author: Mr. JUSTICE LEIGHTON

text:
    Raymond J. Dendor, Plaintiff-Appellee, v. The Board of Fire and Police Commissioners of the Village of Northbrook et al., Defendants-Appellants.
    (No. 55973;
    First District (2nd Division)
    April 10, 1973.

      Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago, (Frederic O. Floberg, of counsel,) for appellants.
    Gordon & Brustin, Ltd., of Chicago, (Robert E. Gordon, of counsel,) for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This is the case of a village fireman who was discharged because he made derogatory statements about his superior and about the volunteer force of the village fire department. Aggrieved by this action, the fireman, appellee Raymond J. Dendor, filed complaints against appellants Board of Fire and Police Commissioners of the Village of Northbrook, Lowell Mueller and Kenneth Truelson, for administrative review of the Board’s decision. After hearing the parties and reviewing the Board’s proceedings, the trial court ordered that Dendor * * be reinstated in the Village of Northbrook Fire Department instanter, and in the alternative reversed and remanded [sic].” Appellants present two issues, one procedural and the other substantive. A summary of the facts will disclose the origin and nature of these issues.

I.

On January 24, 1970, Dendor was a property owner, resident and fireman in the fire department of the Village of Northbrook, Illinois. At about 11:00 A.M. that day, he went to the Village Hall where the village trustees were holding a public meeting. Officials of the village knew that Dendor had expressed dissatisfaction with the leadership of the fire department. He was recognized and said to the trustees, “Right now, you [the president and the trustees] are shedding your responsibility to the Village by not giving us adequate fire protection.” Referring to his superior, the fire marshal, Dendor said, “If you allow him to stay here longer, there will be incredible damage. The chief just can’t handle a regular fire department. He doesn’t know how.” Then, referring to the volunteer force of the department, Dendor said, “[I]f the Board of Trustees continues with the volunteer force, it will end in disaster.”

Shortly after this meeting, February 3, 1970, Dendor was suspended without pay, and charges calling for his dismissal from the fire department were filed with the Board of Fire and Police Commissioners of the Village of Northbrook at its main office, Village Hall, 1225 Cedar Lane, Northbrook, Illinois. In proceedings that followed, the Board received exhibits and heard the fire marshal, the village manager, the director of public works, two senior members of the fire department, Dendor and three witnesses called by him: one the chief of a fire department in which he had served and two Village of Northbrook firemen. It took the case under advisement. On March 7, 1970, the Board made its finding and decision that Dendor s conduct in making derogatory statements concerning the competency of the fire marshal, his lawful superior, and respecting the volunteer fire department of the village, required that he be discharged from his position as a fireman and as a member of the fire department of the village.

Thirty days later, Dendor, invoking the Administrative Review Act, filed his complaint to review the Board’s decision. That act requires that review of an administrative decision “* * * be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” (Ill. Rev. Stat. 1969, ch. 110, par. 267.) The act also provides that “[i]n any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.” (Ill. Rev. Stat. 1969, ch. 110, par. 271.) As to summons, “service on the administrative agency shall be made by the clerk of the court by sending a copy of the summons addressed to the agency at its main office in the State.” A sentence in the paragraph governing service of summons provides that “[t]he plaintiff, shall, by affidavit filed with the complaint, designate the last known address of each defendant upon whom service shall be made.” Ill. Rev. Stat. 1969, ch. 110, par. 269.

Although the fire marshal of the Village of Northbrook was the complainant before the Board, Dendor did not name him a defendant in the complaint. Dendor did not file the affidavit required by Ill. Rev. Stat. 1969, ch. 110, par. 269. The clerk did not serve the Board with summons by sending it a copy addressed to its main office. Instead, a copy of a summons in administrative review was addressed to “Thomas C. Cravens, Jr., 200 S. Michigan Ave.” The record discloses that in the proceedings in question, Thomas C. Cravens, Jr. was chairman of the Village of Northbrook Board of Fire and Police Commissioners. However, “200 S. Michigan Ave.” was neither his domicile nor his place of business.

On May 12, 1970, in a special appearance, Board led a motion in which it alleged that summons had not been served on it as required by the Administrative Review Act; that Thomas C. Cravens, Jr., on whom summons was served, did not have an address where he was served; that in his complaint, Dendor did not make defendants all persons who were parties to the record being reviewed; nor, as required by the act, did he file an affidavit designating the last known address of each defendant on whom service of summons was to be made. Therefore, Board prayed that because of these failures to comply with the Administrative Review Act, Dendor s complaint should be dismissed. The trial court did not rule; it took the motion with the case and gave Board leave to file its answer within 28 days. On August 3, 1970, Board filed its answer which, as required by the act, included the entire record of the proceedings that led to Dendor’s discharge.

Then on November 23, 1970 the trial court denied Board’s motion and granted Dendor leave to file an amended complaint joining additional parties with alias summons to issue. Board was served with summons at its main office; and in the amended complaint, Dendor added the fire marshal as a defendant. The marshal, however, filed a motion to dismiss in which he alleged that he no longer held that office in the Village of Northbrook. Dendor then asked and the court granted him leave to file a second amended complaint that added the acting fire marshal as a defendant. Thus, long after 35 days from the date Board’s decision was served on Dendor, summons were served on the Board and the necessary parties defendants were before the court.

The acting fire marshal, instead of answering Dendor’s second amended complaint, filed a motion which in substance was the first motion to dismiss which Board had filed. On March 9, 1971, the trial court denied the motion and allowed Board’s answer to stand as the answer of the acting fire marshal. Then, having reviewed the record, heard arguments of counsel and considered memoranda of law filed by the parties, the trial court reversed the Board’s decision and ordered that Dendor be reinstated as a fireman in the Village of Northbrook fire department.

II.

The procedural issue, therefore, is whether the trial court erred in denying the motions to dismiss Dendor’s complaints. Appellants contend that in this action for judicial review of his discharge, Dendor did not comply with the Administrative Review Act: within 35 days of its decision, summons were not served on the Board; the affidavit required by the act was not filed; all defendants were not made parties. Therefore, the trial court erred in not dismissing Dendor’s complaints. We do not agree. It is provided in the Administrative Review Act that “[t]he form of the summons and the issuance of alias and pluries writs shall be according to rules of the Supreme Court.” A rule of the Supreme Court requires that “[o]n request of any party, the clerk shall issue successive alias summonses, regardless of the disposition of any summons or alias summons previously issued.” Supreme Court Rule 103(a)(e), Ill. Rev. Stat. 1989, ch. 110A, par. 103(a)(e). The trial court had the authority to issue alias summonses even after expiration of the 35 days for commencing the action for review. (Compare Bellevue Realty Co. v. County Board of School Trustees, 18 Ill.App.2d 295, 152 N.E.2d 203.) In addition, the trial court had the authority to allow amendments to be filed by Dendor “[a]t any time before final judgment 6 * ° on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant * * (Ill. Rev. Stat. 1969, ch. 110, par. 46(1); see Ill. Rev. Stat. 1969, ch. 110, par. 277.) These statutes did not require that the filing of the affidavit and the joinder of necessary parties defendant be done within the 35 day limitation for filing of the complaint. (Sokolis v. Zoning Board of Appeals of Springfield, 21 Ill.App.2d 178, 157 N.E.2d 427.) Compliance with the 35 days time requirement of the Administrative Review Act is determined by the filing of the complaint. (Hailey v. County Board of Schools Trustees, 21 Ill.App.2d 105, 157 N.E.2d 570.) This being so, Dendor did not fail to comply with the Administrative Review Act. Therefore, denial of appellants’ motions to dismiss was not error.

III.

The substantive issue is whether the trial court erred in reversing the Board’s decision to fire Dendor. Resolution of this issue depends on the Board’s reasons, supported by substantial evidence. (Fantozzi v. Board of Fire & Police Commrs of Villa Park, 35 Ill.App.2d 248, 182 N.E.2d 577.) The authority given the Board to remove Dendor for cause was not an arbitrary power; it was as authority to be exercised on just and reasonable grounds. (Fantozzi v. Board of Fire & Police Commrs of Villa Park, 27 Ill.2d 357, 189 N.E.2d 275; Ill. Rev. Stat. 1969, ch. 24, par. 10—2.1—17.) Therefore, we look at the Board’s decision. Its reasons are stated in the last of four paragraphs.

“4. That [Dendor’s] conduct during the approximately ten and one-half months he has been a member of the Fire Department of the Village of Northbrook, Illinois, and particularly his derogatory statements respecting the competency of the Fire Marshal of the Village of Northbrook, who is his lawful superior, and respecting the competency of the Volunteer Fire Department of the Village of Northbrook, which derogatory statements were made both at a meeting of the Board of Trustees of the VHlage of Northbrook, Illinois which was open to the public, including the press, and also at another time or times in the presence of other members of the Fire Department, have had such an adverse and undesirable effect that his continuance in the service of the Fire Department of the ViHage of Northbrook would be seriously detrimental to the disciphne, morale and efficiency of the Fire Department of the Village of Northbrook, Illinois.”

It is settled that in reaching this decision, the Board should have made findings of fact. (Rogenski v. Board of Fire and Police Comm’rs of Moline, 6 Ill.App.3d 604, 285 N.E.2d 230; Sudduth v. Board of Fire & Police Commrs 48 Ill.App.2d 194, 198 N.E.2d 705.) Findings of fact are determinations, from the evidence of a case, either by a court or an administrative agency, concerning the facts averred by one party and denied by another. (See C.I.T. Corp. v. Elliott (1945), 66 Idaho 384, 159 P.2d 891; Magner v. Flemming (D.C. N.Y. 1959), 172 F.Supp. 299, 302.) From this definition, it is obvious that the Board did not make findings of fact. For example, it did not find when it was that Dendor “* * * at another time or times in the presence of other members of the Fire Department * * *” made derogatory statements concerning his superior and the volunteer force of the village fire department. It did not find how, in what way and in what manner Dendor s derogatory statements had an adverse and undesirable effect on the village fire department.

More importantly, the Board did not find that the derogatory statements were false and knowingly and recklessly made by Dendor. (See Pickering v. Board of Education of Twp. H.S. Dist. 250 (1968), 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731; Note, The First Amendment and Public Employees: Times Marches On, 57 Geo. L. J. 134, 149 (1968-1969).) It did not find, and describe by such finding, the kind of harm inflicted on the village fire department by Dendor’s derogatory statements. Nor did the Board find that Dendor was insubordinate or that he violated any rule or policy of the village. Therefore, it appears that the Board discharged Dendor only because, at a public meeting and in the presence of fellow firemen, he made derogatory statements concerning his superior and the viUage fire volunteers. The question we must decide is whether under these circumstances the discharge of a public employee is consistent with the First Amendment to the Constitution of the United States.

We begin with the premise that although a public employee does not have a constitutional right to such employment, he cannot be barred or removed from that employment arbitrarily or in disregard of his constitutional rights. (Fort v. Civil Service Com. of County of Alameda (1984), 38 Cal.Rptr. 625, 392 P.2d 385.) It can be said with equal certainty that acceptance of public employment is not an abandonment of constitutionally protected rights. (Belshaw v. City of Berkeley (1966), 246 Cal.App.2d 493, 54 Cal. Rptr. 727.) With regard to the right of free speech, a public employee may speak freely, as long as he does not impair the administration of the public service in which he is engaged. City of St. Petersburg, et al. v. Pfeiffer (Fla. 1951), 52 So.2d 796.

Of course, a governmental unit like the Village of Northbrook can regulate the speech of its employees either by a rule or, as in this case, by a ruling that affects the employment status. However, when it does and we are asked to determine the validity of the rule or ruling, we weigh the impairment of free speech against both the governmental interest and the substantiality of tire threat which the forbidden speech represents. (See Los Angeles Teachers Union v. Los Angeles City Board of Education (1969), 78 Cal.Rptr. 723, 455 P.2d 827.) In this process, the governmental unit has the burden of proving that the forbidden speech rendered the speaker unfit for public service, or so adversely affected the public service involved that it justifies impairment of free speech. (See Brukiewa v. Police Comm'r of Baltimore (1970), 257 Md. 36, 263 A.2d 210; Klein v. Civil Service Com. of Cedar Rapids (1967), 260 Iowa 1147, 152 N.W.2d 195.) These constitutional principles are nurtured by the policy that the public has an interest in the free speech rights of its employees. See Kiiskila v. Nichols (7th cir. 1970), 433 F.2d 745, 748-749.

In City of St. Petersburg v. Pfeiffer (Fla. 1951), 52 So.2d 796, a case we have cited, a fireman was given a 90-day suspension because he, Dendor, made derogatory statements concerning the operation and efficiency of the city fire department and of his fire chiefs ability to run the department. It was charged that the fireman made slanderous remarks about the fire chief. It was said that in the presence of subordinates, the fireman accused the chief of being incompetent and inefficient. In reviewing a judgment that ordered the firemans reinstatement, the Supreme Court of Florida held that “[t]he charge was insufficient to predicate jurisdiction for suspension or removal. The derogatory statement was an expression of Pfeiffer’s low opinion of his chiefs talents. We approach danger when we allow an employee to be disciplined for criticizing or voicing a want of regard for his superior’s abilities. * * * An employee may express himself freely so long as he does not impair the administration of the service in which he is engaged.” (52 So.2d 796.) We reach the same conclusion in this case. Therefore, the judgment reversing Dendor’s discharge is affirmed.

Affirmed.

STAMOS, P. J., and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Evelyn Bers, Plaintiff-Appellant, v. Chicago Health Clubs, Inc., Defendant-Appellee.
    (No. 57244;
    First District (2nd Division)
    April 10, 1973.
    Jerome Feldman, Richard Allan Halprin and Glenn E. Gutsche, all of Chicago, for appellant.
    Leo J. Doyle, Jr., and Leo M. Tarpey, Jr., both of Chicago, for appellee.
   PER CURIAM.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Holland, Defendant-Appellant.
    (No. 56085;
    First District (3rd Division)
    April 12, 1973.
    Gerald W. Getty, Public Defender, of Chicago, (James J. Doherty and Shelvin Singer, Assistant Public Defenders, of counsel,) for appellant.

      Edward V. Hanrahan, 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:

The defendant, Richard Holland, was charged by a three count indictment with murder (Ill. Rev. Stat. 1969, ch. 38, par. 9—1) and involuntary manslaughter (Ill. Rev. Stat. 1969, ch. 38, par. 9—3). At a bench trial in the circuit court of Cook County, the court found defendant guilty of involuntary manslaughter and sentenced him to a term of two to six years in the penitentiary. The defendant appeals.

The defendant raises three issues for our consideration. (1) He contends that the prosecution failed to prove the existence of a criminal agency which caused the death of the deceased. (2) He contends that the prosecution did not prove him guilty beyond a reasonable doubt. (3) He contends that the trial court erred in admitting evidence of his prior misconduct and that the admission of such evidence was prejudicial to his right to a fair- trial.

We affirm.

Deceased, Alison Neeley, was the step-daughter of the defendant, Richard Holland. Mrs. Holland also had two other children whose father was the defendant. At the time of Alison’s death, she was two years old. The two other children were younger than Alison. The five people lived together in a single family residence at 7114 South Carpenter Street in Chicago. The defendant and his wife, the complaining witness in this case, had been married about five months previous to Alison’s death.

Mrs. Holland testified that on February 24, 1970, the three children were at home taking their afternoon nap when she and her husband had a quarrel. He hit her, and she ran out of the house and went to her girl friend’s residence a few houses away on Carpenter Street. She arrived at her friend’s house at about 1:30 P.M. About 20 to 25 minutes later, the defendant came over to where his wife was, but she refused to talk to him directly, and they exchanged words through her friend who served as intermediary. After a brief conversation, Mrs. Holland told her husband to go home because the children were alone, and he left. Mrs. Holland watched the defendant through a window and saw him go into their house.

Mrs. Holland further testified that a short time after her husband’s visit she received a telephone call from him at her friend’s house. He was calling from a nearby tavern, because there was no telephone at their residence, He told her that someone had broken into the house, and all the children were unconscious. Mrs. Holland maintained that she saw her husband leave the house before she received the call.

Mrs. Holland returned to her house, and the police, who had arrived earlier in response to her husband’s call, let her in. She found Alison, the deceased, in bed in her bedroom but was unable to awaken her. She noticed a small amount of blood coming from Alison’s nose and mouth. Mrs. Holland also noticed Alison was not wearing the same clothes she was wearing when Mrs. Holland left the house that afternoon. Later she found the child’s original clothes soaking with some other clothes in the bathtub. Cindy, the other child who was sleeping in the bedroom, was not harmed, nor was the third child who was in the house.

An ambulance took Alison to the hospital, and she died two days later. Dr. Edward Shalgos, a pathologist in the office of the Coroner of Cook County, testified that the cause of death was a cerebral concussion complicated by the presence of a not visibly compressive subdural hematoma which was related to the application of a harmful force to the back of the head. The doctor testified that a blow from an open or closed hand could have caused the injury or it could have resulted from a fall.

Mrs. Holland testified that the defendant had struck or beat the deceased on three prior occasions. Three or four months before Alison’s death, Mrs. Holland noticed that Alison had a hand print on the side of her face. On another occasion, after Alison had been with her father, Mrs. Holland observed that Alison had a split lip and was bleeding from the mouth. On the third occasion, in December, 1969, Mrs. Holland saw the defendant rip a dress off Alison when she was having trouble undressing the child and saw him pull some hair out of her head. None of these incidents required a doctor’s treatment.

Joseph Cominsky, a Chicago Police Officer in the evidence technician section, and Raymond Latimer, a police investigator in the Chicago Police Department, testified that upon examination of the house, they found no evidence of forcible entry. Defendant maintained to the police officers that there had been a burglary and that it had occurred through the kitchen door. Investigation revealed that both locks on the kitchen door were intact, but that the chain on the top of the kitchen door was broken. Officer Cominsky testified that at the scene he told the defendant that he did not believe there had been a burglary. On cross-examination of Officer Cominsky, defense counsel established that if the kitchen door had been open except for the chain, an external force could have accounted for the broken chain. Mrs. Holland testified that nothing was missing from the house and that there was no damage.

That having been substantially the evidence which the prosecution presented, at the close of its case the trial court directed a finding of not guilty as to counts one and two of the indictment' which charged murder. The defendant offered no witnesses; and at the close of defendant’s case, the court found him guilty of manslaughter.

Defendant’s first contention is that the prosecution failed to establish that a criminal agency produced the death of Alison Neeley,' and that therefore it failed to prove that a specific crime had been committed. Defendant claims that there were two equally possible explanations for the injury which caused Alison’s death: (1) someone struck her on the head, and (2) she accidentally fell and struck her head on an object. We reject the argument that both explanations are equally possible.

In order to sustain the conviction, the prosecution must prove beyond a reasonable doubt that a criminal agency produced death. (People v. Manske (1948), 399 Ill. 176, 77 N.E.2d 164.) The fact of criminal agency may be shown by circumstantial evidence. (People v. Winstead (1967), 90 Ill.App.2d 167, 234 N.E.2d 175.) Dr. Shalgos testified that the injury which caused death could have been the result of an accidental fall. When viewed in connection wtih the other evidence in the case, however, this explanation becomes highly unlikely. Mrs. Holland found Alison in bed injured, and she noticed that she was wearing, different clothing from that which she was wearing earlier in the afternoon. It seems highly unlikely that a two year old child could have changed her own clothes and put them into a bathtub. It also seems highly unlikely that a two year old child could sustain a severe head injury while not in bed and then crawl back into bed, where Mrs. Holland found her. Equally unlikely is the possibility that Alison struck her head accidently against part of the bed while she was on it. We think that the prosecution sustained its burden of establishing criminal agency. We reject the arguments that Alison changed her own clothes and that an accidental fall caused the injury.

The defendant’s second contention is that the prosecution failed to prove him guilty beyond a reasonable doubt. Defendant maintains that hypotheses exist which are consistent with his innocence. One claim which we have already rejected is that the injury was accidental. Defendant also claims that the injury could have occurred in the course of a burglary. We find this explanation to be unreasonable.

In People v. Hayes (1972), 4 Ill.App.3d 997, 282 N.E.2d 777, the court affirmed defendant’s conviction for aggravated battery based on circumstantial evidence. As to the sufficiency of the evidence, the court said:

“While the evidence must be consistent with defendant’s guilt and inconsistent with any reasonable hypothesis of innocence, [cases omitted], the trier of fact is not required to search out a series of potential explanations compatible with innocence and elevate them to the status of reasonable doubt, [cases omitted]; and the trier of fact does not have to disregard the inferences that flow normally from the evidence. [Cases omitted.]” 4 Ill.App.3d 997, 1000, 282 N.E.2d 777, 779.

Defendant relies on People v. Holtz (1920), 294 Ill. 143, 128 N.E. 341, an instance in which the court reversed a murder conviction which was based on circumstantial evidence because a reasonable hypothesis consistent with defendant’s innocence existed. The court found that there was a reasonable hypothesis that an intruder in the house had committed the killing and that this explanation was just as reasonable as the explanation that one of the codefendants shot her husband. In the instant case the testimony of the police officers revealed that there was no indication of forcible entry anywhere in the house except for the broken chain on the kitchen door. Nothing was taken and only one of the three children was injured. The trial court properly disregarded the burglary hypothesis as unreasonable.

The court was justified in finding that the defendant caused Alison’s death. The record shows that except for a brief period of time, the defendant was at home alone with the children between the time Mrs. Holland left the house and the time defendant left the house in order to call the police. One of the inferences that the trial court could have properly drawn from the evidence was that the defendant touched Alison during this time. The three previous beatings show repeated mistreatment on the part of the defendant. The court could infer the manner of death and the means by which it was inflicted from the evidence. People v. Winstead (1967), 90 Ill.App.2d 167, 234 N.E.2d 175.

The defendant’s final contention is that the court erred in admitting evidence of prior instances of misconduct in which the defendant struck the deceased in the head. Although our search discloses no Illinois case which specifically decides this issue, Illinois courts have sanctioned the use of evidence of parent’s prior acts of misconduct in cases in which the death of children was the result of the parent’s behavior. (People v. Bartell (1944), 386 Ill. 483, 54 N.E.2d 700, cert. den. 324 U.S. 842; People v. Brown (1967), 83 Ill.App.2d 411, 228 N.E.2d 495; People v. Huff (1963), 29 Ill.2d 315, 194 N.E.2d 230.) In the cases cited, the courts affirmed convictions for manslaughter which were based on circumstantial evidence, and the prior misconduct of a parent was part of the circumstantial evidence which was presented.

In People v. Brommel (1961), 56 C.2d 629, 15 Cal.Rptr. 909, 364 P.2d 845, the California Supreme Court passed on the issue now before us. Over defendant’s objection the court admitted evidence relating to prior beatings of the child by her father. In affirming defendant’s conviction for second degree murder of the child, the court stated:

“The case against defendant depended upon circumstantial evidence and the challenged evidence falls within the exception to the rule allowing its admission as material to show motive, intent, and the general scheme of defendant’s continued course of conduct [cases omitted].” 56 C.2d 629, 635, 15 Cal.Rptr. 909, 912, 364 P.2d 845, 848.

In the instant case the evidence of three instances of abusive treatment of the deceased shows a continued course of conduct which is consistent with the victim’s injuries and relevant to the manner in which the deceased was killed. The instances of striking the child in the head took place over a three to four month period preceding the death of the child. We find that the evidence was of probative value to show that the defendant killed the deceased and was admissible to show the general scheme of defendant’s course of conduct toward the child.

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

Judgment affirmed.

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


author: Mr. JUSTICE McNAMARA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Ramsey, Defendant-Appellant.
    (No. 56569;
    First District (3rd Division)
    April 12, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Thaddeus L. Kowalski and Robert M. Gray, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, States Attorney, of Chicago, (Elmer C. Kissane and Robert Samko, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Defendant was charged by complaint with attempt deceptive practice. (Ill. Rev. Stat. 1969, ch. 38, par. 8—4.) The trial was conducted by the court sitting without a jury. The defendant was found guilty of the crime and sentenced to serve one year in the House of Correction. On appeal, defendant makes several contentions: first, the State did not prove that defendant attempted to use the credit card of another without the other’s consent as required by the statute; second, the State did not, in any case, prove defendant guilty beyond a reasonable doubt; third the State erred in introducing evidence of another arrest involving defendant but unrelated to the instant case; and, finally, the record does not show that defendant knowingly and understandingly waived his right to a jury trial.

At the time that the case against defendant proceeded to trial, the court inquired of defendant whether the plea was guilty or not guilty. Defendant responded that the plea was not guilty, and the court further inquired whether the trial would be by the court or by a jury. Defendant responded that the trial would be by the court and the State called the first witness.

Alex Johnston testified that he was the owner of a Standard Oil Company credit card of a specified number which card he had last seen several weeks before defendant’s arrest. The witness stated on direct examination that the card which he identified by number was the same card involved in the trial and that he had given no one permission to use the card.

The State called Glenn Eanes, the operator of a Standard Oil service station, as the next witness. Mr. Eanes stated that defendant and another man entered the station and inquired of the witness about the purchase of a set of automobile tires for their aunt. On cross-examination, the witness testified that the other man handed the credit card to the witness. but that he saw defendant hand the card to the other man as they approached. The witness also stated that he could not remember which of the two individuals signed the slip. At the time of the incident the witness confiscated the card when he learned that the card had been stolen. Although the witness was shown the card during his testimony, the card was not introduced into evidence by the State.

The arresting officer testified as to the circumstances surrounding the arrest of defendant. He stated that defendant identified himself as Alex Johnston at the time he was stopped for a traffic violation and a search yielded a driver’s license and other identification with the name of Alex Johnston. The defendant was placed under arrest as the officer knew that defendant’s name was not Alex Johnston. This officer also referred to another criminal action involving defendant during the course of his testimony.

The defendant testified that he entered the service station on the date and time in question. However, he stated that he entered the station with another man whose name he did not know at the time and who he later learned was named Raymond Valdez. Defendant stated that Valdez inquired about the tires, presented the credit card and signed the credit slip. On cross-examination, defendant admitted that he had a license belonging to Alex Johnston on his person at the time of his arrest.

Defendant’s primary contention before this court concerns the sufficiency of the evidence presented by the State. Defendant claims that file State did not prove that he committed the offense of attempt deceptive practice. In order to support this contention, defendant cites this court to the record which indicates: that Glenn Eanes, the service station attendant, did not identify the credit card which he confiscated by a number which could be related to the number of the card which Alex Johnston identified as his property; that the credit card was not introduced into evidence; that the State failed to establish that defendant presented the card to Mr. Eanes in an attempt to purchase the tires; and, that the State failed to establish that defendant was the person who signed the sales slip. These omissions, defendant contends, require this court to reverse the trial court’s finding that defendant was guilty of attempt deceptive practice.

The substantive statute under which defendant was convicted provides that:

“A person commits a deceptive practice when, with intent to defraud:
# # e
(e) He obtains, or attempts to obtain property, labor or services by any of the following means:
1. he uses a credit card which was issued to another, without the other’s consent.”
IH. Rev. Stat. 1969, ch. 38, par. 17 — 1(e) (1).

In the instant case, defendant was convicted of the inchoate offense of “attempt” which is statutorily defined as follows:

“A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” Ill. Rev. Stat. 1969, ch. 38, par. 8—4(a).

The State therefore had the burden to prove that defendant did an act which constituted a substantial step toward fraudulently obtaining property by means of a credit card which was issued to another, without the other’s consent. We agree with defendant that the State failed to meet this burden.

The totality of the State’s evidence shows only that Alex Johnston was the owner of a gasoline credit card of a specified number and that a gasoline station attendant confiscated a credit card bearing the name Alex Johnston when the card was presented to him as payment for a set of tires. Although the evidence shows, as defendant freely admitted, that defendant was present in the service station at the time the credit card was presented, there is no proof that it was defendant who attempted to purchase the tires with the stolen credit card. In fact, Mr. Banes testified that it was not defendant who handed him the credit card and that he could not remember whether or not it was the defendant who signed the sales slip. More importantly, Mr. Banes did not testify that the card he confiscated bore the same number as the card identified by Alex Johnston as his property. And, the State did not introduce the card into evidence.

The State claims that the failure to introduce the card into evidence was not fatal and cites People v. Halley, 131 Ill.App.2d 1070, 268 N.E.2d 449, to support its position. The court in Halley was faced with a conviction for carrying a concealed weapon where the weapons were not introduced into evidence. Although the court noted that it could not find a conviction for unlawful use of weapons where the weapons were not introduced into evidence, the court determined that it was not necessary for the State to introduce the weapons into evidence. We do not find the circumstances of the Halley case to be analogous to the circumstances of the instant case. In Halley the court noted that the weapons involved in the conviction were not in the possession of the State. Since the defendants there were not arrested at the time the offense was committed, the weapons were still in the possession of the defendants. In the instant case, the credit card was in the State’s possession during the entire course of the trial and could have been introduced. Although we do not find that the failure of the State to introduce the credit card into evidence would be fatal in all circumstances, we find that this omission, in addition to the other failures in the State’s proof, requires reversal of the judgment of conviction.

Because of the view we take with respect to defendant’s first contention, we find it unnecessary to discuss his other points.

For the reasons stated, the judgment of the circuit court is reversed.

Judgment reversed.

DEMPSEY, P. J., and McGLOON, J.., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Calhoun, Defendant-Appellant.
    (No. 57279;
    First District (3rd Division)
    April 12, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Ian Levin and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Robin K. Auld, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

After a jury trial, defendant was found guilty of armed robbery and sentenced to a term of two to four years. Defendant’s primary contention on appeal concerns the constitutional validity of the in-court identification of the defendant by the complaining witness. Defendant also contends before this court that the identification of the complaining witness was insufficient to prove him guilty beyond a reasonable doubt.

On September 5, 1970, at approximately 1:30 A.M., the complaining witness was awakened by sounds in her apartment. She turned on the light next to her bed and saw a man standing in the doorway to the bedroom with a board in his hand. The intruder stepped back into the hallway and ordered the complaining witness to turn off the light and put her money on the table next to the bed. The intruder entered the bedroom, took the money, and left the apartment with four or five dollars and a camera and camera case.

The complaining witness described the intruder as a Negro with a short natural haircut who was wearing a dark blue shut with short sleeves and light colored block letters across the front which the witness could not discern, dark pants, and dark shoes. Based on this general description, defendant was arrested about two blocks from the scene of the crime at approximately 7:00 A.M. on September 5, 1970. At the time of his arrest, defendant was wearing blue jeans and a short sleeved blue shirt with the word “MASTER” across the front in block letters. At the time of his arrest, defendant was searched but no physical evidence was found on his person.

At the hearing on the motions to suppress the pre-trial and in-court identifications, the complaining witness testified that she was called at about 7:30 that morning and told by the police that they had a suspect that they wanted her to identify. She went to the police station, told the desk officer who she was, and he reiterated that they had a suspect whom they wanted her to identify. While she was waiting to make the identification one of the police officers told her that a camera and camera case had been recovered from the defendant at the time of his arrest. During this time the complaining witness also spoke to a couple who stated that they had been burglarized and might have stated that they thought defendant was the perpetrator of that crime.

During the time that the complaining witness was waiting at the police station, defendant was brought, in the company of several police officers, to the area behind the front desk. Several other police officers surrounded the defendant and the complaining witness was called over to make the identification. At that time defendant was wearing the same clothes that he had been wearing at the time of his arrest. After looking at defendant for about one minute at a distance of approximately 30 feet, the complaining witness identified him as the intruder in her apartment. She also stated that she could identify defendant’s voice from that distance when the police officer asked defendant to state his name. The complaining witness further testified at the hearing on the motion that she had identified defendant at the time of a preliminary hearing at Boys’ Court four days after the defendant’s arrest.

As to the crime, the complaining witness testified at the hearing on the motions that she was asleep in her bedroom with the lights out. She was sleeping facing west with her head against the east wall of the room. Next to her bed, also alongside the east wall, on a table was a lamp which she testified would light the entire room. When she was awakened by sounds in her apartment, she turned on the lamp and saw a male Negro standing in the doorway. The doorway also was located along the east wall of the room. When she turned on the lamp, the intruder stepped back into the hallway and closed the wooden door to the room. She had no further opportunity to see the intruder in the apartment. From behind the door, the intruder told her he did not wish to harm her, but only wanted her money. He ordered her to put the money on the table alongside the bed and to keep the lights off. When she had placed the money on the table, the intruder crawled into the darkened room on his hands and knees, obtained the money, camera and camera case, and left the apartment. On direct examination, the complaining witness stated that she had an opportunity to see the facial characteristics of the intruder as he stood in the doorway. On cross-examination, she stated that she had obtained a glimpse of the intruder, and in response to a question by the judge, she stated that she had “a few seconds” to observe the intruder. She stated that she had given no estimate as to the intruders weight in her description to the police, and denied that she had told the police that her assailant was six feet tall. In response to another question by the judge, the complaining witness conceded that it would have been impossible for her to see the intruder’s feet as he stood in the doorway.

The trial judge found that the pre-trial confrontation procedures employed by the police were improper, and suppressed the pre-trial identifications which had taken place at the police station and at Boys’ Court. The court, however, refused to suppress the in-court testimony of the complaining witness.

At trial, the complaining witness, the only occurrence witness to the crime, again identified defendant as the perpetrator of the crime. Officer John Moore of the Chicago Police Department testified at trial that shortly after the crime the complaining witness gave him a description of the robber and told him that the robber was six feet tall. Officer Moore also testified that no physical evidence was recovered on the person of the defendant. No physical evidence was introduced at trial.

Defendant testified at trial and denied committing the crime in question. He stated that he was on his way to get cigarettes at the time he was arrested. He also testified that he was 5'9" tall.

Defendant argues that the methods used by the police to obtain the identification of defendant were unnecessarily suggestive, thus constituting a denial of due process of law; and that as a result, the in-court identification was so highly prejudicial as to deprive defendant of a fair trial.

In Stovall v. Denno, 388 U.S. 293, the Supreme Court ruled that confrontations for the purpose of identification may be so unnecessarily suggestive and conducive to irreparable mistaken identification that the accused is denied due process of law. Where a defendant has presented sufficient evidence to establish the unfairness of a pre-trial confrontation, an in-court identification may be admitted into evidence only if it is shown that it had an independent origin arising from the witness’ uninfluenced observation of the accused. (People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152.) The State must prove the uninfluenced origin of the in-court identification by clear and convincing evidence. People v. Holmes, 6 Ill.App.3d 254, 285 N.E.2d 561.

In the instant case, the trial court correctly suppressed the pre-trial identification as being unduly suggestive. Under the circumstances, their unfairness is apparent. However, tire State did not show by clear and convincing evidence that the in-court identification had an independent origin arising from the witness’ uninfluenced observation of the defendant. Consequently, the trial court erred in permitting the in-court testimony of the complaining witness.

The complaining witness had a minimal opportunity to observe her intruder. She was awakened in her apartment at 1:00 in the morning after she had been asleep for about one hour. When she awoke, she turned on the light next to her bed and saw a man standing in the doorway. The intruder immediately stepped back into the hall and told the witness to turn out the light. This was the only occasion the witness had to view her intruder. Although she testified that she had an opportunity to view the intruder’s facial characteristics, she also conceded that she only had a glimpse of him for a few seconds. We find that this opportunity was not sufficient to establish that the in-court identification by the complaining witness was based on an observation independent of and uninfluenced by two unnecessarily suggestive pre-trial confrontations.

The prior confrontations were unreasonably suggestive and could only serve to instill the image of defendant in the witness’ mind as the person who committed the crime. Since the identification of the complaining witness was the only evidence linking the defendant to the crime, the conviction must be reversed. See People v. Magadanz, 126 Ill.App.2d 335, 261 N.E.2d 703.

In view of our holding on the constitutional claim, it is unnecessary to consider defendant’s contention that his identification by the complaining witness was insufficient to prove him guilty beyond a reasonable doubt.

For the reasons stated, the judgment of the circuit court is reversed.

Judgment reversed.

DEMPSEY, P. J., and McGLOON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Carl Days, a/k/a Carl Finkley, et al., Defendants-Appellants.
    (Nos. 57355, 57853 cons.;
    First District (3rd Division)
    April 12, 1973.
    Gerald W. Getty, Public Defender, of Chicago, (Stanley Sacks and James J. Doherty, Assistant Public Defenders, of counsel,) for appellants.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, John O’Rourke, and Frederic Chaimson, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tony Williams, Defendant-Appellant.
    (No. 57822;
    First District (3rd Division)
    April 12, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    No appearance for the People.
   PER CURIAM.


author: Mr. JUSTICE LORENZ.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Rene F. Nawodylo, Defendant-Appellant.
    (No. 56523;
    First District (5th Division)
    April 13, 1973.
    Howard T. Savage, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and William D. Wolter, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE LORENZ.


text:
    Julian J. Luster, Claimant-Appellee, v. Estate of Samuel S. Cohon, Deceased, Respondent-Appellant.
    (No. 57239;
    First District (5th Division)
    April 13, 1973.
    Much and Shelist, of Chicago, for appellant.
    Julian J. Luster, pro se.

   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Maurice Stevenson (Impleaded), Defendant-Appellant.
    (No. 57458;
    First District (5th Division)
    April 13, 1973.
    James J. Doherty, Public Defender, of Chicago, (Bernard L. Schwartz, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, James R. Carlson, and Michael R. Epton, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


author: Mr. JUSTICE EGAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leon Young, Defendant-Appellant.
    (No. 56151;
    First District (1st Division)
    April 16, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Michael Weininger and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Cary A. Lind, and Ronald Neville, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

The defendant, Leon Young, was indicted for the murder of Julius Robinson; he waived a jury and was found guilty of voluntary manslaughter and sentenced to a term of 6 to 14 years. The defendant contends on appeal that he was not proved guilty beyond a reasonable doubt.

Phillip Robinson, no relation to the deceased, called by the State as a court’s witness, testified that he was having a birthday party in his home at 4728 South Prairie in Chicago on October 12, 1969. The defendant, whom he had known for over a year, came in from the back about midnight accompanied by a man and a woman. He noticed that the defendant was wearing a holster with a gun in it. He told the defendant to leave because of the way he was acting; he knew the defendant had had too much to drink. The defendant left with his friends. Later, about daybreak, he heard a loud bursting noise come from the kitchen. Someone told him Julius Robinson had been shot and he went into the kitchen. He saw Leon Young going out the door, “not really fast, but not really slow.” Julius was between the sink and the stove, coughing; he was turned around and he had a knife in his hand. Phillip Robinson took the knife and laid it on the table. The police were called. He looked out and saw the defendant and his companions “speeding away” in a car. He later observed that the window over the back door lock had been broken. The defendant was the only guest that came in from the back. He had invited the defendant to the party. He had testified before the coroner’s jury and grand jury that he had not invited the defendant. At trial he explained that when he had previously testified he meant that he had not given the defendant a written invitation. When he made a written statement to the police he did not mention a knife in the hands of the deceased. He did not notice any blood on the knife. He had been drinking heavily that morning and night.

Clifford Wright testified on behalf of the State that he saw the defendant and his friends enter through the back door after pushing it in. He helped the defendant off with his coat because the defendant had cut his hand. He noticed that the defendant was wearing a shoulder holster with a gun. Later he saw the defendant arguing with a woman; the defendant pushed her and came at her with a gun. Someone told the defendant to leave, and he did. Some time later he heard some noise in the kitchen. From where he was sitting, he could see into the kitchen. He saw the defendant pull out the gun and fire, but he could not see at whom the defendant was firing. He ran into the kitchen and saw the deceased near the table “gagging” for air; the defendant was putting the gun into his holster. The deceased fell to the floor. There was no knife, or anything else, in the hands of the deceased. He saw the defendant leave. Phillip Robinson was not in the kitchen when he first went in after the shot was fired.

Aureia Zackary testified that she arrived at the party a little after 5:00 A.M., with the deceased, and her employer, Mr. Lang. They were having a drink in the dining room when the deceased went into the kitchen. She heard a shot and immediately ran into the kitchen where she saw the deceased lying on the floor. Phillip Robinson was not in the kitchen. She did not see a knife in the deceased’s hand or near his body. She did not see the actual shooting.

Arthur Lang testified that when he arrived at the party with the deceased he noticed that the window in the back door was again broken; he had fixed it only two days earlier. He entered the kitchen after he heard Mrs. Zackary scream. The deceased was lying on the floor. There was no knife in the deceased’s hand or lying by his body. He did not see the person who did the shooting. He did not look around for a knife. The deceased had gone into the kitchen to get a glass.

Harold Leonard Roebuck testified for the defense that he and his wife, Beverly, came to the party with the defendant. They came in the back way. The defendant cut his hand when he knocked on the door, and he gave the defendant a scarf to wrap around the cut. When the defendant took off his jacket, he did not notice a shoulder holster or a gun. He did not have anything to drink; but on cross-examination he said he might have had one beer. He told the defendant that he was ready to leave. The defendant was not unruly at the party; he was sober. After they left the party, they drove around for 20 minutes. When they realized that the scarf had been left at the party, they went back for it. After returning to the party they looked for the scarf but could not find it. They were getting ready to leave for the second time. He cut a piece of cake and laid the knife down on the kitchen table. The defendant started to light a cigarette on the kitchen stove. As he was moving a pot on the stove, the deceased asked him what he was going into the pot for. The defendant answered he was moving it; they had a few words. The deceased then picked up the knife and swung it at the defendant. Roebuck jumped back and heard a shot. He did not see the shooting, but he did see the defendant standing there with the gun in his hand. After the shot, a lady and Phillip Robinson came into the room. The deceased was standing there with the knife in his hand. He, his- wife and the defendant left together. He let the defendant out of Ms car at 62nd and Harper. He had been convicted of burglary and had been placed on probation. He believed the defendant was cut on the left wrist. He had testified at a bond hearing that the defendant was cut on the right wrist. He first saw the gun after the shot was fired. At a bond hearing he had testified he saw the defendant fire the shot.

The defendant testified that he arrived at the party with Roebuck and his wife. He had been verbally invited by Phillip Robinson. He cut his finger when he knocked on the back door. Roebuck lent him a scarf to put around the cut. During the party he drank a beer. The cut on his hand started to bother him so he decided to leave. After they had left and driven about seven or eight blocks, he realized that he had left Roebuck’s scarf at the party, and they returned to get it. They could not find the scarf and decided to leave again. He stopped in the kitchen on his way out to light a cigarette on the stove. He moved a pot over and was lighting the cigarette when the deceased, whom he did not know, asked him what he was doing messing with the pot. An argument ensued, and the deceased picked up a knife and started to slash at the defendant; tire defendant was cut on the left wrist and chest. He backed up, but the deceased, who was larger than the defendant, continued to slash with the knife. He remembered that he had in his pocket a gun which had been given to him that day by a young lady named Peaches for safe-keeping. He was not wearing, nor did he own, a holster for the gun. He pulled the gun from his coat and shot upwards in an attempt to frighten the deceased, who was about an arm’s length away when he shot him. He did not know the gun was loaded. He left with Mr. and Mrs. Roebuck immediately after the shooting. He dropped the gun in the back of the building where the shooting occurred. The deceased was still standing when they left. He did not know whether he had shot the deceased. It was about two weeks later that he heard about tire deceased’s condition. Between the date of the shooting and his arrest a month later, the defendant continued to live at the same address, 6236 South Harper; but during this time he was continually in and out of town. He gave the police his mother’s address, 6915 Parnell.

Lola Jordan testified in rebuttal that the defendant was wearing a shoulder holster. When she saw the defendant he appeared to be drunk. She was asleep when the shooting took place.

Michael Griegel also testified in rebuttal that he searched for physical evidence after the shooting both inside and outside the house and he did not find a gun. He did not see a cake on the kitchen table. He talked to Phillip Robinson; no one ever told him that the deceased had a knife. He visited 6915 Parnell and 6236 Harper on a number of occasions in the early morning hours and did not find the defendant.

It was stipulated that Joseph S. Price would testify that he was a micro-analyst employed by the Chicago Police Department. He conducted a spectroscopic and microscopic examination of the undershirt and outer-shirt of tire deceased; he found a single perforation in each of the garments; there was no powdery dust nor scorched fabric in the area surrounding the perforations.

By stipulation, Officer Thomas Dwyer, who had testified in chief that he arrested the defendant, testified that the defendant gave his address as 7925 South Greenwood.

The trial court found the defendant guilty of voluntary manslaughter under section 9 — 2(b) of the Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, par. 9—2(b).) That section provides:

“9 — 2. Voluntary Manslaughter.
# # #
(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.”

Section 7 — 1 provides:

“7 — 1. Use of Force in Defense of Person. A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.” Ill. Rev. Stat. 1969, ch. 38, par. 7—1.

The defendant’s argument may be summarized: If the court accepted the theory of the State, that the deceased was unarmed, then the evidence would lead to no other conclusion but that the defendant was guilty of murder. However, since the court by its finding of not guilty of murder perforce rejected the evidence that the deceased was unarmed, it was obliged to accept the only eyewitness testimony — the defendant and Roebuck. That being so, and since their testimony clearly shows that the defendant acted in self-defense, he must be not guilty.

The same argument, that the evidence shows murder or nothing, has been raised, although not couched as syllogistically as here, in the following cases, all of which affirmed conviction, involving findings of guilty of manslaughter by a court under an indictment for murder: People v. Green, 23 Ill.2d 584, 179 N.E.2d 644; People v. Wiggins, 12 Ill.2d 418, 147 N.E.2d 80; People v. Franklin, 390 Ill. 108, 60 N.E.2d 870; People v. Crawford, 387 Ill. 616, 56 N.E.2d 805; People v. Sain, 384 Ill. 394, 51 N.E.2d 557; People v. Binion, 132 Ill.App.2d 257, 267 N.E.2d 715.

From these cases a number of principles appear:

The defendant may not complain of a finding of guilty of manslaughter where, the evidence shows that he could have been found guilty of murder.

Where the deceased was killed by a shot from the gun in the hands of the defendant, the burden is on him to prove circumstances mitigating, justifying or excusing his acts, unless it was sufficiently manifest from the proof on the part of the prosecution that he was justified or excused in committing the homicide.

A jury having been waived, it is the province of the trial judge to determine from the facts and circumstances whether the defendant acted in self-defense, or, if not in self-defense, whether the circumstances attending the act were such that the killing constituted murder, manslaughter, or justifiable homicide.

The defendant does not argue, nor do we believe he could, that the evidence could not support a finding of murder. Nor can we say that the proof on the part of the prosecution sufficiently manifests that the defendant was justified or excused in committing the homicide. The trial judge was not compelled to accept the accounts of the defendant or his witnesses as conclusive, but could properly consider the surrounding circumstances and tire probability or improbability of their stories. (People v. Wiggins, 12 Ill.2d 418, 423, 424, 147 N.E.2d 80.) A fact finder could accept the following as true: the defendant was armed with a loaded pistol, carrying it in a shoulder holster; he had previously threatened a woman with the pistol; he was so drunk and unruly that he was requested to leave; despite that request, he returned (“His persistence, in remaining, [could] be ascribed only to an evident desire on his part to court additional trouble.” People v. Sain, 384 Ill. 394, 399, 51 N.E.2d 557); the deceased, 43 years of age, had finished working a ¡ short time before he came to the party; he was sober and went into the kitchen to get a glass; he was shot by the defendant a few minutes later while he was unarmed; the defendant fled and disposed of the weapon; he remained away from his home and his mother’s home for over a month and gave the police a false address when arrested. See People v. Crawford, 387 Ill. 616, 618, 620, 56 N.E.2d 805.

That evidence discloses a picture of a dangerous, surly drunk, looking for trouble, quick to anger and quick to use a loaded weapon, who, conscious of his guilt, fled and remained in hiding.

The trial judge, as finder of fact, was not required to accept nor reject the testimony of any witness in to to. And although he made no specific findings of fact, he could have concluded that there was an altercation between the deceased and the defendant; that the deceased did not have a knife but did curse and threaten the defendant; and that the defendant in his drunken condition may have believed that his conduct was necessary; but that his belief was unreasonable.

The cases cited by the defendant are either factually inapposite or were reversed on other grounds. In People v. Jordan, 4 Ill.2d 155, 122 N.E.2d 209, the only evidence of the occurrence consisted entirely of various statements of the defendant, which, although contrary to each other as to how the defendant struck the deceased, all made out a case of self-defense. The court held there was no evidence from which the jury could conclude otherwise. In People v. Lewellen, 43 Ill.2d 74, 250 N.E.2d 651, the court held that the circumstantial evidence was not sufficient to rebut the defendant’s testimony of self-defense. In People v. Williams, 56 Ill.App.2d 159, 205 N.E.2d 749, the undisputed evidence showed that a gang of boys were beating an old man; when the defendant sought to assist him, a brick and cement block were thrown at his cab; the court held under the circumstances the defendant reasonably believed he was in danger of suffering great bodily harm. In People v. Durand, 307 Ill. 611, 139 N.E. 78, and People v. Willy, 301 Ill. 307, 133 N.E. 859, the Supreme Court remanded for a new trial because of improper instructions concerning self-defense. In People v. Morgan, 114 Ill.App.2d 421, 252 N.E.2d 730, the evidence showed that the defendant was a security guard who attempted to arrest the deceased, with whom he had had a previous altercation the night before. The eyewitness testimony showed that the defendant had taken out handcuffs while he was talking to tihe deceased just before the shooting. The court held that the evidence was insufficient to rebut the defendant’s contention that he had acted in self-defense. Parenthetically, we note the language in that case responsive to the argument of the defendant here (p. 426):

“The contention of the defendant that the finding of guilty of voluntary manslaughter where he had introduced evidence of self-defense constitutes a compromise is untenable. This argument assumes that whenever a person believes that deadly force is necessary to protect himself from death or great bodily harm his belief must be reasonable. If that proposition were correct a factual situation could not arise where section (b) of the statute would be applicable.”

For the foregoing reasons we conclude that the defendant was proved guilty of voluntary manslaughter beyond a reasonable doubt. The judgment of the circuit court is affirmed.

Judgment affirmed.

BURKE, P. J., and GOLDBERG, J„ concur.


author: Mr. PRESIDING JUSTICE BURKE

text:
    Leon Feldman, Plaintiff-Appellant, v. Irene Fitzpatrick, Defendant-Appellee.
    (No. 56491;
    First District (1st Division)
    April 16, 1973.

      William S. Keck, of Herman & Tannebaum, of Chicago, (Sidney Z. Karasik, of counsel,) for appellant.
    Hubbard, Hubbard, O’Brien & Hall, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

An automobile in which plaintiff was a passenger, driven by his 16-year-old son, Richard, was struck in the rear end by an automobile owned and operated by defendant, Irene Fitzpatrick.

Plaintiff alleged that as a result of the occurrence, he sustained “severe and permanent injuries” and damages in the amount of $125,000.

At the conclusion of all the evidence, the court directed a verdict in favor of plaintiff on the issues of contributory negligence and defendant’s negligence. The case was submitted to the jury on the issues of causality and damages. The jury returned a verdict in favor of defendant and judgment was entered thereon. Plaintiff appeals.

Plaintiff testified that on May 15, 1965 at 5:00 P.M. he and his son, Richard, were involved in an automobile accident with the car of defendant, Irene Fitzpatrick. He testified that at the time of the occurrence he was riding as a passenger in the front seat and his son, Richard, was driving the vehicle. The Feldman automobile, northbound on Ridge Avenue in Chicago was stopped in obedience to a red traffic signal at Lunt Avenue. Plaintiff testified that defendant’s car, which also was proceeding northbound on Ridge Avenue in the same lane as the Feldman car, struck the rear end of the Feldman car. Plaintiff testified that the impact of the vehicles caused him to strike his head on the windshield, as a result of which he became unconscious for half a minute.

Plaintiff testified that the police department was notified and that a police officer arrived at the scene and investigated the accident. After the investigation plaintiff’s son drove him home. Plaintiff stated that after the accident he felt “bad” and his “head was hurting.”

Plaintiff testified that later that evening his brother and sister-in-law came over to his house and took him to see Dr. Sidney Alpert. Dr. Alpert recommended that plaintiff enter Mt. Sinai Hospital the next day where plaintiff was hospitalized from May 16, 1965 to May 28, 1965. Plaintiff testified that after his initial hospitalization, he was hospitalized on different other occasions and lost a substantial amount of time from work.

On cross-examination, plaintiff testified that after he struck his head on the windshield, he had a bruise in the right forehead area. He believed the bruise was discolored and that the bump or mark would be visible to persons observing him after the accident.

Plaintiff’s son testified that as a result of the impact of the vehicles, he was “thrown back and forwards against the steering wheel” and that subsequent to the accident he was treated by Dr. Alpert.

On cross-examination Richard Feldman testified that he had been a plaintiff in the lawsuit and had taken a non-suit approximately ten or fifteen minutes before he was called to testify as a witness in his father’s behalf. He further testified that after the accident, he did not see any marks on his father and that his father did not respond to the investigating police officer’s inquiry concerning whether anyone was injured. Richard Feldman testified that the Feldman car was damaged in the rear end but was unable to specify the exact area which was allegedly damaged and stated that the car was not repaired after the accident.

Dr. Merrell R. Reiss, a physician and neurologist associated with Mt. Sinai Hospital, called by plaintiff, testified that he examined an E.E.G. (electroencephalogram) taken of plaintiff on May 19, 1965. Dr. Reiss testified that his interpretation at that time was an “abnormal E.E.G.” and that this might indicate an irritative response to an injury. Dr. Reiss further testified that he interpreted a subsequent E.E.G. of plaintiff taken in August 1965 and that at that time plaintiffs E.E.G. was normal. In response to a hypothetical question propounded by plaintiffs counsel, Dr. Reiss stated that he was of the opinion that the abnormality he discovered at the time of the first E.E.G. was “probably secondary to or caused by the injury.”

On cross-examination of Dr. Reiss, the following occurred:

“Defense Counsel: Doctor, as I understand it, your active professional services in relation to Mr. Feldman was reading these two electroencephalograms?
The Witness: That is correct.
Defense Counsel: You performed no neurological consultation or other services?
The Witness: That’s correct.
Defense Counsel: Probably, as a matter of fact, you didn’t even |
see the gentleman personally?
The Witness: Probably not. I could have in the laboratory, but probably not.
# # #
Defense Counsel: Is this the type of thing that might be caused, shall we say, by a blow to the head in a football game or falling down and bumping your head?
The Witness: It usually is caused by something where there is more than — in other words, if there is a bump on the head ordinarily the brain is not involved in any way. It would suggest that whatever injury there is, while it may not be anything of a serious or mortal nature, has had some effect, some mild effect at least, on the brain substance underneath.
Defense Counsel: Can an irregular E.E.G. be caused by anything other than trauma, stress, or strain?
The Witness: Certainly. It can, yes.”

Dr. Sidney Alpert testified as a witness in plaintiff’s behalf that he saw the plaintiff at his office on the evening of May 15, 1965 and at that time Dr. Alpert suggested plaintiff enter the hospital. Dr. Alpert testified that plaintiff gave a history of having been involved in an automobile accident and that during his hospitalization, plaintiff complained of severe headache, severe stiffness and soreness in his neck and across his shoulders, being very tense and nervous, abdominal pain, nausea, and vomiting.

On cross-examination Dr. Alpert testified that his only objective finding during the first examination of plaintiff was “spasticity in the neck, shoulder area and upper back.” The witness further testified that he signed and approved a summary of the hospital records concerning plaintiff dated May 16, 1965 which stated that plaintiff’s “neck was supple and non-tender” and that plaintiff was “somewhat anxious and alert, but in no acute distress” and that “there were no remarkable physical findings” concerning plaintiff. Dr. Alpert stated that the hospital summary of May 16, 1965 was prepared by a medical student and that he did not necessarily agree with the findings. The witness testified that he would have signed the medical summary of May 16, 1965 notwithstanding the fact that he disagreed with the stated findings.

Dr. Harry H. Garner, a physician specializing in psychiatry and neurology called as a witness for plaintiff testified that plaintiff was referred to him for consultation by Dr. Sidney Alpert. Dr. Gamer testified that after treating plaintiff and examining his medical history he was of the opinion that there was a direct causal relationship between the accident which plaintiff experienced and the subsequent symptom syndrome and disability which Dr, Garner diagnosed as a “traumatic neurosis.”

On cross-examination, Dr. Garner acknowledged that he was aware that plaintiff had been in a concentration camp during World War II and had immigrated to Israel and then to the United States. In response to a question concerning whether plaintiff s “neurosis” was a pre-existing illness, Dr. Garner stated that plaintiff had all the experiences and part of his personality makeup was such that he was “prone to develop a neurotic reaction under stressful situations.”

Defendant Irene Fitzpatrick testified that on May 15, 1965, she was driving her car north on Ridge Avenue in Chicago. As she approached the intersection of Ridge and Lunt Avenues she noticed that the traffic control light for northbound traffic was red, applied her brakes and brought her car to a complete stop. At this time her vehicle was in the lane closest to the curb and the front of her car was two or three feet behind plaintiffs car.

Defendant further testified that after she came to a complete stop, she put her car in neutral gear, and applied the brake. She then leaned over to get sunglasses out of her glove compartment and in doing so she apparently partially released the brake and her car rolled slightly forward and struck the rear bumper of the plaintiffs car. Almost immediately after the impact plaintiff got out of the car and came around to talk to her, to complain that her car had bumped into his car and damaged it. At the time of the conversation, she was in the drivers seat of her car and Mr. Feldman was standing next to her car and she saw no cuts or bruises on his face nor any bump or lump on his forehead. She got out of her car to inspect the vehicles. There was no damage to her car and she did not see any damage to the Feldman car. She further testified that at the time they were looking at plaintiffs car, she did not observe anything of an unusual nature about his actions or appearance.

The witness further testified that the police department was notified of the accident and that when the police officer arrived he questioned her and plaintiff. During the course of the police officers investigation, he asked if anyone was injured and no one responded affirmatively. She testified that at the time of the investigation, she saw no cuts or bruises on plaintiffs forehead.

The first time she had any knowledge of plaintiff’s claim of injury was about ten days to two weeks after the accident when she received a letter from attorneys representing plaintiff. The witness further testified that subsequent to the accident, she saw plaintiff in the traffic court and at that time she did not observe any marks or bruises on his face and he did not make any complaint of injury to his person.

Chicago Police Officer Lewis Cane, called as a witness by the defense, testified that on May 15, 1965 he investigated an automobile accident at Ridge and Lunt Avenues involving the Feldmans and Irene Fitzpatrick. The accident report, Defendant’s Exhibit 1, bore his signature and he had prepared the report on May 15, 1965. The officer testified that the report was “marked property damage and no indication of personal injuries.” The officer further testified that if there had been any complaints of personal injuries, he would have marked the report “injury” and would have filled out the back side of the accident report. The witness stated that he would mark on the report a complaint indicating injury if he saw a bump or cut or other indicia of injury even if the person involved indicated that he was not injured.

The defense called plaintiff as an adverse witness under Section 60 of the civil practice act. Plaintiff testified that when he came to the United States, he worked for Hamilton Glass Company and later for Century Industries. He testified that during the period from 1960 to 1965 he was not “sick or injured to any degree.” He worked steadily and there were never any injuries to his wife or son that required him to take time off from work. He testified that he was “very happy” in his employment.

At this point, defense counsel proceeded to introduce defendant’s Exhibit 2, a letter from Century Industries dated March 1, 1963 which was directed to the plaintiff and which was covered by a stipulation regarding business records. Defense counsel then proceeded to read the following letter to the witness in the presence of the jury:

“This is to advise you [Leon Feldman] that we are taking official notice of your repeated and excessive absenteeism from work. Further unauthorized absence will require that we replace you with an employee who will be present for work on a full-time basis. A copy of this letter will be forwarded to your union.” From Sidney Gold, Director of Personnel.

Plaintiff acknowledged seeing the aforementioned letter and further testified that the same company kept his job open for him for seven months after the accident and finally terminated him in December 1965.

Plaintiff argues on appeal that the uncontradicted testimony of a causal relation between plaintiff’s condition of ill being and the accident could not be rejected by the jury and therefore the verdict was against the manifest weight of the evidence,

As this court recently stated in Apato v. Be Mac Transport Co., 7 Ill.App.3d 1099, 1102, 288 N.E.2d 683, 686, a case involving a somewhat similar factual situation:

“In a negligence action, however, a verdict may be directed as to liability only when liability has been proved as a matter of law. Liability includes both negligence and injury. Whether [plaintiff] sustained an injury was a major issue at the trial. In a negligence action the plaintiff must establish a duty owed by the defendant, a negligent act or omission by the defendant which breaches that duty and a compensable injury to the plaintiff resulting from such breach. (Lasko v. Meier (1946), 394 Ill. 71, 67 N.E.2d 162; Drell v. American Nat. Bank and Trust Co. (1965), 7 Ill.App.2d 129, 207 N.E.2d 101.) To warrant an assessment of liability, affirmative and positive proof is required that tire actionable negligence was the proximate cause of the injury. (Sansone v. Atchison, Topeka & Santa Fe R.R. Co. (1967), 83 Ill.App.2d 435, 228 N.E.2d 101.) Even if the jury concluded that the [defendant] was negligent, [plaintiff] would not have been able to recover damages unless the jury also believed that she had been injured as a result of [defendant’s] negligence. Cf. Cohen v. Sager (1971), 2 Ill.App.3d 1018, 278 N.E.2d 453.” Apato v. Be Mac, 7 Ill.App.3d 1099, 1102, 288 N.E.2d 683, 686.

The major issues in the instant case were whether plaintiff was injured and whether the negligence of the defendant was a proximate cause of the injury to the plaintiff. Defendant admitted striking plaintiff’s car and there was no issue as to the negligence and the trial court correctly directed a verdict for plaintiff on the negligence issue. Indeed, during the course of colloquy regarding plaintiff’s motion for a directed verdict, plaintiff’s counsel stated:

“I am not asking the directed verdict as to whether tire negligence of which [defendant] was found guilty caused this injury. I don’t want that. I think that should always be a jury question, and the nature of the extent of the injury if they accept that there is an injury.”

The plaintiffs own evidence is the only explanation of the result; namely the jury returning a verdict finding for defendant and against plaintiff. Plaintiffs testimony was self-contradictory and was, in some material matters, impeached. The jury could have found plaintiff unworthy of belief and his alleged injuries feigned. The testimony of plaintiff’s doctors was such that the jury could not have been compelled to accept it. Plaintiffs argument that the testimony concerning a “causal relation between plaintiff’s condition of ill being and the accident” is “uncontradicted” is not supported by our examination of the record. From our examination of the record, we cannot say as a matter of law that the jury’s verdict was against the manifest weight of the evidence.

Plaintiff also argues that the risk of colliding with the rear of plaintiffs vehicle included the risk of precipitating plaintiff’s alleged “traumatic neurosis” even if the latter was an unforeseeable consequence.

Plaintiff premises this argument on the opinion expressed by Dr. Harry Gamer that there was a causal relationship between the accident which plaintiff experienced and the subsequent symptom syndrome and disability which Dr. Garner characterized as a “traumatic neurosis.”

Plaintiff states that “it is true that plaintiff’s history as a refugee from Poland, via Israel, after a long time in a Nazi concentration camp, the change in his economic condition on arrival in this country and other personal factors of long standing, may have predisposed him to the neurosis” but argues that this accident “triggered” the neurosis.

Plaintiff had the burden to establish a causal relationship between defendant’s negligence and his injury by the preponderance of evidence and with reasonable certainty. (Daly v. Bant, 122 Ill.App.2d 233, 258 N.E.2d 382.) In the instant case, whether plaintiffs alleged neurosis was caused by some other “stressful situation” or whether it was, as plaintiff contends precipitated by the accident, was a question of fact to be resolved by the jury. As has been frequently stated, the jurors are the sole judges of the credibility of the witnesses and the weight to be given to their testimony and from our review of the record, we cannot say that the jury’s finding was against the manifest weight of the evidence.

Plaintiff argues that if the jury did not believe that his neurosis was caused by the accident, it could not disbelieve his proven special damages and out-of-pocket expenses. He concedes, arguendo, that the jury was not obliged to believe that plaintiff’s emotional disorder was a traumatic neurosis caused by the accident but argues that there was other evidence of plaintiffs injury which makes the jury’s verdict untenable.

Plaintiffs hospital and medical bills were not introduced into evidence. The only testimony concerning plaintiff’s expenses was that of Dr. Alpert that he rendered a bill for services to plaintiff which was “around $850.00, $860.00” and that in his opinion this was “a fair and reasonable amount based on relative and like charges in the City of Chicago by other doctors.” Neither party attempted to segregate the portion of Dr. Alpert’s bill attributable to the alleged “neurosis” apart from the treatment of plaintiff’s alleged “stiff neck and blow to plaintiffs head.”

From our examination of the record, the jury may have concluded that in fact plaintiff did not strike his head and that he did not have a stiff neck. At the trial plaintiff testified that after he struck his head on the windshield, he had a bruise in the right forehead area and that he believed the bruise was discolored and the bump or mark would be visual to persons observing him after the accident. Plaintiff’s testimony is rebutted by other witnesses, including plaintiff’s son, who testified that after the accident they observed no marks on the plaintiff. Moreover,

Dr. Alpert’s testimony that plaintiff sustained a “stiff neck” as a result of the accident was impeached to a degree by the doctor’s admission that he had signed and approved a summary of the hospital records concerning plaintiff dated May 16, 1965 which stated plaintiff’s neck was “supple and non-tender.”

As this court stated in Jeffrey v. Chicago Transit Authority, 37 Ill.App.2d 327, 335, 185 N.E.2d 384, 388:

“If the jury did not disbelieve the plaintiffs and if their evidence was not discredited we presume verdicts would have been returned commensurate with their testified pains and losses.”

We cannot say that the jury’s determination was against the manifest weight of the evidence and can perceive no reason to warrant overturning the verdict.

Therefore, the judgment is affirmed.

Judgment affirmed.

GOLDBERG and EGAN, JJ., concur.


author: Mr. JUSTICE GOLDBERG Mr. JUSTICE GOLDBERG

text:
    Samuel Crosby, Plaintiff-Appellant, v. The City of Chicago, Defendant-Appellee.
    (No. 56526;
    First District (1st Division)
    April 16, 1973.

      Supplemental opinion upon denial of rehearing June 4, 1973.

      Thomas P. Stillman and David N. Cook, both of Mandel Clinic — Legal Aid Bureau, of Chicago, for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Richard F. Friedman, Assistant Corporation Counsel, of counsel,) for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

In this action for damages for an allegedly unlawful detention of an automobile, Samuel Crosby (plaintiff) appeals from a judgment entered in favor of the City of Chicago (defendant) after trial by the court. After the filing of plaintiff’s amended complaint, alleging wrongful detention of the car, the City filed an answer in which it admitted that plaintiff was the lawful owner of the automobile; denied that plaintiff was damaged by loss of earnings of $25 per day or by assessment of towing and storage charges as he had alleged and denied that the detention was wrongful. The answer also averred that the automobile had been released by the City to the sheriff of Cook County on November 30, 1971, pursuant to section 36—1 of the Criminal Code. Ill. Rev. Stat. 1969, ch. 38, par. 36 — 1.

Plaintiff filed a motion for judgment on the pleadings as to the issue of liability. However, the court denied this motion; and, after hearing the evidence, found defendant not guilty.

Plaintiff urges that his vehicle was wrongfully detained because the police violated the applicable statute and also that the statute in question is unconstitutional. The City contends that plaintiff failed to prove the amount of his damages and that the constitutional objections to the statute have been decided contrary to plaintiff’s contentions and are of no relevance. In his reply brief, plaintiff urges that he is entitled at least to nominal damages and that actual damages were properly proved.

The evidence, which comes before us by virtue of a stipulated bystander’s report of proceedings, showed that on September 22, 1970, plaintiff’s automobile was seized by the City Police Department. It has been identified by license number and physical description as having been used in an armed robbery. Plaintiff made numerous unsuccessful attempts to obtain return of the vehicle from the police. Plaintiff was never arrested and was never charged with any crime in connection with the incident. On September 29, 1970, plaintiff received a letter from the police advising that he could obtain his automobile if he paid a towing fee of $20 and a storage charge of $2 per day. Plaintiff went to the automobile pound and offered to pay the charges but was told that the car could not be released. The evidence does not disclose if plaintiff ever received return of the automobile.

The vehicle was seized by the police on September 22, 1970. Under the applicable statute, it was their duty to deliver it “forthwith” to the sheriff of Cook County. The sheriff would then be obliged to notify the State’s Attorney of Cook County concerning this seizure within 15 days. Upon such notice, the State’s Attorney would have investigated the facts and then would either have returned the automobile to plaintiff or filed a forfeiture action for seizure and confiscation of the vehicle in the circuit court. (Ill. Rev. Stat. 1971, ch. 38, par. 36—1, 36—2.) The vehicle here was simply held by the police and not delivered to the sheriff. In view of this violation of the statute, the detention was unlawful.

The sole remaining issue on the merits of the case is whether or not plaintiff has properly proved damages resulting from the wrongful detention.

It is the law of Illinois that in a case of this type, where plaintiffs claim is for detention of a chattel, the proper measure of damages is “* * * the reasonable value of die use during the period of wrongful detention." (Cottrell v. Gerson, 371 Ill. 174, 182, 20 N.E.2d 74.) See also National Contract Purchase Corp. v. McCormick, 264 Ill.App. 63, where this court, in an automobile detention case, allowed plaintiff only the net or excess amount by which the actual cost of hiring a substitute vehicle exceeded plaintiff’s cost of driving the detained car. There is no evidence here that plaintiff ever hired another vehicle and no evidence of the fair and reasonable cost of doing so. The proper measure of damages is thus not alleged in the amended complaint and not established by any proof.

The amended complaint alleges as elements of plaintiff’s damages only a loss of earnings and billing of storage and towing charges to him. The matter of loss of earnings is not within the scope of the measure of damages for this tort and no special circumstances appear which would cause such loss to be germane. In addition, the evidence regarding this element raised an issue of fact. Plaintiff testified that he was employed by a life insurance company as a salesman and collector. This job paid him $125 per week. He further testified that he attempted to continue his employment by using taxicabs and public transportation but was unable to do so. Therefore, he left his employment after two weeks and was unable to find other work until the end of November. On the contrary, there is evidence by a police officer that plaintiff told him he was unemployed and looking for work on the date of the robbery which was September 10, 1970. Plaintiff denied this statement. A finding by the court that this evidence was insufficient proof of claimed damages was not contrary to the manifest weight of the evidence. Cook Electric Co. v. Kolodny, 1 Ill.App.3d 181, 183, 273 N.E.2d 674.

As regards the alleged charges for towing and storage, there was no evidence that plaintiff ever paid these charges. Plaintiff’s attorney was told that plaintiff would be billed for these amounts and at one time a tender of charges by plaintiff to the police was rejected. There is no evidence that any charges were ever paid by plaintiff or by any other person. Consequently, we are in accord with the result reached by the trial court that there was a complete failure of proof as regards damages to plaintiff.

However, counsel for plaintiff urges that his client is entitled to nominal damages without the need of proof. In the early days of the law, the principle became fixed that, “The law infers damage from every infringement of a right.” (McConnel v. Kibbe, 33 Ill. 175, 178.) Learned text writers followed this same principle. In the fourth edition of Sutherland on Damages, volume 1 at page 36, we find the following rule expounded:

“The principle that for the violation of every legal right nominal damages at least will be allowed applies to all actions, whether for tort or breach of contract, and whether the right is personal or relates to property.”

This rule has been expressly abandoned in Illinois in actions predicated upon negligence. It is presently the law of Illinois that a plaintiff must prove actual damage in a negligence case before he can recover. See Jeffrey v. Chicago Transit Authority, 37 Ill.App.2d 327, 336, 185 N.E.2d 384, and note especially the concise statement of the old principle in 37 Ill.App.2d at page 330. The most recent authority which we find upon this subject states that where there was no proof of actual damage in a case involving trespass upon real estate, the court should award nominal damages. (Wetmore v. Ladies of Loretto, Wheaton, 73 Ill.App.2d 454, 467.) We will follow this rule in the case at bar. We will reverse the judgment in favor of defendant and remand the cause to the trial court with directions for the entry of judgment in favor of plaintiff and against defendant for nominal damages.

We state expressly that we are not passing upon any of the constitutional questions raised by plaintiff. Such issues should not be entertained where the cause can be determined on other grounds, as in the case at bar. People v. Fleming, 50 Ill.2d 141, 144, 277 N.E.2d 872; Stigler v. City of Chicago, 48 Ill.2d 20, 22, 268 N.E.2d 26.

Judgment reversed and cause remanded with directions.

BURKE, P. J„ and EGAN, J., concur.

SUPPLEMENTAL OPINION

Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

In a petition for rehearing, defendant has urged that we apply the rule in Jeffrey v. Chicago Transit Authority, 37 Ill.App.2d 327, 336,185 N.E.2d 384, and deny nominal damages. The argument is raised that allowance of nominal damages would bring us back to the old distinction between the ancient forms of trespass and trespass on the case. In support of this position, defendant cites Kane v. Nomad Mobile Homes, Inc., 84 Ill.App.2d 17, 228 N.E.2d 207, to the effect that an action cannot be maintained for an injury without damage. Kane involved application of section 50(2) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 50(2)) to a case in which a jury returned a verdict of no damages as to Count I of a complaint involving breach of contract and allowed substantial damages on Count II involving a tort action against other defendants for procuring a breach of the contract. This court held that the verdict of no damages without the entry of judgment did not constitute a valid judgment so that the case remained pending as to Count I. The decision is not applicable here.

After careful consideration, we adhere to the allowance of nominal damages. We do this not because of any desire to maintain or preserve ancient forms. We find it practical and desirable as well as progressive to preserve the distinction between torts involving negligence, as in Jeffrey, and intentional torts as reflected in the case at bar. It seems fair and proper to vindicate plaintiff’s property rights in a valuable and useful chattel against intentional violation thereof even though plaintiff failed to introduce proper evidence of actual damages. We would classify a citizen’s right to use, possession and enjoyment of his automobile against intentional interference in the same important category as his right to maintain his real estate from intentional trespass as in Wetmore v. Ladies of Loretto, Wheaton, 73 Ill.App.2d 454, 467, 220 N.E.2d 491, or his reputation from intentional destruction as in Lorillard v. Field Enterprises, Inc., 65 Ill.App.2d 65, 78, 213 N.E.2d 1. In all of these instances, the law should grant protection and vindication by allowance of nominal damages. The distinction lies in the infliction of intentional wrong by the tort-feasor not present in Jeffrey but apparent in the case at bar. Consequently, we will not modify the result reached in the original opinion. The petition for rehearing is denied.

Judgment reversed and cause remanded with directions.

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