text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Peter Griffin, (Impleaded), Defendant-Appellant.
    Gen. No. 51,123.
    First District, Third Division.
    November 9, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The defendant Peter Griffin and one Richard Depratto were charged with the crime of robbery. They waived their right to a jury trial and were tried by the court. Depratto was acquitted. Griffin however was found guilty and was sentenced to serve from one to ten years in the penitentiary. The sole contention is that the evidence was not sufficient to prove guilt beyond a reasonable doubt. The facts follow.

During the afternoon of May 1, 1964, Isaac Williams, a 76-year-old retired prize fighter, left his apartment and walked across the street to an apartment building at 3833 South Federal Street, Chicago. He entered the automatic elevator on the first floor and pressed the button for the sixth floor. He testified that he was partially turned facing the control panel when the elevator door reopened; that he turned to look and was struck by Griffin. Then, according to Williams, Depratto who had apparently also entered the elevator struck him and knocked him unconscious. Upon regaining consciousness Williams discovered that he had been robbed of a 1923 silver dollar, five quarters, ten dimes, two nickels and some pennies, one alligator wallet, a gold fountain pen and a pair of spectacles.

Depratto lived with his mother Mrs. Katherine De-pratto on the 14th floor of the building. She testified that Griffin knocked on her door and asked for a teaspoon, explaining that it was for a fellow who had a seizure on the elevator. She went to the elevator and finding Williams in a pool of blood, immediately returned to her apartment and called the police.

Officer James May responded to the call. He testified that Mrs. Depratto spoke to him in the apartment, pointed out the defendant and codefendant walking down the street and said, “There goes my son and Griffin, the ones who robbed the old man in the elevator.” Officer May and his partner Officer Morton arrested Depratto and Griffin at a poolroom. They searched them and found that each had about 80 cents in change, but neither one had the wallet, fountain pen, spectacles or silver dollar described by Williams.

Officer May testified that outside the poolroom the codefendant Depratto stated that he and the defendant thought the complaining witness was drunk and had fallen; that while trying to assist him to his feet the complainant had hit Depratto in the mouth, and De-pratto stated that he had hit him back and would hit anybody who hit him first. Officer May then pointed out Griffin and Depratto. He stated he was mistaken as to which man was Griffin and which was Depratto.

Williams also admitted he was confused as to which man was which. He testified:

“I talked to somebody in my house in regards to this case, and I said that Depratto was the first man that hit me. But I now know that the man that I thought was Depratto, was really Griffin. I know both of the two men hit me with a biff, baff.”

The finding of a trial court in a nonjury case is entitled to great weight because the court is able to observe the witnesses, judge their credibility and determine the weight to be accorded their testimony. People v. Johnson, 65 Ill App2d 361, 213 NE2d 288; People v. Young, 65 Ill App2d 185, 213 NE2d 146. The burden however is always upon the State to prove the defendant guilty beyond a reasonable doubt. Where the State’s evidence is improbable, unconvincing and contrary to human experience, judgments of conviction should be reversed. People v. Dawson, 22 Ill2d 260, 174 NE2d 817.

In the instant case the court acquitted Depratto and convicted Griffin. In its brief the State says:

“It is quite obvious from the testimony of the victim that he was struck almost simultaneously by the two defendants. The judge, as trier of the fact, was convinced that both defendants played a part in beating and robbing the victim.”

It appears that additional evidence was offered in defense of Depratto, but this evidence does not appear in the record. Even so, there is no plausible reconstruction of the State’s case which would support the finding of not guilty as to Depratto and guilty as to Griffin. The judgment must be reversed.

Judgment reversed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ

license: Public Domain

text:
    Arlena Armstrong, Administrator of the Estate of Felton Armstrong, Petitioner-Appellant, v. Susie Daniel and Dreis & Krump Credit Union, Respondents-Appellees.
    Gen. No. 51,462.
    First District, Third Division.
    November 9, 1967.
    Rehearing denied November 28, 1967.

      Frederick J. Bertram, of Chicago, for appellant.
    David L. Husman, John F. Laughlin, and Price, Noetzel, Schlager & Burgeson, of Chicago, for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The trial court denied the petition of the administrator of the estate of Felton Armstrong for an order requiring the payment to her of funds in an account with Dreis & Krump Credit Union in the sum of $5,727.91. The court found that the funds had been properly paid to the defendant Susie Daniel, sister of the deceased and the survivor of the joint tenancy created by the agreement entered into when the account was established. The facts follow.

On September 23, 1957, Felton Armstrong and his sister signed a card entitled, “Joint Stock Account Agreement,” which reads as follows:

“The undersigned hereby apply for the issuance of shares to them in joint tenancy with the right of sur-vivorship in the Dreis & Krump Credit Union, and, in consideration of the approval of this application by the said credit union, do hereby agree each with the other (s) and with the said credit union, that all sums now paid on shares or hereafter paid thereon, and all dividends therefrom shall be owned by us jointly with the right of survivorship, and in the event of the death of any of us the said credit union shall be liable thereon only to the survivor (s) and while any of us is living payment to any one of us shall discharge any liability of said credit union.
(s) Felton Armstrong
(s) Susie Daniel.”
Dated 9/23/57.

It is significant to note that this agreement is between Felton Armstrong and Susie Daniel as well as between them and the Dreis & Krump Credit Union.

Armstrong was an employee of Dreis and Krump Manufacturing Co. and on the same day that he and his sister signed the agreement hereinbefore set forth, he made an application for membership in the Dreis & Krump Credit Union (Credit Union). On the following day he deposited $5 with the Credit Union and thereafter made deposits from his salary.

On April 18, 1959, Armstrong married Arlena Armstrong and they lived together as husband and wife until his death on September 8, 1964. At the time of his death the account contained $3,727.91, and on September 23, 1964, $2,000 payable to the Credit Union from the Cuna Mutual Insurance Society as a death benefit “for the benefit of the person entitled, upon the death of the Member, to the account of the deceased credit union member,” was credited to the account. On September 25, 1964, the Credit Union paid $5,727.91 to Susie Daniel pursuant to the Joint Stock Account Agreement.

Petitioner first contends that the Joint Stock Account Agreement did not establish a joint savings account with the Credit Union, in that the agreement in question did not comply with conditions specifically required by the Joint Rights and Obligations Act. She contends that this Act abolishes all survivorship rights with certain statutory exceptions and that the agreement signed by Armstrong and Susie Daniel did not meet the conditions specifically required by section 2, paragraph (c) of the Act. Ill Rev Stats, c 76, § 2(c) (1965).

The Act generally abolishes survivorship rights in tenancies of personal property, but makes a specific exception where there is a “will or other instrument in writing expressing an intention to create a joint tenancy in personal property with the right of survivorship. . . .” HI Rev Stats, c 76, §2 (1965). Following this exception, the section also contains four provisos, or special provisions, with respect to joint tenancies which were inserted in connection with the acquittance of banks and other depositories. Paragraph (a) provides for deposits in banks and trust companies, (b) for shares of stock, bonds and other evidences of indebtedness issued by corporations, (c) for shares of stock, bonds and other evidences of indebtedness in savings and loan associations' and credit unions, and (d) for survivorship in the proceeds from jointly held real property taken through the exercise of the right of eminent domain. Ill Rev Stats, c 76, §2 (1965).

Paragraph (c) supra, which petitioner contends must be complied with in order to create a right of survivorship in the account in question, provides that when there is an agreement permitting payment to persons holding shares of stock, bonds or other evidences of indebtedness in credit unions and when that agreement is signed by all the parties at the time the shares of stock, bonds or other evidences of indebtedness were issued, payment to any such person shall be a valid release of the credit union for the payment so made. Ill Rev Stats, c 76, § 2 (c) (1965). It is significant that this proviso pertains only to liability between the depositors and the credit union. It has nothing to do with agreements between persons who are parties to joint tenancies in the accounts. Our court has already decided that paragraph (a) of the same section, which is substantially the same as paragraph (c) and differs only in that it covers deposits in banks and trust companies, was inserted only for the purpose of limiting the acquittance of the bank’s liability and has never required that persons taking with the right of survivorship should sign anything. Johnson v. Mueller, 346 Ill App 199, 104 NE2d 651. In that case the court held that the right of survivorship in funds represented by certificates of deposit was properly established even though there was no agreement signed by both parties as required by paragraph (a) of section 2. The court explicitly stated that the proviso need not be complied with when there was an instrument in writing. It concluded that the certificates of deposit themselves contained provisions for survivorship and as such were instruments in writing expressing an intention to create a joint tenancy with the right of survivorship.

In our case the Joint Stock Account Agreement is an instrument in writing which clearly expresses the intention to create a joint tenancy with the right of survivorship. Moreover the agreement is between Armstrong and Mrs. Daniel as well as between the parties and the Credit Union. This brings Armstrong’s account in the Credit Union clearly within the exception set out in the first paragraph of section 2 of the Joint Rights and Obligations Act.

Petitioner’s second contention is that there was no donative intent shown on the part of Felton Armstrong to establish a joint account in the Credit Union with Susie Daniel. She contends that even if there had been an intent to make a gift when the agreement was signed, the intent was conditional and that he intended Mrs. Daniel to take only if he remained unmarried. She supports this contention with Mrs. Daniel’s testimony. Mrs. Daniel was asked, “You said he wanted to sign it over to you in case anything happened to him?” She responded, “Yes; because he wasn’t married.” She continued, “And he never did change it when he got married. He never did change it.”

The court in Graves v. Graves, 42 Ill App2d 438, 192 NE2d 616, has had occasion to comment on what is necessary to show donative intent where donor and donee make an agreement in writing in order to create rights of survivorship in a savings account. It stated that compliance with the Joint Rights and Obligations Act dispenses with the necessity of applying common law principles governing the creation of joint tenancies, and that the subject matter of the gift is not really the funds on deposit in the account, but rather an interest in the account or power to deal with the funds on deposit. The court said (p 446):

“The written deposit agreements, however, tend to show a donative intent on the part of the original owner of the funds, and are sufficient to establish ownership in the survivor or survivors by virtue of the contracts and by virtue of the statutes upon the death of one of the depositors, in the absence of evidence to the contrary. Such deposit agreements are presumptive evidence of a donative intent and are effective unless the donative intent is disproved by other evidence, — proof of the agreements made a prima facie case for the plaintiff here.” (Emphasis added.)

Petitioner offers only Mrs. Daniel’s own testimony that Armstrong entered into the agreement “because he wasn’t married” to support her contention that the gift was conditional. This is only one statement taken out of the context of a great amount of other testimony which supported the contention that there was an unconditional gift. This evidence is far short of the clear and convincing proof necessary to rebut the presumption of donative intent. Frey v. Wubbena, 26 Ill2d 62, 185 NE2d 850.

Petitioner finally contends that the gift must fail because there was no manual delivery of a passbook to Mrs. Daniel. It is well established that this crude conception of manual delivery has been superseded by the view that delivery is a question of intention. Maciaszek v. Maciaszek, 21 Ill2d 542, 173 NE2d 476; Kiegel v. Riegel, 243 Ill 626, 90 NE 1108; Humphreys v. Humphreys, 300 Ill 46, 132 NE 774. Our Supreme Court had occasion to comment on the necessity of delivery of the passbook in Illinois Trust & Savings Bank v. Van Vlack, 310 Ill 185, 141 NE 546. It held that the retention of exclusive possession and control of a passbook was not decisive of the question of intent or of the joint ownership of the deposit, and that the deposit of money by one person in the name of himself and another with that other’s knowledge, payable to either or to the survivor, gave a joint interest to the other person at the time of the deposit without any further delivery and regardless of possession of the passbook. In the instant case the intention of Armstrong to create a joint tenancy in the account is clearly evidenced by the Joint Stock Account Agreement. There was little more that he could have done to manifest his intention to create the joint tenancy than this.

The trial court did not err in finding that the proceeds of the account were properly paid to Mrs. Daniel as the survivor of the joint tenancy created by the Joint Stock Account Agreement, and the judgment is accordingly affirmed.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: MR. JUSTICE BRYANT

text:
    The Metropolitan Sanitary District of Greater Chicago, a Municipal Corporation, Plaintiff-Appellant, v. Ernst J. Rieck, Charles E. Rieck, William C. Rieck and Marie C. Rieck, Co-Partners, Doing Business As the Grand Salt Company, Defendants-Appellees.
    Gen. No. 51,716.
    First District, Second Division.
    October 27, 1967.
    Rehearing denied November 22, 1967.

      George A. Lane, of Chicago (Fred F. Herzog, of counsel), for appellant.
    Arvey, Hodes & Mantynband, of Chicago (Louis M. Mantynband and Richard J. Troy, of counsel), for appel-lees.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Cook County dismissing the complaint for a declaratory judgment.

The Metropolitan Sanitary District of Greater Chicago (“plaintiff” herein) is the lessor under a lease of October 1, 1953, of a tract of approximately ten acres. The Riecks (“defendants” herein) are the lessees. The land which is the subject of the lease is District land adjacent to the District Sanitary ship canal. The term of the lease is fifty years beginning October fifteenth, 1953. According to the lease, the premises were to be used by the lessees for the purpose of warehousing salt and other commodities. The lessees agreed to improve the premises within five years from the date of the lease by the construction of a warehouse and clusters for a barge terminal. The lease required the lessees to submit all plans for the grading and drainage of the premises and for the erection of all buildings, “or any other construction” to the District’s Chief Engineer for his approval.

When the sanitary ship canal was built before the turn of the century, soil, gravel and rocks were excavated. This material was deposited along the banks of the channel and placed on the premises involved in this suit. This material formed what is referred to as the “spoil bank.” In 1964 the defendants-lessees entered into an agreement with Edmier, Inc. for the removal and sale of the spoil bank which Edmier wished to use as fill in highway construction. Plaintiff objected to that agreement. In April, 1964, plaintiff and defendants entered into an escrow agreement which provided that Edmier, Inc., for and in behalf of defendants, would deposit in the escrow account all monies paid by it for the purchase of the spoil. The fund thus deposited was to be held in the account for the benefit of the judicially determined owner of the spoil bank.

Suit for declaratory judgment was brought by the Sanitary District. The cause was referred to a Master in Chancery. His Report finding defendants entitled to the funds held in the escrow account was approved by the Chancellor. The Chancellor’s decree directed payment of the escrow funds to defendants.

On appeal plaintiff argues that the lease indenture did not authorize the lessees to remove or sell the spoil bank; that it would have been an act ultra vires for the District to have so sold the spoil bank; that it would be an unjust enrichment of defendants to allow them to retain the spoil bank money; and finally, that defendants’ sale of the spoil bank constitutes waste. We consider the first of these arguments to be dispositive of this case.

It is clear that the spoil bank was realty. The Illinois Supreme Court squarely faced this issue in Sanitary Dist. of Chicago v. Young, 285 Ill 423, at 425, 120 NE 826 (1918), and speaking in reference to the canal involved in this suit stated:

“The spoil banks are clearly a part of the real estate upon which they were placed when the excavation for the canal was made. The material comprising the spoil banks was part of the soil when excavated, and its character as land was not changed by reason of its displacement from the bed it originally occupied. It became incorporated with and a part of the soil where it was deposited. (Lacustrine Fertilizer Co. v. Lake Guano and Fertilizer Co., 82 NY 476.)”

It is also clear that the agreement between the parties of October, 1953, was a lease and not a sale of the premises. Appellees contend that the lease must be construed against the appellant because sound rules of construction require a lease to be construed most strongly against the lessor and against the party drafting the lease. These, no doubt, are sound rules of construction and are applicable where a lease is vague or ambiguous in its language. We do not find language in this lease indenture, however, which requires their application.

Defendants point to the provisions of the lease requiring lessees to undertake certain specified improvements upon the property, and contend that the contemporaneous construction placed upon this requirement by the parties demonstrates their right to sell the material. We do not agree. The testimony showed that removal of the spoil bank material was not necessary for construction of the warehouse and barge facilities. Only about five truckloads, a very small amount of spoil bank, were actually removed preparatory to this construction. The large scale sale to Edmier occurred after the completion of the construction. The removal of spoil bank incident to the construction was merely a leveling of the area to be occupied by the warehouse with the excess soil being removed to another area of the premises. These facts, coupled with the fact that the District was unaware that even the five loads had been carried away from the premises, do not indicate a contemporaneous construction of the parties requiring or allowing removal of spoil from the premises. On the contrary, these facts suggest that even defendants did not suppose large scale removal of spoil bank material from the premises to be a necessary implication of the construction requirements, but found removal to another area of the premises to be adequate.

Defendants contend that the plaintiff’s argument on appeal denying the right of defendants to remove spoil from the premises is contrary to the argument advanced by plaintiff at trial. Defendants’ contention is that at trial plaintiff conceded defendants’ right to carry away the spoil and that plaintiff may not alter its theory on appeal. Plaintiff’s counsel’s statements at trial were to the effect that defendants could be required to remove spoil from the construction site at their own expense. We do not understand counsel’s remarks to have meant a complete removal from the premises but rather a removal from the site to be occupied by the warehouse to adjacent areas upon the premises.

For the reasons stated the decree is reversed and the Circuit Court is instructed to enter a decree for the plaintiff.

Reversed and remanded with instructions.

LYONS, P. J. and MURPHY, J., concur.


author: MR. JUSTICE BURKE

text:
    Berman Leasing Company, a Corporation, Plaintiff-Appellant, v. Chicago Terminal Clearance, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 51,944.
    First District, Second Division.
    October 27, 1967.
    Maurice M. Loman, of Chicago, for appellant.
    Frank J. Scarpelli, of Chicago, for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This was an action to recover increases in rentals for which defendant was allegedly liable under a vehicle leasing agreement. Plaintiff appeals from the trial court’s dismissal of its amended complaint on defendant’s motion.

Plaintiff and defendant entered a truck leasing contract on January 20, 1961, whereby plaintiff agreed to lease to defendant fifteen specified truck tractors to be employed by defendant in its business as a freight operator within a fifty mile radius of Chicago. The lease, which was to run for a term of five years, provided that either party could terminate the lease as to any one or more of the vehicles on any anniversary date such vehicle or vehicles were put into service under the lease upon thirty days’ notice to the other party, but in the event defendant exercised its right in this regard, the lease required it to purchase the said vehicle or vehicles at a stipulated amount. The printed portion of the lease provided that the lessor was to bear a stated percentage of any increase in gasoline prices, insurance costs, taxes and license fees, while the lessee was to bear the balance of any such rise in costs in the form of additional rental. In this connection the printed portion of the lease stated that “[Mjonthly, Lessor will, as the case may be, invoice Lessee for any increase in the rental. The amount of such invoice shall be paid by Lessee within seven days from the date of such invoice.” On a blank line adjacent to the “Taxes and License Fees” item there appears the following typewritten statement: “in effect 1961 as shown on Sched. ‘A’.” Schedule “A” is a series of lined forms attached to the printed lease which contain specifications relating to the make, type, rental charge, etc., of the vehicles leased, in addition to a series of statements amending, modifying and altering the printed lease and adding matters not otherwise contained therein. One of these typewritten statements appearing on Schedule “A” is that the “ [Attached rates include Federal Use Tax, Gasoline Tax, State and City Licenses.”

On July 1, 1961, the Federal Highway Use Tax was increased which would have entailed an increase in the rentals under the printed terms of the lease. Plaintiff, however, failed to invoice defendant for any rental increases until July of 1964, after, the amended complaint alleged, auditors discovered the error. The initial billing in October of 1964, for the period from July of 1961 to July of 1964, amounted to $8,000, all of which defendant refused to pay. Subsequent invoices were sent, which defendant continued to refuse to pay, and this action was filed in January of 1966 asking judgment in the sum of $5,992.50.

Defendant filed a motion to dismiss the complaint on the ground that Schedule “A” of the lease, which was attached to and formed part of the complaint, reflected the agreement of the parties in that the rental charges quoted in the schedule included the Federal Highway Use Tax as noted therein, and that any increase in said tax must consequently be borne by plaintiff. The motion further stated the agreement of the parties was evidenced by plaintiff’s failure to invoice defendant for any of the increases until some three years after they had gone into effect. The complaint was dismissed and plaintiff filed an amended complaint containing the additional allegation that the failure of plaintiff to invoice defendant for the increases was due to a mistake which was corrected immediately after the error was discovered. Defendant’s motion to dismiss the amended complaint on the same ground as before was allowed and this appeal followed.

Plaintiff maintains on this appeal that the trial court erred in dismissing its amended complaint for the reason that it states a good cause of action against defendant. Plaintiff states that the lease and other exhibits attached to and forming part of the complaint clearly show that the burden was upon defendant to absorb all increases in taxes in excess of a stated percentage thereof, which was to be borne by plaintiff. We disagree.

The lease contains ambiguous provisions relative to who was responsible for increased taxes. The printed portion of the lease provides that the lessor shall bear 10% of any tax increase, and the lessee shall be liable for the balance thereof which was to be paid in the form of increased rentals, for which the lessor was to invoice monthly. However, this portion is modified by the typewritten statement that the taxes and license fees involved in the lease were those “in effect 1961 as shown on Sched. ‘A’.” Schedule “A” in turn states that the “[A]ttached rates include Federal Use Tax, Gasoline Tax, State and City Licenses.” The printed portion therefore places 90% of any tax increase upon the lessee, whereas the written portion shows that all taxes, fees, etc., were included in the stated rate charges. It is well settled that where there exists a difference between a printed portion of a document and a written portion thereof, the latter will generally be deemed controlling. Furthermore, any ambiguity in a document will be construed most strongly against the party drawing the document, which is, in this case, plaintiff. See Dixon v. Montgomery Ward & Co., Inc., 351 Ill App 75, 89, 114 NE2d 44. The lease shows the taxes for which defendant was to be liable were included in the rate charges contained in Schedule “A” thereof. Under the circumstances the trial court properly dismissed the amended complaint for failure to state a cause of action.

It should be noted that plaintiff delayed some three years before billing defendant for the increases. If plaintiff intended to place a different construction on the terms of the lease, it should have so informed defendant. In the meanwhile, defendant continued to pay what it thought was the agreed rental for the vehicles and was effectively foreclosed from exercising its right to terminate the lease if it found it economically more advantageous to terminate the lease and purchase the vehicles, or, in any event, from charging its customers higher shipping rates to absorb the increased charges at the time they first appeared.

For these reasons the judgment of dismissal is affirmed.

Judgment affirmed.

LYONS, P. J. and BRYANT, J., concur.


author: MR. JUSTICE MCCORMICK

text:
    Harold H. Hinkleman, Plaintiff-Appellee, v. Wilma I. Hinkleman, Defendant-Appellant.
    Gen. No. 52,058.
    First District, Fourth Division.
    October 27, 1967.
    Campbell, Boughner, Johnson & Gorski, of Chicago (Harry G. Johnson, of counsel), for appellant.
    Senese & Martino, of Chicago (Michael J. Martino, of counsel), for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook County granting plaintiff, Harold H. Hinkleman, a decree of divorce from defendant, Wilma I. Hinkle-man, on the ground of extreme and repeated cruelty.

On November 24, 1964, plaintiff filed his complaint for divorce, alleging extreme and repeated cruelty by defendant on September 15,1963, October 30, 1963, and November 22, 1964. The complaint further alleged that since November 22, 1964, the plaintiff had lived separate and apart from defendant without any fault on his part.

On December 24, 1964, defendant filed her answer to the complaint, denying the allegations of cruelty, admitting the parties had separated on November 22, 1964, and alleging that plaintiff drank intoxicating liquors to excess and was abusive towards her. On December 13, 1966, the matter was heard as a contested divorce by the trial court without a jury.

The plaintiff and the defendant were married on November 16, 1962, in Chicago, Illinois. No children were born of this marriage or adopted. Plaintiff testified that on December 24, 1962, the defendant, without provocation, slapped him in the face, knocking off his glasses, in the presence of his son and daughter-in-law, Jack and Frieda Hinkleman. Frieda Hinkleman testified that she was present on the occasion and that she saw the defendant slap the plaintiff, and that “his glasses went to the side.” Her husband who was present at the time did not testify.

Plaintiff testified that on September 15, 1963, the defendant slapped him in the face when he went to kiss her; that on October 30, 1963, she slapped him in the face. He further testified that on or about November 22, 1964, he left the defendant because she had threatened him with a knife.

Esther Mele, a daughter of plaintiff by a previous marriage, testified that from the time of the marriage of plaintiff to defendant up to the time of the separation, the defendant had thwarted all efforts of Mrs. Mele to visit plaintiff at the marital abode. Frieda Hinkleman also testified to the same effect.

At the close of plaintiff’s case the court permitted him to amend the pleadings to conform to the proofs by adding the alleged act of cruelty on December 24, 1962. The complaint was further amended as follows: “And again, on November 22, 1964, the Defendant struck him about the face and body with her fists so that he was marked and bruised.”

There is no evidence in the record that on November 22, 1964, the defendant struck the plaintiff at all. Nothing is said in the amendment about the threats which were testified to by plaintiff at the trial. We can entirely disregard any discussion of the question of condonation on the part of the plaintiff as it has been definitely held that “condonation is an affirmative defense and should not be considered unless specially pleaded.” McGaughy v. McGaughy, 410 Ill 596, 600, 102 NE2d 806. In the instant case there was no such pleading.

Defendant urges that the proven acts did not constitute “extreme and repeated cruelty.” In Levy v. Levy, 388 Ill 179, 57 NE2d 366, the court said at page 184: “Our statute requires proof of ‘extreme and repeated cruelty’ and obviously ‘slight acts of violence’ are not extreme as to a normal person whether husband or wife.”

No case has been cited to us, nor have we been able to find a case in which acts of cruelty as slight as those testified to in the instant case were held to be sufficient to allow a divorce on the ground of extreme and repeated cruelty. In McKeon v. McKeon, 4 Ill App2d 515, 124 NE2d 564, we indicated that our courts had not held that the conduct in that case amounted to extreme and repeated cruelty. The evidence there disclosed scratching, hitting in the face on several occasions.

From the evidence in the case before us the judgment of the Circuit Court must be reversed.

Reversed.

ENGLISH, P. J. and DRUCKER, J., concur.


author: MR. JUSTICE McCORMICK

text:
    Judy Ann Brackeen, Plaintiff-Appellant, v. Roberta L. Milner, Defendant-Appellee.
    Gen. No. 50,550.
    First District, Fourth Division.
    June 9, 1967.
    Rehearing denied December 12,1967.

      James N. Vail and Vail and Rollberg, of Chicago, for appellant.
    Peterson, Lowry, Rail, Barber & Ross, of Chicago (Walter W. Ross and Herbert C. Loth, Jr., of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

This appeal was taken from an order of the trial court entering a summary judgment in favor of the defendant and against the plaintiff, and denying the plaintiff’s motion for summary judgment as to defendant’s affirmative defense. The plaintiff had brought suit to recover damages flowing from the alleged negligence of the defendant and had demanded a jury trial. The defendant filed an answer denying negligence, denying that plaintiff at the time of the accident (April 4, 1968), was exercising due care, and affirmatively pleaded that on April 12, 1968, plaintiff had signed a release as to all claims against the defendant.

On December 11, 1963, plaintiff filed a reply to the affirmative defense in which she stated that the release had been obtained from her while she was a patient in the Henrotin Hospital in Chicago, under sedation and in a weakened condition due to a cerebral concussion, whiplash, lacerations about the head and body and fractured vertebrae received in an automobile accident eight days earlier. She stated that as a result she was deprived of her mental faculties and incapable of entering into a contract. She also alleged that the insurance adjuster who obtained the alleged release had visited her four days after the occurrence “in violation of the rules of the hospital and the plaintiff’s doctor”; that he had obtained the trust and confidence of the plaintiff and had continually assured her that everything would be taken care of. It is further alleged that on August 9, 1963, the plaintiff sent notice of disaffirmance of the alleged release to the defendant and her insurance carrier, Allstate Insurance Company, together with a certified check for $450, payable to the order of the defendant and her agent and insurance company.

On May 18, 1964, the defendant filed a motion for summary judgment, in which motion defendant summarized the pleadings and set out extracts from the plaintiff’s deposition with regard to her contact with the insurance adjuster. The last paragraph in the motion asked for an order for summary judgment for the defendant “because there is no genuine issue of material fact, but that plaintiff signed a release while she was in complete control of her mental faculties and free from duress or undue influence.”

On September 16, 1964, by leave of court the plaintiff filed a supplemental reply to the affirmative defense pleaded by the defendant in which she reiterated the matters set up in her reply, and in addition stated that the agent of the Allstate Insurance Company had told the plaintiff he would advise her as a friend that it was in her best interest not to retain an attorney; that it was in her best interest not to file suit against the defendant; and that since plaintiff “did not have any witnesses she would end up paying attorney fees and court costs and all the hospital and doctor bills”; that plaintiff acted upon the “fraudulent and untrue statement of Allstate Insurance Company that she had no witnesses, depending upon the trust and confidence she reposed in Allstate Insurance Company, unable to protect her own interests due to her weakened condition, tender age and lack of representation, signed a release of her claim against the defendant, Roberta L. Milner; that the disaffirmation of the release referred to in plaintiff’s first reply is predicated upon defendant Roberta L. Milner’s authorization of the aforementioned fraudulent acts of Allstate Insurance Company.”

On October 6, 1964, by leave of court the plaintiff filed a separate count in chancery and an amendment to the supplemental reply heretofore filed, in which count in chancery plaintiff set out substantially the same material contained in the two replies, and prayed that the release be declared null and void. In the amendment to the supplemental reply the plaintiff has set out that on August 9, 1963, she sent by certified mail to defendant and Allstate Insurance Company a certified check for $450, payable to defendant; that the defendant and her agent and insurance carrier, Allstate Insurance Company, retained the above described check for over eleven months. On October 28, 1964, the plaintiff filed a motion for summary judgment, supported by an affidavit of James N. Vail, her attorney, in which affidavit he reiterated the disaffirmation of the release and the retention of the certified check by Allstate Insurance Company for over eleven months. Attached to his affidavit was the notation of disaffirmance and tender back of consideration dated August 9, 1963. The notice was addressed to Roberta L. Milner and Allstate Insurance Company, and read as follows:

“Please be advised that Judy Ann Brackeen dis-affirms, rescinds and forever cancels a certain release tendered to her on or about April 12, 1963 at Henrotin Hospital, 939 N. LaSalle St., Chicago, Illinois, by a claims adjuster employed with and representing Allstate Insurance Company, and signed by said Judy Ann Brackeen for $450.00 while hospitalized and under treatment for fractured vertebrae, cerebral concussion, lacerations about the head and body and other serious and permanent injuries resulting from being struck by an automobile driven by Roberta L. Milner, 20 E. Goethe, Chicago, Illinois, on or about April 4, 1963, at or near State St. and Wacker Drive, Chicago, Illinois.
“Be also advised that Judy Ann Brackeen tenders herewith the sum of $450.00 in the form of a certified check drawn on The Northern Trust Company and made payable to Allstate Insurance Company and Roberta L. Milner.”

In support of plaintiff’s motion for summary judgment a letter was also filed. The letter was from Allstate Insurance Company, dated July 20, 1964, addressed to Vail and Rollberg, and read as follows:

“Enclosed please find your certified check in the amount of $450.00 that was forwarded to our office on August 9,1963.
“Any inquiries regarding this matter will be handled by the law firm of Peterson, Lowry, Rail, Barber and Ross.
“Yours truly,
/s/ Ralph Widlic, Claim Examiner”

On November 19, 1964, Ralph Widlic filed an affidavit in which he stated among other things that he is the claim examiner employed by Allstate Insurance Company and is familiar with the suit of Brackeen v. Milner, and that Roberta L. Milner is Allstate’s assured. He further stated that on or about August 13, 1963, he received a personal check in the amount of $450, drawn on the account of James N. Vail at the Northern Trust Company; that on or about August 15, 1963, affiant had a telephone conversation with Vail wherein affiant advised Vail that “Allstate Insurance Company considered valid a certain release of all claims against Roberta L. Milner signed by Judy Ann Brackeen on April 12, 1963; in said telephone conversation affiant refused to negotiate settlement of Miss Brackeen’s claim based on personal injuries allegedly resulting from the negligence of Roberta L. Milner; affiant at no time informed Mr. Vail or Miss Brackeen that Allstate Insurance Company would accept a rescission or disaffirmance of the said release.” Attached to the affidavit was the draft for $450 issued by the Allstate Insurance Company and cashed by Judy Ann Brackeen. The statement in Wid-lic’s affidavit is not denied by the plaintiff.

It appears from the depositions in the record that Judy Ann Brackeen was 18 years old; that she lived with two girl friends in an apartment in Chicago; that her parents live in Ottawa, Illinois, and that she worked as a typist at the Chicago Motor Club where she earned $285 a month. She was involved in an automobile accident on April 4, 1963, at about 8:25 a. m., as she was walking across State Street on her way to work. She was walking east on Wacker Drive, and as she approached the southwest corner the traffic light had been green for quite a while and she decided to wait for the next light. There were five or six people around her when the light turned green again, and she looked to her left to see if any cars were coming. A couple of people on her left obstructed her view, but they stepped off the curb and she also stepped off. She had just taken a couple of steps when she was struck by defendant’s automobile ; she was knocked unconscious for a few seconds, and was later helped to the defendant’s car where she waited until the fire ambulance came and took her to Henrotin Hospital.

The plaintiff stated that the defendant told her she had just caught a glimpse of her tan coat, then felt a thud and thought she had a blowout; that she then looked back, saw the plaintiff on the street and stopped the car. The plaintiff further stated that she did not have the names of any witnesses to the accident and that she returned to work 17 days after the accident; that her doctor would not discharge her from the hospital and told her she should stay there for a longer period, but she signed her own release.

The plaintiff admitted signing the release in question and said that she saw John Bialek, the insurance adjuster, on Monday, Wednesday, Thursday and Friday, April 8, 10, 11 and 12, and on all of those occasions she was alone with him in her hospital room. She testified that Bialek, the agent, told her the insurance company would give her $300. She stated that after he had left on Wednesday afternoon, she telephoned her employer and told him all that had transpired in the two meetings with the agent; that her employer said her best bet would be to wait a little, after she was released from the hospital and then decide what she wanted to do. She testified that when the agent came to the hospital the next day he increased the offer to $450; that she telephoned her mother that evening to tell her about the interviews and her mother told her she “should wait.”

The plaintiff testified that when the agent returned to the hospital with a written release which he read to her and asked her to sign, she signed it. She stated that at the time she signed the release she felt a small headache; that since leaving the hospital she still had headaches and intended to go to a doctor to find out what caused them. Apparently her physical condition did not interfere with her work nor cause her any difficulty.

In an interrogatory propounded to the defendant, one Arnold R. Glickson was mentioned as a person who had knowledge of the case; in his deposition he stated that he did not see the accident and did not see the plaintiff until after she was lying on the street.

A deposition by Dr. Leo Pevsner was taken July 8, 1964, at which time he stated that on April 12, 1963, he had made a diagnosis of the plaintiff which disclosed cerebral concussion, laceration of the occipital scalp, contusion of the left chest wall, contusions of both legs, anterior tibial surfaces, compression fracture first, second lumbar vertebra, probable fracture of the 12th thoracic vertebra, and anemia. The doctor was referred to a letter sent him from Allstate Insurance Company, dated January 9, 1964, requiring certain answers to be filled in. One question was: “Was the patient in full control of her mental faculties and judgment, that is, judgment during the period of her hospital confinement?” To this question he answered “Yes.” He also had answered “Yes” to the question of whether or not the plaintiff was rational.

The plaintiff urges that the pleadings, depositions and affidavits on file raise several questions of fact. The purpose of a summary judgment is not to pass upon facts but to determine cases on questions of law where there are no material facts to he passed upon. The first question which must be considered by this court is whether or not the original release signed by the plaintiff was valid. It has been held that undue haste in securing a release from a person still suffering from an injury may cast suspicion on the validity of the release. Ruggles v. Selby, 25 Ill App2d 1, 165 NE2d 733. It is also the law that a release may be avoided for fraud or fraudulent representations made by the re-leasee or his agent and relied upon by the releasor to his injury. In 76 CJS, Release, § 27 subpar a, it is said:

“It has been said that there is no reason why a release should be invalidated for fraudulent representation, except for the same reasons for which any other written instrument would be. Thus, in order to entitle a releasor to avoid a release on the ground of fraud or of a false or fraudulent representation, he must show, in addition to the fact of a false representation, that such representation was made with knowledge of its falsity on the part of the party making it, or was recklessly uttered without regard to, or knowledge of, its truth, or would, by the exercise of ordinary diligence, have been known to be false; and it must also be shown that the releasor by acting on the fraud or false representation suffered damage or injury.” (Emphasis supplied.)

It is true that in the instant case the agent of the insurance company visited the plaintiff at the hospital very soon after the accident. This court does not approve such practice on the part of insurance agents, and many states have statutes requiring that a certain time elapse between the injury and the signing of the release. We have no such statute in Illinois.

While it is true, as pointed out in Clancy v. Pacenti, 15 Ill App2d 171, 145 NE2d 802, that where releases are obtained in cases involving personal injuries, the release should be carefully considered because mistakes are easily made and the consequences are more serious than in any other of the affairs of man. It points out also that the injury may be much more serious than was apparent at the time the release was signed.

In the instant case there is nothing in the record before this court to indicate that the plaintiff had not fully recovered from the injuries she received. The fact that she stated she had headaches cannot be seriously considered since no connection between the headaches and the injuries is before the court. Evidence to this fact could very easily have been obtained at the time of the contest of the petition for a summary judgment. Under those circumstances, there is nothing before the court which would show that the amount of money paid by the defendant to the plaintiff was inadequate, and consequently, the release could not be attacked on the ground of fraud.

It is true that the plaintiff in the case was young, but she had consulted with her mother and her employer as to signing the release. She disregarded their advice; she disregarded advice of her attending physician, left the hospital on her own account and went back to work, apparently with no difficulty resulting from the accident. The vague testimony about her headaches does not raise any material question of fact. The holding of the trial court that the release is valid is affirmed.

The plaintiff raises another point. The release was signed on April 12, 1968; the plaintiff received defendant’s check promptly and cashed it. On August 9, 1963, the plaintiff sent a notice to the defendant and Allstate Insurance Company of her disaffirmance of the release, together with a certified check for $450. It is uncontradicted in the record that upon receipt of the letter, which was an attempt at unilateral rescission of the release contract, the defendants, through their agent, contacted plaintiff’s attorney and stated that the Allstate Insurance Company considered the release valid, and that it refused to negotiate any further settlement of plaintiff’s claim. However, the certified check sent by plaintiff’s attorney to Allstate Insurance Company was not returned at that time, nor was it returned until July 20, 1964. We have been given no case which deals with this precise point; however, it is the law that a release is a contract, and consequently, the rescission of a release is governed by the rules prevailing in contract cases.

It would seem that it was the duty of the plaintiff, upon the defendant’s uncontradicted repudiation of the unilateral rescission of the contract, to have demanded the return of the certified check attached to the rescission. Having failed to do that, no advantage can be taken of the fact that the defendant did not promptly return the check, but did not cash it or use the proceeds in any way. The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ENGLISH, P. J. and DRUCKER, J., concur.


text:
    Louise Mackie, Plaintiff, v. Harvey C. Mackie, Defendant-Appellant, v. Marie June Carmon, Third-Party Defendant-Appellee.
    Gen. No. 50,676.
    First District, Fourth Division.
    June 9, 1967.
    Rafferty, Scheele & Mackin, of Chicago (A. G. Scheele, of counsel), for appellant.
    Crowley, Sprecher, Barrett & Karaba, of Chicago (Patrick F. Crowley, Robert A. Sprecher and William G. Webber, of counsel), for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

This appeal is taken from a judgment order of the Circuit Court of Cook County, giving permanent custody of a minor child, Carol Louise Mackie, to her grandmother, Marie June Carmon, and denying Harvey C. Mackie, father of the child, any rights of visitation.

Louise Mackie, a resident of Chicago, Illinois, filed a divorce action against her husband, Harvey C. Mackie, a resident of Washington, D. C., on September 4, 1962. Harvey C. Mackie, the defendant in the present case, was served by publication and did not then file an appearance. On December 6, 1962, the court, having jurisdiction of the parties and the subject matter, entered a default decree on the grounds of extreme and repeated cruelty and awarded the plaintiff, Louise Mackie, the custody of Carol Louise Mackie, the minor child of the parties. The court reserved jurisdiction with respect to alimony and child support.

On June 8, 1960, Louise Mackie and her daughter Carol (then eleven years of age) resided with Louise’s mother, Marie June Carmon (third-party defendant), and with Louise’s father, Lee Carmon, who died on December 30, 1963. Louise Mackie died on October 5, 1964. From June 8,1960, until Louise’s death, the defendant saw Carol only once, in an unexpected encounter in October 1961.

On December 21, 1964, the defendant commenced these custody proceedings by filing a petition in the Circuit Court of Cook County in the original divorce proceedings, to obtain custody of Carol. On January 15, 1965, the defendant filed a further petition alleging that Carol’s maternal grandmother, Marie June Carmon, had been made a third-party defendant in the proceedings at his petition and that she had been served with summons, and praying that she be required to answer the petition, and that the petition be set down for hearing on January 28, 1965. In response to the defendant’s petition, the trial court ordered that the two contestants for the custody of the minor child present themselves for depositions on January 26, and that a hearing he held on January 28, 1965. On January 28, the third-party defendant filed her answer to the defendant’s petition and prayed that the custody of Carol be awarded to her.

On January 29, the trial court ordered that the custody matter be referred to Cook County Department of Public Health to investigate the respective parties and their homes and to report back to the court in sixty days and that the hearing be continued to April 8, 1965. On the same day, the court ordered that the defendant be permitted to see Carol on the entire days of January 29 and 80, on the weekend of February 20, and on two nonconsecutive weekends in March. The defendant exercised his visitation rights on January 29 and 80 and again on the weekend of February 20. He next saw the child on March 20, 1965, when he picked her up and took her out of the jurisdiction of the State of Illinois, to Washington, D. C., without the knowledge or permission of the third-party defendant.

On March 23, the third-party defendant filed a petition praying that 1) the child be returned to the petitioner at Chicago; and 2) a rule to show cause be entered against the defendant to show cause why he should not be held in contempt of court. On the same day the trial court ordered the defendant to return the child to the third-party defendant immediately. On March 26 the defendant had not complied with the order of March 23, whereupon the third-party defendant prayed that the defendant show cause why he should not be adjudged in contempt. The court ordered defendant to appear on April 8, 1965, to show cause why he should not be adjudged guilty of contempt of court for having violated the court’s order of March 23. The defendant answered the third-party defendant’s petition on April 2, 1965, and answered the petition for a rule to show cause on April 7.

On April 8, the defendant failed to appear as ordered by the court on March 26, and the court ordered that a writ of attachment issue, directed to the Sheriff of Cook County, commanding him to produce the body of the defendant before the court. The hearing which had been set by the court for April 8 was held on that date. The defendant did not appear, nor was the child returned at that time.

One witness, Dr. Nils J. Tunestan, a pediatrician, testified on behalf of the third-party defendant at the April 8 hearing. He stated that after the death of the child’s mother the child was very upset and he prescribed tranquilizers for her. He added that it would be normal “to a certain extent” for her to be upset at that time. The court then continued the hearing so that the defendant might appear. The hearing was resumed on April 15, although the defendant again did not appear. On this date, seven witnesses appeared; three on behalf of the defendant, and four additional witnesses on behalf of the third-party defendant.

Othelia Henning, the defendant’s mother, stated that she had gone to Washington when her husband died in December 1964, where she shared an apartment with her son; that Carol seemed very happy in this apartment, and that she took care of the child when the defendant was working during the day.

Jerry Sagat, a friend of the defendant, stated that he was with the defendant when he picked Carol up on February 20, 1965; that there was some confusion about getting her to go with them, and the defendant said they would leave and return in an hour to pick her up. The defendant and Carol spent the day at Sagat’s home with his family. Sagat testified that when they left they were on their way back to Mrs. Carmon’s home.

Judith Martin, an investigator for the Cook County Department of Public Aid, whose services had been requested by the trial court by its order of January 29,1965, testified that she investigated the third-party defendant’s home and “the home was a suitable place for a child of this age and the child would have a room of her own.”

The third-party defendant, Marie June Carmon, testified on her own behalf that she had maintained a home for her daughter, Louise, until her death, and her granddaughter, Carol, from June 8, 1960, for almost five years when the defendant had taken the child away. During those five years the defendant had contributed $250 in two payments of $150 in 1961 or 1962 and $100 in September of 1964. The defendant had sent Carol six or seven dresses and these were the only gifts she received from her father. The defendant lived in a basement apartment from 1959 until early 1965. Mrs. Carmon had been present when the defendant had struck her daughter on two occasions and “on February 15, 1959, when I was sitting with the baby, he hit me with a wine jug . . . when Mr. Mackie was drinking wine.”

Anna Caestecker and Julian Caestecker testified as to Carol’s pleading not to be made to leave with the defendant on the second occasion when defendant appeared for visitation.

Virginia Harris, a social case worker, gave a deposition for evidentiary purposes in Washington, D. C., and her report was made a part of the record of the deposition. She testified that the child seemed well adjusted in the home with her father and her paternal grandmother, and that the home had possibilities of making Carol a very happy child.

At the conclusion of the hearing on April 22, 1965, the trial court ordered that the third-party defendant be granted permanent care, custody, control and education of the minor child; that the defendant return the child forthwith and shall have no right of visitation until further order of the court, and reserving jurisdiction to protect the child’s best interest. The defendant has appealed from that order.

After the order was entered in the Circuit Court a petition was filed in the Chancery Court in Prince Georges County, Maryland. The court, giving full faith and credit to the order of the Circuit Court of Cook County, ordered the defendant to turn the custody of the child over to the third-party defendant, which he did. At the present time the child is in the custody of Marie June Carmon, the third-party defendant. The defendant cites and relies upon the Illinois Revised Statutes, chapter 3, section 132.

The defendant argues that the court in rendering its judgment said that he had taken the child’s welfare and best interests as the primary consideration, and that the third-party defendant had taken the position of mother to the child since 1960. Defendant contends that this, without more, is not sufficient “good reason” to award permanent custody to the third-party defendant. In Illinois it has been repeatedly held that the polestar for determining the custody of a child is the best interest and welfare of that child.

There is no contradiction that Marie June Carmon, the child’s grandmother, had acted as a mother to the child. In People v. Weeks, 228 Ill App 262, the court awarded custody to the aunt of a minor child rather than to the father. After considering the several approaches Illinois courts have taken to the subject, the court said:

“. . . notwithstanding the seemingly rigorous expression of the law as it is set forth in the statute, the court may, in determining the right of a parent to the custody of his child, give greater heed to the welfare of the child than to the natural right of the parent; in other words, although the parent is morally and pecuniarily fit, if it appears reasonably certain, considering all the circumstances, that it would be better for the welfare of the child that it should remain with a third person, the parent’s natural rights must give way.”

The defendant cites and quotes from Cormack v. Marshall, 211 Ill 519, 523, 71 NE 1077:

“We regard the rights of the parent as superior to those of any other person, when that parent is a fit person to have the custody of children and is so circumstanced that he can provide the necessaries of life and administer to the requirements of such a charge.”

However, on page 527, the court said:

“The parent has the superior right to the child, but the superior right of the parent must yield to the best interest of the child. There is a recognition of both the rights, although the parent has the superior right, which is a true statement of an abstract proposition. He only has that superior right when it accords with the best interest of the child.”

In Giacopelli v. Florence Crittenton Home, 16 Ill2d 556, 158 NE2d 613, the court discussed fully the principles which govern the question of child custody in Illinois and said: “The parents’ natural rights must give way to the welfare and best interest of the child. Sullivan v. People ex rel. Heeney, 224 Ill 468.” In that case it was also pointed out that

“Finally, the trial judge had the best opportunity to observe the parties and their conduct and demean- or while testifying. This is a vital factor in evaluating the correctness of his determination. We should not disturb his findings unless they are palpably against the weight of the evidence. Upon our review, we cannot disagree with his findings. To remand this child to his natural parents would appear to constitute a tragic and unfortunate event in his young life.”

Also see People ex rel. Hermann v. Jenkins, 34 Ill App2d 255, 180 NE2d 359. In Maupin v. Maupin, 339 Ill App 484, 90 NE2d 234, after a divorce, the father was given custody of two minor children; the mother then sought to have the decree modified so she might obtain custody of the children. In its refusal to reverse the court said:

“It should be plain, in any case, that the mere fact there has been a change in conditions is not sufficient in itself to modify a decree, unless those changed conditions affect the welfare of the child.”

In the present case, although at the time defendant’s petition was filed, custody of Carol Mackie was in no one, still the court had the right to determine which party would best serve the welfare of the child.

After a consideration of the above cases, the question to be determined is what action of the court would be in the best interest of Carol Mackie. Although the court found the defendant to be in contempt, he was not found to be an unfit parent, although it would seem that the court considered him to be such when it denied visitation privileges in its order. This denial has no foundation when the facts of the case are examined.

At the conclusion of all the evidence the trial court said, among other things:

“. . . I feel that at this particular time . . . because of the death of the mother and the trauma this child will be going through at this particular time definitely will have an effect on the child, at this particular time and it’s because of these things I think at this time it will be in the best interest of the child to bring her back into an environment that she is used to and has lived in for five or six years and also for the great loss that this child has suffered in this immediate area and I feel that because of these conditions I would be remiss if I took her away from her present environment.
“I see no fault with the father. I find no evidence that he is not conducting himself in a manner that would permit him to be a loving father but I feel, at this time, because of the death of the mother, not too long a time ago, I feel it would have a traumatic effect to take the child away from her accustomed surroundings and the kind of care that she is getting and it is for that reason that I hesitate to permit the child to live with the father at this time, although it may take place at a later date.
“I strongly recommend and suggest that this father not be prohibited from seeing the child and reasonable rights of visitation are urged and, if there is any interference on the part of the grandmother when the father tries to have the child with him periodically so there can be the necessary readjustment, that would be sufficient grounds to take the child away from her. This father has a right to this child and a right to visitation. The child is to get to know her father and if there is any evidence of trying to influence the child to act against the father then I certainly would entertain a motion at a future date to see that other steps were taken to place the child in circumstances where she can live a natural life as best we can give it to her and I think some arrangement should be made between counsel to see that this father has the child with him through the summer and that through calls on the telephone and through correspondence with the father and to do everything possible in order to create a harmonious relationship between the father and this child. If the grandmother influences the child to act against the father or does not permit him to see his child and is not creating a harmonious feeling between the father and the child then we are doing a great disservice to the child and that should be the primary concern of everybody here.
“We must also take into consideration that Mrs. Carmon is not a young person and I want to be assured that in case anything happens to her this father is not going to be a stranger to this child.”

With these statements of the trial court we are in substantial accord. Upon a careful reading of the briefs and the record in the case, we hold that the judgment order giving permanent custody of Carol to Marie June Carmon and denying Harvey C. Mackie the right of visitation, should be reversed and remanded with instructions to the court to give temporary care, custody, control and education of Carol Louise Mackie to Marie June Carmon, the third-party defendant.

The order of the trial court should in addition set out that there should be reasonable visitation times allotted to the father of the child, and that the court should retain jurisdiction of the case.

Reversed and remanded with directions.

ENGLISH, P. J. and DRUCKER, J., concur.

       Ill Rev Stats 1963, c 3, § 132. Parental Right to Custody.) When both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education; and, if one parent is dead and the surviving parent is competent to transact his own business and is a fit person, he is similarly entitled. The parents have equal powers, rights and duties concerning the minor. If the parents live apart, the court for good reason may award the custody and education of the minor to either parent or to some other person.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ennis Thomas, Jr., Defendant-Appellant.
    Gen. No. 50,893.
    First District, Fourth Division.
    June 9, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn, Marshall J. Hartman, Paul Bradley and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    William G. Clark, Attorney General, of Springfield (Daniel P. Ward, State’s Attorney of Cook County, Elmer C. Kissane, Chief of Criminal Appeals and Ronald Butler, Assistant State’s Attorney, of counsel), for ap-pellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

After a bench trial the defendant (Ennis Thomas, Jr.) was convicted of Indecent Liberties with a Child and was sentenced to the penitentiary for not less than ten nor more than twenty years.

Contentions on Appeal.

1. Defendant was not proven guilty beyond a reasonable doubt.

2. Defendant did not receive a fair trial, in that (a) illegally seized evidence was introduced at trial; (b) statements made by the defendant after his arrest but before being afforded an opportunity to confer with counsel were erroneously admitted into evidence; (c) a photograph was introduced into evidence for which a proper foundation was not laid; and (d) his cross-examination of a prosecution witness was restricted.

On February 20, 1965, at approximately 4:00 p. m. Mrs. Dorothy Thomas (no relation to the defendant) notified the police that her two-year-old daughter, Shir-leen, was missing from in front of a building located at 2833 West Madison in Chicago. A search was conducted until approximately 9:30 p. m., when she was discovered in a corridor on the third floor of the Alto Hotel, located at 2847 West Madison, by a resident of the hotel. Upon examination by her mother, Shirleen was discovered to have been bleeding from the vaginal area. The girl was subsequently examined at Cook County Hospital by Dr. Robert Bass, who confirmed the bleeding from the vagina and testified that there was a stretching of the vagina, small lacerations and tears in the lining of the vagina and a tear in the perineum (which he described as the skin outside the vagina leading to the rectum). He also testified that the injury was caused by the entry of a blunt object into the vagina.

Titus Daniels testified that he was inside his record shop at 2837 West Madison (located between the building from which Shirleen Thomas disappeared and the Alto Hotel); that at approximately 4:00 p. m. he saw the defendant and Shirleen (both of whom he had seen on prior occasions, but not together) walking down the street; and that defendant was holding the girl’s hand. Daniels further testified that he notified Shirleen’s mother and also identified the defendant for the police.

Watson Johnson testified that he lived in a third-floor room of the Alto Hotel; that he returned to the hotel from work at approximately 9:30 p. m. and, in response to his inquiry as to why the police were in the neighborhood, was informed that they were searching for a little girl. Johnson further testified that he went to his room on the third floor of the hotel (the same floor on which the defendant lived) and discovered the girl in the corridor ; that he informed the hotel management, the girl was brought down to the desk and the police were notified.

According to the testimony of the police, defendant was arrested at approximately 10:00 p. m. in front of a billiard parlor located at 2840 West Madison; he was wearing a coat on which there was a substance later identified by the police crime laboratory as blood; defendant was searched and a key was discovered (and seized) to room 316 of the Alto Hotel, where defendant resided. The officers then took defendant to the hotel and entered his room. Photographs were taken of the room by the police. They also seized towels, a blanket, sheets and a bedspread from the room and put them in a plastic bag. The police forced him to remove some articles of clothing from his person which they also took. A police chemist, Joseph Price, testified that his tests revealed that there was blood on the blanket and bedspread. He did not state whether or not there was blood on the sheets. However, one of the police officers who searched the defendant’s room at the hotel stated that on the sheets was a substance appearing to be blood.

The prosecution adduced further testimony of the police that, at the police station after defendant’s arrest and while Titus Daniels was giving the police a statement as to what he had seen, defendant interrupted and stated: “I must be a sex maniac.” There was additional testimony that at the hotel during the search of defendant’s room, in response to the question of a police officer as to why he molested the girl, defendant stated: “I don’t know why I did it, my head hurts, please help me.”

At the trial defendant (who was over seventeen years of age) denied that he raped or sexually molested Shir-leen Thomas, and he also denied even seeing the girl on the date in question. Defendant offered the alibi that he was in a billiard parlor from about 1:30 until 3:00 p. m. on that date, went to a cousin’s house until 4:00 p. m. and then returned to the Alto Hotel to sleep for two hours; and that upon awakening he went to the home of another cousin where he remained until 9:00 p. m. No other testimony was adduced in support of that alibi.

Opinion

1. Defendant first contends that he was not proven guilty beyond a reasonable doubt. The prosecution adduced evidence that the defendant was seen leading Shirleen Thomas down the street shortly after she was reported as missing; the girl was found on the third floor of the Alto Hotel, the same floor on which defendant resided; the girl was subsequently discovered to have been bleeding profusely from the vaginal area; blood was discovered on defendant’s coat and also on a blanket and bedspread taken from his room; and defendant stated to a policeman in response to a question as to why he molested the girl: “I don’t know why I did it, my head hurts, please help me.” While defendant offered an alibi, which was not substantiated by other testimony, his story obviously was not believed by the trial judge. It is undisputed that in a bench trial the credibility of the witnesses, and the inferences to be drawn therefrom, are for the trial judge to determine. In the instant case we believe that the evidence adduced by the prosecution and believed by the trial judge is sufficient to establish the defendant’s guilt.

2. Defendant next contends that he did not receive a fair trial and argues principally that the sheets, blanket and bedspread taken from his room at the Alto Hotel were illegally seized and therefore, over his objections, the State’s witnesses should not have referred to the aforesaid articles nor should they have been admitted into evidence. The prosecution contends that (a) defendant’s motion to suppress was not timely; (b) no written motion was ever filed; and (c) the error was not sufficiently prejudicial as to warrant a new trial.

Section 114-12 of the Illinois Criminal Code (Ill Rev Stats 1965, c 38, § 114-12) sets forth the procedure regarding motions to suppress illegally seized evidence. It provides in relevant part that:

(b) The motion shall be in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were unlawful shall be on the defendant. If the motion is granted the property shall be restored, unless otherwise subject to lawful detention, and it shall not be admissible in evidence against the movant at any trial.
(c) The motion shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion.

Defense counsel’s motion to suppress (and the basis therefor) was orally made during the testimony of Detective John Serafini, one of the policemen who searched the defendant’s hotel room, as the detective was referring in his testimony to the “bloody sheets and bedspread” found in the room. The prosecutor asserted that the State would not waive the requirement that the motion be in writing, after which defense counsel informed the trial judge that until this point of the trial the defendant had no knowledge concerning the seizure of the sheets and bedspread. The prosecutor then argued to the court that there is no indication that an opportunity to file the motion was unavailable prior to trial and that the search was conducted four months prior to trial. The defendant’s motion to suppress, was denied. (At no point during this colloquy did the trial judge offer defense counsel an opportunity to place his motion in writing. No hearing was ever held on the merits of the motion to suppress.) At the request of defense counsel a hearing was held to determine whether defendant possibly could have had knowledge that the articles were taken from the hotel room. Defendant was the sole witness at that hearing and, according to his un-contradicted testimony, he was kept out in the hall during the entire search and was wholly unaware that articles were taken by the police other than the articles of clothing which they forced him to remove.

From the evidence adduced at the aforesaid hearing we cannot say that there was an opportunity to file the motion to suppress prior to trial or that defendant was aware of the grounds for the motion. Therefore defendant’s motion to suppress at this point in the trial, when reference was first made to the articles, was timely. While the statute states that “the motion shall be in writing,” we believe that under circumstances such as appear in the instant case — where a timely motion to suppress is made during the course of the trial — it was not intended to require, nor is any useful purpose served in requiring, a trial judge to recess the trial to allow defense counsel to prepare in writing the substance of his oral motion to suppress. Where an oral motion to suppress is first made during the course of the trial, and is timely, we believe that it is discretionary with the trial judge as to whether counsel shall be required to reduce the motion to writing. In the instant case the trial judge did not require defense counsel to file a written motion. Nor did the trial judge indicate that the motion to suppress was in any way unclear or lacking in some substantive manner.

Therefore, defendant’s motion to suppress was properly before the court and a formal hearing should have been held thereon. If the articles in question were illegally seized, the evidence adduced at the trial with respect thereto was substantially prejudicial to the defendant and deprived him of a fair trial.

Defendant also argues that various statements which he allegedly made to the police constituted confessions and therefore it was incumbent upon the court to conduct a hearing to determine the voluntariness thereof. The prosecution argues that these statements were admissions, not confessions, and as such do not require proof of their voluntary origin. The distinction between a confession and an admission was set forth in People v. Stanton, 161 Ill2d 459, 466, 158 NE2d 47:

A confession is a voluntary acknowledgment of guilt after the perpetration of an offense, and it does not embrace mere statements or declarations of independent facts from which guilt may be inferred, while an admission is any statement or conduct from which guilt of the crime may be inferred but from which guilt does not necessarily follow.

Alleged statements by the defendant were that he was a sex maniac; “Help me, help me, I don’t know why I did it, I must be huts, help me” in response to Detective Serafim’s question of “Ennis, what happened here tonight?”; and “Please help me, please help me” in response to the question “Do you want to tell us anything about tonight?” These alleged statements are not acknowledgments of guilt and therefore cannot be considered confessions. Defendant also refers to another statement allegedly made by him and testified to by Detective Serafini. However, no objection was made thereto and the issue cannot be raised for the first time on appeal. People v. Jones, 31 Ill2d 42, 198 NE2d 821. We find no merit in defendant’s contention.

Defendant further argues that an alleged photograph of the third-floor corridor of the Alto Hotel was erroneously admitted into evidence because a proper foundation therefor was not laid. In Brennan v. Leshyn, 51 Ill App2d 132, 139, 201 NE2d 167, the court set forth the necessary foundation for the introduction of a photograph :

In order to have a photograph admitted in evidence it is necessary that the photograph be identified by a witness as a portrayal of certain facts relevant to the issue and verified by such witness on personal knowledge as a correct representation of the facts. The witness need not be the photographer, nor need he know anything of the time or condition of the taking, but he must have personal knowledge of the scene or object in question and testify that it is correctly portrayed by the photograph.

The photograph in the instant case was introduced into evidence on the basis of the testimony of Watson Johnson, who lived in a room on the third floor of the hotel. Among other testimony, he was asked the following question and gave the following answer:

Mr. Nellis [prosecutor]: Is this a faithful and accurate picture of the third floor of the Alto Hotel ?
The witness: Yes, sir.

That testimony constitutes a sufficient foundation for the introduction of the photograph into evidence. Other testimony, elicited on cross-examination, which defendant contends impeaches the witness’ positive identification of the photograph, would not affect the competency of the testimony. It is within the discretion of the trial judge whether to admit the photograph into evidence. We find that the trial judge properly exercised his discretion.

Defendant also contends that his cross-examination of Officer James Lewis was improperly restricted. Defendant argues that in restricting the cross-examination the court refused to allow him to thoroughly explore procedures used by police officers to preserve evidence taken from the defendant’s room and from his person. A review of the record on appeal reveals that defense counsel was allowed extensive latitude in his cross-examination on this issue. Therefore, we find no merit in that contention.

Holding on Appeal

We find that the defendant was proven guilty beyond a reasonable doubt. We also find that the court should have conducted a hearing on defendant’s motion to suppress. Therefore this case is remanded with directions to the triál court to vacate the judgment of conviction and conduct a hearing in accordance with this opinion. If the motion to suppress evidence is allowed, the trial court shall grant the defendant a new trial. If the motion to suppress evidence is denied, the trial court shall enter a new judgment of conviction.

Remanded with directions.

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

       The offense of “indecent liberties with a child” is defined in section 11-4 of the Criminal Code of 1961 (Ill Rev Stats 1963, c 38, § 11-4), which provides in relevant part that:

        (a) Any person of the age of 17 years and upwards who performs or submits to any of the following acts with a child under the age of 16 commits indecent liberties with a child:
      (1) Any act of sexual intercourse; or
      (2) Any act of deviate sexual conduct; or
      (3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both.
      Defendant was indicted for the offense of rape and indecent liberties with a child. After the prosecution had presented all of its evidence, the charge of rape was nolle prossed on the prosecution’s motion.