error in tendering to the jury for their determination the issue as to whether or not the letters in question were conditionally privileged. The resolution of this issue was a question of law which should have been decided solely by the trial court. The essential elements which bear upon the existence of conditional privilege appear to be: (1) good faith by the writer; (2) an interest or duty to be upheld; (3) a statement limited in its scope to that purpose; (4) a proper occasion and (5) publication in a proper manner and to proper parties only. See Zeinfeld citing from Judge at 41 Ill.2d page 349.

It is our considered opinion that the trial court should have found, as a matter of law, that aH of these essentials are satisfied in the case at bar and that both of the letters in question were conditionally privileged. As regards both communications, it appears that the respective writers thereof each had an interest or duty to be upheld. Both of them acted in their capacity as officials of the local union who were discharging their duty to officers of affiliated local unions in other cities. The contents of both letters were limited in scope to the purpose of responding adequately to the inquiries. In addition, the duty of responding to these inquiries by defendants demonstrates that both letters were sent upon proper occasions.

Furthermore, both of these letters were sent by the respective defendants to the proper party only; namely, the officials of the respective local unions who made the inquiries. Plaintiff urges that he was damaged and injured by the fact that the contents of these letters came to the attention of Paul Luther who was one of the proprietors of the Color-Ex Company. Plaintiff testified that he had attempted to purchase a proprietary interest in this firm, which was established in Miami, and that he could consummate this arrangement only if he were able to render production services in the shop of the company. It is undisputed that labor contract provisions required plaintiff to become a member of Local 78-L of the Lithographers and Photoengravers International Union in Miami for this purpose.

It appears from all of the evidence that David Carr, president of this local union, to whom the letter of January 21, 1965 was directed, had never spoken to Paul Luther except upon one occasion entirely unrelated to the case at bar. Carr testified that he did not show either of the letters to any person except possibly officials of his local union, No. 78-L. The evidence does not show how or from what source Paul Luther obtained copies of the two letters. It shows only that Luther read these letters to plaintiff on the telephone. Plaintiff drafted a proposed letter to be retyped by Luther on his own letterhead and then sent to plaintiff. This letter described the letters as submitted to Luther “by the Local President.” Luther retyped plaintiff s letter and sent it to plaintiff together with copies of the allegedly libelous letters. Luther modified the above quoted language suggested by plaintiff and the letter actually written by him stated that the letters had been “submitted to us through our union local secretary.” However, Luther’s Color-Ex firm had no collective bargaining agreement or other official relationship or dealings with Local 78-L with which David Carr was connected, but only with Local 78-P. These two Miami locals using the same number and different letters were separate and independent at the time of the writing of the letter of January 21, 1965 and merged in 1966. There is no evidence that defendants had any part in disclosing these letters to Paul Luther of the Color-Ex firm.

Donald Biedenbach, recipient of the earlier letter, testified that he never presented it to, or read or referred to it at any union meeting. He did not send a copy of the letter to any person connected with the firm with which plaintiff was then associated and never discussed it with any such person. Upon receipt of the letter, he read it, then put it into his file and did nothing further with it.

The record also shows that plaintiff never tendered his initiation fee to Local 78-L so that his application for membership was actually never denied by this union. We, therefore, approve the position urged by defendants that there is no evidence of republication by them of either of the letters. The respective activities of defendants terminated with the sending of both letters. This leads to the conclusion that the trial court should have ruled as a matter of law that publication of these letters by defendants was in a proper manner and to proper parties only.

Similarly, it appears to us that the element of good faith by the writers of both letters is patently present so as to complete all of the elements required for the existence of conditional privilege. Good faith in this concept should not be confounded with issues pertaining to actual or express malice or abuse of the conditional privilege. Whether the letters in question were sent in good faith in order to render them conditionally privileged was an issue of law to be decided solely by the court. The court should have determined this primarily from the face of the letters themselves, from the occasions on which they were written, from the conduct of defendants in connection with these letters and also from the relationship between the writers of the letters and the addressees. All of these sources, when analyzed, are indicative solely of good faith by defendants in the making of their responses to the inquiries.

This question of law must be carefuUy distinguished from factual questions regarding actual or express malice which may lead to an abuse of a conditional privilege. “Such abuse occurs if the publisher does not believe in the truth of the defamatory matter, or has no reasonable grounds for beheving it to be true. Suchomel v. Suburban Life Newspapers, Inc., 40 Ill.2d 32; Restatement of the Law, Torts, secs. 600-601, pp. 264, 265." (Zeinfeld v. Hayes Freight Lines, Inc., 41 Ill.2d 345, 350, 243 N.E.2d 217.) Once it appeared that these communications were conditionally privileged, the burden rested upon plaintiff to prove actual or express malice on the part of defendants as above defined which would constitute an abuse of the privffege so as to avoid it. Plaintiff was obliged to prove such malice by a preponderance of the evidence, precisely as any other factual issue. (Flannery v. Allyn, 47 Ill.App.2d 308, 318, 198 N.E.2d 563.) Quite erroneously, the instructions to the jury referred to the existence of malice as an “affirmative defense” of defendants. Plaintiff’s Instruction No. 22.

It follows, therefore, that the court should have ruled that these communications were conditionally privileged as a matter of law. Thus, the issues in this case were submitted to the jury under an entirely erroneous theory. These rulings of the trial court deprived defendants of a fair trial and constituted reversible error.

It remains, however, to determine the merits of defendants’ contention that their motions for directed verdict at the close of all the evidence and their post-trial motions for judgment in their favor should have been granted by the court. In this regard, we will apply the established rule that the verdict should have been directed in favor of defendants or judgment n.o.v. entered only if it appears, after a review of the entire record on the issue of the existence of actual or express malice, that all of the evidence, when viewed in its aspect most favorable to plaintiff, so overwhelmingly favors the defendants that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504.

It should be pointed out initially that the second count of plaintiff’s second amended complaint alleged that defendants had conspired to injure plaintiff’s good name and reputation by circulation and publication of defamatory libels against him. At the close of plaintiff’s case, on motion of defendants, the court directed a verdict in favor of defendants on this second count and ordered judgment in their favor thereon. No cross-appeal was taken by plaintiff from this order. (See De Phillips v. Mortgage Associates, Inc., 8 Ill.App.3d 759, 762, 291 N.E.2d 329.) Our analysis of the evidence leads to the conclusion that this ruling of the court was entirely proper. Consequently, we will consider the evidence of malice, as above defined in Suchomel and Zeinfeld, regarding whether defendants believed in the truth of the allegedly defamatory matter or had reasonable grounds for believing it to be true as to each defendant individually and in accordance with the Pedrick standard. This necessarily entails examination of the testimony and of the matters contained in the files of Local Union No. 4.

Defendant Gundersen is presently a vice-president of Local 245 in Chicago. He was a member of the executive board of this union commencing with 1950. In 1953, he became financial secretary-treasurer and in 1956 vice-president. Shortly before he wrote the letter dated April 7, i960, defendant Spohnholtz told him to review plaintiff’s record and to send it on to Donald Biedenbach, the President of Local No. 11 in Rochester, New York. Gundersen did not recall speaking to Biedenbach but he received the information regarding this inquiry only from Spohnholtz.

The Chicago local union here involved has approximately 4500 to 5000 members. Its records included some 12,000 various files pertaining to individual members and 400 to 450 files concerning various companies. Gundersen testified that he reviewed the personal file pertaining to plaintiff and also the file pertaining to Offset Fine Arts, Inc. with which plaintiff was at one time connected. In addition, he requested the office manager of the local union to go through the minutes and to give him any which contained information regarding the status of plaintiff’s membership.

These records showed, which was true, that plaintiff was expelled from the local union on March 10, 1939 for “contempt of association.” The minutes recite that plaintiff “* * * felt at that time he did not need union support and could get along independently.” Also these minutes reflect that plaintiff owed the local union dues and assessments in the amount of $55.50. This was the figure set forth in the first paragraph of the letter written by Gundersen on April 7, 1960.

Gundersen testified that when he prepared the second paragraph of the letter regarding the bankruptcy of Offset Fine Arts, Inc., he depended upon notations on the record cards of employees of that firm at the time it closed as well as on the minutes of union meetings. The trial court refused to receive these cards in evidence. In our opinion, however, these cards were records of the local union kept in the usual and ordinary course of its business and, therefore, should have been received in evidence. (Supreme Court Rule 236(a), 50 Ill.2d Rule 236(a).) It was reasonable for defendant Gundersen to depend upon the notations on these cards which showed that in December of 1950 Offset Fine Arts, Inc. went into bankruptcy as stated in the second paragraph of his letter. He testified that he assumed this fact from looking at the cards. He further testified that the Offset file showed that the local union was unable to collect wages, vacation pay and health and welfare premiums from Offset.

According to plaintiff’s own testimony, he had founded Offset Fine Arts, Inc. in 1939, operated the company at a profit and sold his interest out in 1948. Thus, he maintains that, when the company did go out of business in 1950, he had no connection whatsover therewith. There is nothing in this record to show that Gundersen knew this fact and there is nothing in the union files to advise him directly that plaintiff had liquidated his holdings in the corporation prior to the time it closed its doors. Included in the file was a copy of a complaint at law, comprising some eight pages, filed by the attorneys for Local 4 of Chicago in behalf of nine members. Count I sought to recover unpaid wages, vacation pay and termination wages from Offset Fine Arts, Inc. Count II sought the same recovery against Randall F. Knight, Rupert A. Young and Isabell ICniglit who were described as the three directors of the corporation and its president and secretary-treasurer. This document does not contain plaintiff’s name. However, a most careful reading of the complaint shows that it contains no allegations regarding ownership of'the corporate stock by any of the three defendants joined thereto so that it is not inconsistent with the hypothesis of the existence of a continued financial or stock interest in the corporation by plaintiff. In fact, Gundersen testified specifically that there was nothing in the file stating that plaintiff was no longer connected with Offset when it terminated its business. He stated, “Otherwise I would have written the letter differently.”

On September 27, 1949, a letter was written by the union welfare fund to “Mr. Randall Knight, Offset Fine Arts, Inc.” advising him of monies due the Welfare Fund. This letter also stated, ‘We are aware of the change in personnel at your plant s * There were also checks in the file which were received by the Union Health & Welfare Fund which were signed by a person other than plaintiff. In addition, on November 22, 1950, the president of the Chicago local wrote to “Mr. R. Young, Offset Fine Arts, Inc.” advising again of a default in payments to the union welfare fund. The files also show copies of correspondence between counsel for the local union and other persons with reference to sums allegedly due from Offset “as of the time it closed its doors.” There is a copy of one letter dated January 26, 1951, written by counsel for the local union which is apparently the source of the statements contained in the second paragraph of tire April 7, 1960 letter regarding obligations due from Fine Arts. This letter states that the attorney did not at that time approve of the filing of bankruptcy proceedings against Offset.

There are other copies of letters dated April 17, 1951, June 8, 1951, October 24, 1951 and also March 28, 1952. These letters show reports made by the attorney to certain members regarding the fact that a judgment was being sought “not only against the corporation but against the individuals who ran and owned the corporation.” The letter goes on to state that the court refused to allow the case to proceed against the individual owners, but only against the corporation.

Plaintiff urges that this evidence is sufficient to show the presence of malice in connection with the writing of Gunderson’s letter. We cannot accept this argument. It may be that if a trained and experienced lawyer, such as counsel in the case at bar, examined each and every document in the file in minute detail, and carefully compared the letters from the attorney to the complaint against Offset and others, such person might conceivably be put upon notice as to whether or not plaintiff had severed his financial connection with the corporation by April 7, 1960, when Gundersen wrote the letter. However, we cannot conclude that this evidence is sufficient to show that Gundersen did not actually believe that the statements in his letter were true or that there were no reasonable grounds for his clearly expressed belief that his letter did speak the truth. It should also be noted that these copies of letters and other matters antedated the Gundersen letter by approximately eight years.

Plaintiff also urges that there was no information in the union files to support the statement in the first paragraph of the Gundersen letter that plaintiff violated the union bylaws by soliciting a job at a shop under contract with the local. However, it appears from minutes of a special meeting of the local council, dated February 24, 1939, that the shop chairman of a company under contract with the union had notified the union president that plaintiff was soliciting a job in that shop without first obtaining the consent of the local union. The minutes show that the president notified plaintiff by telegram to appear and that he had failed to respond. This was the basis of plaintiff’s expulsion for “contempt of association.” Plaintiff urges that investigation showed that he owed nothing to his former employees. The minutes of the local council show that certain members had been contacted and had advised that plaintiff did not owe them any money. This is an ambiguous statement which might well have had reference only to personal debts or obligations between plaintiff and other members of the local union.

However, defendants tendered in evidence a certified copy of petition, schedules and statement of affairs filed on March 22, I960 in bankruptcy proceedings in the United States District Court for the Northern District of Illinois, Eastern Division, involving plaintiff as the bankrupt. A number of the headings in these papers, apparently prepared in plaintiff’s behalf, show plaintiffs name and beneath the name, Offset Fine Arts in parenthesis. In addition, the schedules signed under oath by plaintiff show that plaintiff was then the owner of 5000 shares of common stock in Offset Fine Arts, Inc., described therein as “defunct.” Although these documents were ostensibly not available to either of defendants at the time they wrote their respective letters, they were competent as an admission by plaintiff as a party-opponent to the effect that when the schedules were executed by him he remained the owner of what appears to be a substantial stock interest in the corporation. (See Cleary, Handbook of Illinois Evidence, 2nd Edition, sec. 17.11 page 280.) These schedules were filed some 16 days prior to the Gundersen letter.

Gundersen testified that he met plaintiff for the first and only time in the union office during 1956. He testified that he had never spoken to plaintiff at any other time, that he did not know that plaintiff had sold his interest in the corporation and he did not know plaintiff’s successors therein. He testified further that he knew of Offset Fine Arts, Inc., operating in Chicago, as an excellent shop as regards production quality. Upon most careful consideration of all of the evidence, and viewing all of it in its aspect most favorable to plaintiff, we must conclude that Gundersen had reasonable grounds for believing the statements in his letter to be true; and, further, that he actually believed them to be true.

As regards defendant Spohnholtz, he became a member of the Chicago local in June of 1929. He became a member of the local executive council in 1943; financial secretary in 1947; vice president in 1950; and president, the position he now holds, in 1956. On January 7, 1965, the president of Local 78-L in Florida wrote to Spohnholtz and asked for information regarding plaintiff with the statement that plaintiff had applied for membership in the Florida local. In his application for membership, plaintiff had stated that he had been expelled from the Chicago local. This type of inquiry between locals was common procedure in accordance with the International constitution. Spohnholtz testified that he received some 25 to 30 such requests every year.

Upon receipt of this inquiry, Spohnholtz found in the local’s file pertaining to plaintiff a copy of the letter written by Gundersen in 1960. This refreshed his recollection regarding his request that Gundersen write this letter. However, he testified that this was the first time he had ever seen a copy of this letter. He then wrote the short second letter dated January 21, 1965, in which he enclosed a copy of the previous letter. He did not then again check the facts set forth in Gundersen’s letter. He testified that he and Gundersen had “worked together for a long period of years” and that he had “no reason to disbelieve” the previous letter. The complete dependence of Spohnholtz upon the Gundersen letter is evidenced by his misspelling of plaintiff’s name precisely as in the previous letter. At one time, he had seen checks issued by Offst Fine Arts signed by Rupert A. Young applicable to union pension payments which had been returned because the bank account had been closed. He testified that he believed then that plaintiff was “a part of” Offset.

Spohnholtz testified that he met plaintiff in 1956 and knew that plaintiff had been a member of the local union. He did not recall seeing plaintiff since that time or having any other personal contact with the plaintiff to the present and doubted that he had even spoken to plaintiff on the telephone. In effect, he depended upon the conclusions previously reached by Gundersen. As regards Offset, he knew that it had closed down in 1950 but did not know that plaintiff had no connection with it at that time. Under these circumstances, we are impelled to the conclusion that Spohnholtz actually believed his letter to be completely time and that he had reasonable grounds for this belief. This record graphically shows only the most fleeting personal contact between either of defendants and plaintiff. Certainly it displays no “* * * ill will towards the plaintiff, or an actual intention to injure or defame * * *” him. Note the definition of malice in these terms in the frequently cited authority of Judge v. Rockford Memorial Hospital, 17 Ill.App.2d 365, 387, 150 N.E.2d 202.

It must be considered here that the legal standard for such express malice, which is sufficient to avoid conditional privilege, must necessarily exceed simple negligence. Under the accepted legal standard, the conduct of defendants in writing these letters is sufficient to limit their conditional privilege only if they had no reasonable grounds for believing their statements to be true or actually did not believe them to be true. We have made every effort to construe all of the evidence in its aspect most favorable to plaintiff. We conclude that the record so overwhelmingly favors defendants that the verdict against them cannot stand. It follows necessarily that the verdict against both defendants should be set aside and judgment entered in their favor.

In view of this conclusion, it is unnecessary for us to pass upon the remaining contentions raised by defendants. The judgment against defendants is accordingly reversed and the cause remanded with directions to enter judgment for the defendants and against plaintiff.

Judgment reversed and cause remanded with directions.

BURKE, P. J., and EGAN, J., concur.


text:
    Flora Suttle, Plaintiff-Appellant, v. The Police Board of the City of Chicago et al., Defendants-Appellees.
    (No. 56878;
    First District (1st Division)
    April 9, 1973.

      Kleiman, Cornfield & Feldman, of Chicago, (J. Dale Berry, of counsel,) for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Thomas J. Cachor, Assistant Corporation Counsel, of counsel,) for appellees.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

The Police Board of Chicago ordered discharge of Flora Suttle (plaintiff) from her position as a junior clerk in the Police Department of Chicago. She appeals from a subsequent order of the circuit court dismissing her complaint for administrative review (Ill. Rev. Stat. 1971, ch. 24, par. 10—1—45; ch. 110, par. 264 et seq.) and also denying her motion to remand the cause to the Board.

In this court, plaintiff contends that the decision of the Board is contrary to the manifest weight of the evidence; fails to set forth sufficient findings as to probative facts and that “the decision to discharge plaintiff was the product of an improper commingling of the prosecutive and adjudicatory functions.”

As regards the first contention, it is not necessary to summarize the evidence in complete detail. On September 26, 1969, at about 11:30 P.M. plaintiff and a group of her coworkers left police headquarters at the end of their work. They walked together through a doorway and down a staircase leading to the first floor. There were approximately six employees in the group. One member of the group testified that while on the stairs she was kicked in the back by plaintiff so that she fell down several stairs and then was attacked and beaten by plaintiff. This testimony is corroborated by another member of the group. Plaintiff denied that she kicked the other woman downstairs and denied that she beat her afterwards. Three other members of the group all testified that they did not see plaintiff kick or strike the complainant. It thus appears that the testimony was contradictory so that a question of credibility was presented to the Board for decision.

In Davern v. Civil Service Com., 47 Ill.2d 469, 471, 269 N.E.2d 713, the Supreme Court cited the Administrative Review Act to the effect that findings of administrative agencies on questions of fact are “prima facie true and correct.” (Ill. Rev. Stat. 1971, ch. 110, par. 274.) The court further stated that this provision had been construed “* * * to limit the function of the reviewing court to ascertaining whether the findings and decisions of the administrative agency are against the manifest weight of the evidence.” In other words, this court must determine “* * * whether the final decision of the administrative agency is just and reasonable in light of the evidence presented.” (Davern v. Civil Service Com., 47 Ill.2d 469 at page 471.) In a recent case, this court set forth this accepted doctrine and further pointed out that, "where the resolution of factual issues is dependent upon the credibility of the witnesses, the courts will not, on review, reweigh the evidence even though an opposite conclusion might be reasonable.” Moriarty v. Police Board of Chicago, 7 Ill.App.3d 978, 982, 289 N.E.2d 32.

Application of these familiar and established principles to the case at bar requires us to conclude that the decision of the Board is based upon sufficient evidence; that it is not contrary to the manifest weight of the evidence and that plaintiff’s contention must be rejected.

The decision of the Board incorporates seven findings. It recites the status of plaintiff; the service of written charges and notice of the hearing upon plaintiff; the actual holding of the hearing at which plaintiff appeared in person and with her own counsel; denial of motions made by plaintiff; a statement that plaintiff is guilty of violating Rule 2 of the Police Department by “s * * action or conduct which impedes the Department’s efforts to achieve its goals, or brings discredit upon the Department * * *” and concludes with the finding that plaintiff pushed the complainant, a Police Department employee, down a flight of stairs at police headquarters and then struck complainant repeatedly while she was lying on the floor. In our opinion, these findings are' ample and complete for all purposes. They show that the Board did not act arbitrarily and they expound the rationale of its decision. They give ample advice to the litigants as to the reasons underlying the Board’s action. Also, these findings are sufficient for review by this court as they indicate to us the basis upon which the Board reached the conclusion that it did.

In our opinion, no greater detail or prolixity of findings should be required in the decision of an administrative agency involving the type of question here presented. As pointed out, findings of this type are sufficient for all practical purposes in connection with discharging the function of the administrative agency and simultaneously affording proper protection to the rights of all litigants before the agency and before the reviewing court.

Plaintiff depends upon Maywood Trotting Assn. v. Racing Com., 15 Ill.2d 559, 155 N.E.2d 626. There, the Supreme Court reviewed an order of the Illinois Harness Racing Commission allocating dates. The court held that the case was moot because the challenged dates had passed. The court criticized the absence of express findings of fact in the Commissions order. However, as the Supreme Court pointed out, the applicable statute required the Racing Commission to give due consideration to a number of specific factors in granting of racing licenses and allocating dates for racing meets. (Ill. Rev. Stat. 1957, ch. 8, par. 37s.l0.) Absence of express findings as to these various factors made the basis of the Commissions decision questionable. There is no similar statute applicable to decisions by the Police as involved in the case at bar.

Complete refutation of plaintiffs contention also rests upon other adequate grounds. There is no statutory requirement for detailed and specific finding of facts in a decision by the Board. It has been aptly stated that such a requirement would necessarily be “judicially manufactured.” (Massey v. Fire & Police Com. of Mt. Vernon, 26 Ill.App.2d 147, 149, 167 N.E.2d 810.) In Massey, the court pointed out that the record of the testimony before the administrative agency was preserved for review so that specific findings were not essential to the reviewing tribunal. The court held that the absence of specific findings of fact was not ground for reversal of the agency’s decision and pointed out, “It would be of no help to the court, nor any benefit to plaintiff, to add a requirement for findings of fact by the board.” 26 III.App.2d 147, 151.

Similarly, in Rauland Div., Zenith Radio v. Metropolitan Sanitary Dist., 2 Ill.App.3d 35, 275 N.E.2d 756, this court upheld an administrative decision of the Board of Trustees of the Sanitary District against the contention that written findings were required. This contention was based upon the use of the word “findings” in section 11 of the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 274) and upon the due-process provisions of the Illinois and United States constitutions. This court held that a general finding by the Board was sufficient. The standard used was that “* * # the findings of the Board were sufficient and adequate to permit an orderly and efficient review of the Board’s decision.” 2 Ill.App.3d 35, 40.

By way of further analogy, the Criminal Code of Illinois provides that the order or judgment of the court which grants or denies a motion to suppress “* ” * shall state the findings of fact and conclusions of law upon which the order or judgment is based.” (III. Rev. Stat. 1971, ch. 38, par. 114—12(e).) However, it has been consistently held in this jurisdiction where the evidence as preserved and presented to the reviewing court fairly sustains the ruling of the trial court, that ruling will be affirmed even though the trial court made no express findings of fact or conclusions of law. People v. Green, 8 Ill.App.3d 737, 290 N.E.2d 12; People v. Eastin, 8 Ill.App.3d 512, 517, 289 N.E.2d 673.

After the hearing before the Police Board had concluded and plaintiff had filed her complaint for administrative review, her counsel noted in the record a letter from an assistant corporation counsel to the secretary of the Police Board, dated August 5, 1970, stating as follows:

“August 5, 1970
Mr. Raymond Hauser Secretary of the Police Board 1121 S. State Street Chicago, Illinois 60605 Dear Sir:
Pursuant to your request for aid in preparing the findings and decision of the Police Board relating to Junior Cleric Flora Suttle, assigned to the Field Inquiry Section of the Department of Police of the City of Chicago, we are enclosing findings and decision prepared in accordance with the information contained in your communication.
Very truly yours,
/s/ Fred Kunik Fred Kunik,
Assistant Corporation Counsel
Approved:
/s/ Richard L. Curry CORPORATION COUNSEL FK/mfg Enel.”

As a result, plaintiff’s counsel filed in the circuit court a motion for taking of the depositions of the members of the Board and employees of the corporation counsel or, alternatively, that the cause be remanded to the Board for the taking of additional, newly discovered evidence. (See Ill. Rev. Stat. 1971, ch. 110, par. 275(1)(g).) Thereafter, plaintiff filed an amended motion for remand of the cause to the Board for additional and newly discovered evidence. The substance of this motion is that the corporation counsel and attorneys from that office had occupied an improper dual role in prosecuting plaintiff before the Board and then in participating in the decision-making process of the Board. We cannot agree.

A fair and reasonable reading and interpretation of the letter in question shows only that the corporation counsel aided the Board in preparing its findings and decision. We would gather from this letter that this action was taken at the request of the Board and pursuant to information presented by the Board to the corporation counsel. The latter acted apparently only by placing in final form the decision previously reached by the Board. Under no circumstances can we construe this as participation of the corporation counsel in the decision-making process. Analogously, after a trial court has decided a complicated chancery case, the preparation and presentation of a lengthy judgment order by counsel for the successful party could not be characterized as participation in or influencing the decision-making process.

In Hammers v. Board of Fire and Police Commrs, 10 Ill.App.2d 218, 134 N.E.2d 647, proceedings against an officer were initiated by a detailed set of charges prepared by the Chief of Police and submitted to the Board. Formal charges were prepared by the Board incorporating the substance of these charges. This court held that the Board did not, as a result of this process, act in a dual role, but that tire Board had merely caused the substance of the charges to be written and served upon the respondent.

Plaintiffs reliance upon Wong Yang Sung v. McGrath, 339 U.S. 33, cannot assist her. There, the Supreme Court held that the hearing officer in a deportation procedure could not be a person who had acted in investing or prosecuting the pending case. This was in accordance with the specific requirements of the applicable Federal statute. (See 339 U.S. at 45.) Similarly, in Camero v. United States, 375 F.2d 777, there was actually indirect consultation between a prosecuting attorney and the person charged with rendering the opinion prior to formulation of the decision. On the contrary, in the case at bar, the only logical interpretation of the letter which is the sole basis of plaintiff’s claim is that the function of the corporation counsel was limited to the technical task of couching the decision in proper legal form after the substance of that decision had been independently formulated by the Board.

We find no error in this record and the order appealed from is accordingly affirmed.

Order affirmed.

BURKE, P. J., and EGAN, J., concur.