text:
    In the Matter of the Estate of Anna C. Roth, Deceased, Plaintiff-Appellee, v. Henry R. Roth, Defendant-Appellant.
    Gen. No. 67-132.
    Second District.
    June 20, 1968.

      Murphy & Griffin, of Aurora, for appellant.
    Matthews, Jordan, Dean & Suhler, of Aurora, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

This is a citation proceeding by the Administrator, John Roth, for the recovery of the proceeds of four savings accounts alleged to have been the property of Anna C. Roth, hereinafter referred to as the decedent. After hearing, the court entered an order directing the respondent, Henry R. Roth, decedent’s son, to pay over to the estate the sum of $11,805.16, plus increments. It is from this order that respondent appeals.

The respondent contends that he is the owner of the monies in the joint accounts by reason of an absolute gift of the funds by the decedent prior to her death. However, the respondent contends that in the alternative, in the event there is no inter vivos gift, the evidence establishes a trust of the funds not subject to the claim of the petitioner.

The decedent, Anna C. Roth, died intestate on August 17, 1964, leaving as her survivors, six children, including the respondent and petitioner. Her husband predeceased her having died in 1956. The decedent, by reason of her husband’s death, received certain joint tenancy property by which she created four accounts in three Savings & Loan Associations in Aurora. It is undisputed that all sums used to create these accounts were monies solely and only of the decedent.

The accounts were in the names of Anna C. Roth or Henry R. Roth, or John Roth as joint tenants with right of survivorship. The passbooks were issued and the Savings & Loan Agreements were signed by all the parties. While the agreements were not in identical language, each contained, in substance, the usual language including the right of withdrawal in each of the parties, and survivorship.

In the Home Building & Loan Association, Account No. J690 was opened on March 11, 1957, with a deposit of $15,000 and Account No. 0-3460 was opened on January 2, 1960 with a deposit of $7,500. On March 2, 1957, Account No. 0-6613 was opened in the Improvement Federal Savings Association with a deposit of $8,450. On March 21, 1960, Account No. 16909 was opened in the Aurora Savings & Loan Association with a deposit of $689.31.

On May 2, 1964, the respondent withdrew the balance of Account No. J690 in the amount of $2,016.19. On Jufy 18, 1964, he withdrew from Account No. 0-3460, the balance of $7,668.75, and on the same date he withdrew from Account 0-6613, the balance of $611.65. On July 23, 1964, the respondent withdrew from Account No. 16909, the amount of $139.09, leaving a balance of $5. This account showed a balance of $1,508.57 as of November 22, 1966, representing additional deposits of $50 each made by Frank Roth, a child of the deceased, as payments on a note owed to the deceased.

In 1956, the decedent suffered a heart attack. At that time, the respondent, who is the only unmarried child of six children of the decedent, left St. Joseph’s College, where he was then studying in the seminary, to take care of his mother. From the year 1956 to the date of her death, the only child of the six to take care of the decedent and to reside with her was the respondent. In 1958, the respondent took sole possession of the passbooks and when the subsequent accounts were opened, the respondent had possession of those passbooks.

In 1957, the decedent expressed the intent that the funds in the joint accounts were to be used for her if she needed it when she was sick or if she otherwise needed the funds for her support during her lifetime, and upon her death the proceeds were to be divided equally among her children by the surviving joint depositors to make sure there would be no necessity to probate the funds in her estate. She desired such an arrangement whereby the funds would be immediately accessible to the children in order to avoid lengthy probate proceedings. The estate of the decedent’s husband had been in probate a number of years and the decedent wished to avoid such a complication.

The testimony as to decedent’s intention in opening the accounts did not vary materially. John Roth testified that decedent stated that her purpose in setting up the account was:

“So when she died, we were supposed to see the money was equally divided among the heirs . . . among her children.”

Henry Roth testified that when the accounts were first created, “it was just a matter of convenience.” Both sons testified that when the accounts were created, the withdrawals from the accounts were to be used for their mother’s expenses during her lifetime.

However, in 1962, there was testimony that the decedent expressed a different intention as to the joint accounts when she visited her son, Carl Roth, in Florida. In the late spring or early summer of 1964, the deceased consulted her attorney for the preparation of a will which, however, was never executed. In discussing her assets with the attorney, the deceased never mentioned the joint accounts but spoke only of her property as being interest in real estate. The deceased’s attorney testified that the deceased stated she had “special affection” for the respondent because he stayed home on her behalf and cared for her. At this time, the balance of the joint accounts was approximately $10,000. At the time of her hospitalization which preceded her death, the decedent allegedly told the respondent, “You get that money out of the bank and hold on to it or he is going to grab everything and you won’t have a roof over your head,” and it is acknowledged that when the decedent referred to “he” she was referring to John Roth, the petitioner. She further stated, “that I want the boys to get the money and I want Henry and Carl to have the money and have the home.”

The deceased from the day of her heart attack in 1956 until the date of her death of August 17, 1964, remained continuously unemployed receiving income from a pension and monthly rentals. During this period, the respondent alone made withdrawals determining the amount of any withdrawal which was given to the deceased for her use.

There is no claim of fraud or conversion of any of the funds which the respondent withdrew prior to May 2, 1964, and therefore, the amount in dispute is $11,805.16, plus increments.

The court’s order found that the four accounts in the Savings & Loan Associations were executed in joint tenancy and were set up as a matter of convenience; that by reason of the respondent residing with his mother for many years, he stood in a fiduciary relationship with his mother, and that the burden of proof is on the respondent, Henry R. Roth, to establish a gift inter vivos to him by clear and convincing proof; that all monies belonged to the decedent when the accounts were established and that the respondent had failed to meet the burden of proof of a gift inter vivos to himself and by reason thereof the monies in the joint tenancy accounts belong to the estate; and ordered the respondent to pay over the monies together with increments to the administrator.

The creation of joint accounts in regard to banks and savings and loan associations is expressly governed by statute, to wit, 111 Rev Stats 1955, c 32, § 770, as amended, which contains broad and comprehensive provisions for the creation of rights of survivorship in the case of capital accounts. By statutory provisions referred to, the Legislature has expressly provided for the creation of survivorship accounts in savings and loan associations and has prescribed the method by which accounts can be set up. It is not contested that the joint accounts in the case at bar met the statutory provisions of the statute.

Although joint ownership is set up in conformity with statutory provisions, a court of equity is not thereby foreclosed from looking behind the form of transaction and determining questions of the real and beneficial interest as between the parties. Intent is still held to be controlling, but when the parties have expressed their intent by written agreement by clear and definite terms, the contract cannot be varied or altered unless there is clear and convincing evidence that a gift was not intended. Frey v. Wubbena, 26 Ill2d 62, 70, 185 NE2d 850 (1962).

The court in Murgic v. Granite City Trust & Savings Bank, 31 Ill2d 587, 202 NE2d 470 (1964), on Page 591 said:

“We hold that an instrument creating a joint account under the statutes presumably speaks the whole truth; and in order to go behind the terms of the agreement, the one claiming adversely thereto has the burden of establishing by clear and convincing evidence that a gift was not intended. This burden does not shift to the party claiming under the agreement.”

Applying the foregoing principles to the original account, we come to the conclusion that the presumption of donative intent of the decedent, Anna C. Roth, in creating the joint account was not overcome, but that a gift was intended to all her children as to any of the monies in the account upon her death. The decedent parted with exclusive dominion and control over the subject of the gifts when she voluntarily placed ownership in herself and others through survivorship arrangements. The testimony as to her desires and intentions did not make the gifts void as testamentary dispositions. Frey v. Wubbena, supra, 71, 72; In re Estate of Mueth, 33 Ill App2d 449, 451, 179 NE2d 695 (1962).

The joint tenants, to wit, the respondent and Henry R. Roth, accepted the funds as fiduciaries with an obligation arising out of the confidence reposed in them by their mother to faithfully follow her instructions. We find that the funds in question withdrawn by Henry Roth become impressed with that resulting trust. In re Estate of Habel, 88 Ill App2d 194, 231 NE2d 616.

In Hanley v. Hanley, 14 Ill2d 566, 152 NE2d 879 (1958), the court said on page 571:

“A resulting trust arises by operation of law and is founded on the presumed intent of the parties ascertained from their acts and attendant facts and circumstances, and usually comes into existence where one person furnishes the consideration, or an aliquot part thereof, for the purchase of property while the title is, taken in the name of another, . . . , and it arises, if at all, at the instant legal title is taken and vests. . . . Acts of the alleged trustee or equitable owner subsequent to the taking of the title, have no bearing upon the question of whether a resulting trust was raised. ... To justify the declaration of such trust, the evidence must be clear, convincing, and unmistakable. . . .”

Further, in determining whether the requirements for a resulting trust are present, it is proper to take into account the family relationship of the parties and the informal character of their arrangement. Merschat v. Merschat, 1 Ill App2d 429, 437, 117 NE2d 868 (1954).

The petitioner alleges, and the trial court found, that the funds were set up for the convenience of the deceased. With this we cannot agree. The accounts were set up over a period of eight years and it was the intention of the deceased to avoid probate. If the accounts were set up merely for convenience, the deceased would intend no gift. The petitioner in support of his position cites In re Estate of Schneider, 6 Ill2d 180, 127 NE2d 445 (1955) as authority that these accounts were set up for convenience. It is noted that in Schneider, the decedent said: “I want your name on these bank accounts so that in case I am sick you can go and get the money for me.” This is clear and convincing evidence that no gift of any beneficial interest in the account was intended. In the case of In re Estate of Lackie, 51 Ill App2d 156, 159, 201 NE2d 180 (1964), the decedent telephoned the respondent to come and stay with her because she was not feeling good. The decedent thereafter opened up joint accounts with her half-sister, the respondent. Upon her death, the court held that even though the respondent took care of the decedent during her last illness, the account was not set up for convenience but that the decedent intended to create a joint account with the right of survivorship.

Respondent, however, argues that at a later date the donor changed her intention and made an inter vivos gift of the accounts to him. We believe that the trial court held correctly that respondent failed to establish a gift inter vivos to him by clear and convincing proof. The burden of proof was upon him to show the later gift. This is not to be confused with the burden of proof to overcome the presumption of a gift based upon the joint account as stated in Murgic, supra. The alleged statements of decedent in 1964 do not show an intent to make a gift inter vivos to the respondent, but show to the contrary that the money was not intended as a gift solely to respondent. Pocius v. Fleck, 13 Ill2d 420, 427, 428, 150 NE2d 106 (1958).

Finally, it has been contended that the Probate Court did not have jurisdiction to determine title to the funds under the citation proceedings. We find such jurisdiction pursuant to section 185, c 3, Ill Rev Stats 1967; In re Estate of Peters, 34 Ill2d 536, 539, 217 NE2d 3 (1966).

The order of the Circuit Court is therefore reversed and the cause is remanded with directions to take further proceedings consistent with this opinion.

Reversed and remanded with directions.

ABRAHAMSON, P. J. and DAVIS, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    Donald M. Anderson, et al., Plaintiffs-Appellants, v. Continental Casualty Company, et al., DefendantsAppellees.
    Gen. No. 67-102.
    Second District.
    June 24, 1968.
    Tuite, Shaw, Barden and Morrissey, of Rockford, and Shulman & Baum, of Chicago, amicus curiae, for appellants.
    Reno, Zahm, Folgate and Skolrood, and Miller, Hickey, Collins, Gilbert & Powers, of Rockford, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This case involves the interpretation of a group insurance policy issued by the defendant Continental Casualty Company to the defendant trustees of the Construction Industry Welfare Fund of Rockford, Illinois. The Welfare Fund was established in 1954, pursuant to a collective bargaining agreement between employers in the construction industry and various trade unions in that industry, including Local No. 364 of the International Brotherhood of Electrical Workers. Pursuant to the terms of the collective bargaining agreement, the employers contributed 5<j> per hour (raised to 10^ per hour in 1955) into the fund for each hour worked by an employee. The fund was administered by six trustees, three of whom were designated by the employers and the other three were designated by the union. The purpose of the fund was to procure group health, accident and life insurance for the employees. The trust agreement provided that the employer contributions should be used to pay premiums on policies of insurance, to pay the costs of administering the fund (including the leasing of premises, payment of salaries of administrative and clerical personnel, purchase of supplies, and the like), as well as to accumulate reserves. The agreement further provided that the trustees could, in their sole discretion, invest any funds, which they considered not to be required for current expenditures, in bonds or obligations of the United States Government. The fund was established pursuant to the authority granted by section 302(c) (5) of the Labor Management Relations Act of 1947, 29 USC, commonly known as the TaftHartley Act.

The trustees did procure group insurance from the defendant Continental Casualty Company, and the premiums were paid from the employer contributions. In 1966, Local 364 of the Electrical Workers Union negotiated a new collective bargaining agreement with the employers, pursuant to which, effective May 1, 1966, the employers would no longer make contributions to the fund in question, but would, insofar as the electrical workers were concerned, make the contributions to a new welfare fund having no connection with the fund in question. Pursuant to that agreement, the employers did in fact cease making contributions to the old fund as of that time.

The plaintiffs in this case are members of Local 364, and the basic question is whether they are entitled to insurance benefits from the old fund for claims which arose subsequent to May 1, 1966, at which time their employers were no longer making contributions to the old fund. The reason the question arises is that the claims in question arose during the exclusionary period under the new fund, when plaintiffs were not eligible for the new coverage provided by that fund. Accordingly, if they are not entitled to benefits under the terms of the old policy, their claims are not covered by any insurance at all.

The case was tried in the lower court on an agreed statement of facts, supplemented by some testimony. The trial court held that plaintiffs were not entitled to benefits under the old policy for the claims in question, and they appeal from this determination.

To summarize the positions of the parties, plaintiffs claim that, under the eligibility provisions of the old policy, they are entitled to benefits for the claims in question, even though the claims arose after their union ceased to participate in the old fund and their employers had ceased to make contributions on their behalf to the old fund. The defendant trustees and the insurance company, on the other hand, contend that coverage terminated when plaintiffs’ union withdrew from the fund and the employers ceased contributing on behalf of the plaintiffs.

The matter is not free from doubt, because neither the trust agreement nor the insurance policy states, in so many words, what happens upon the contingency here involved. However, we believe the matter can be resolved by a reasonable construction of the terms of the insurance policy. (The record does not contain the master insurance policy, but only a specimen of an individual certificate of insurance, evidencing the insurance but not necessarily purporting to set forth all terms of the policy. As we will later point out, this is perhaps unfortunate. However, since neither side has raised any question as to the adequacy of this certificate to evidence the actual terms of the policy, we will proceed on the assumption that the certificate is adequate for our purposes.)

We will first consider the positions of the defendants. They rely upon two provisions of the insurance certificate (which we will hereafter refer to as the policy). The first of these provisions is the following:

“Any Employee Member of a Participating Union or a Participating Employer within the various jurisdictions of the Fund, shall be eligible for insurance coverage providing that sufficient Credited Hours have been recorded to his account.”

Defendants take the position that this provision limits eligibility to those employees who are members of a Participating Union or employed by a Participating Employer at the time their claims arise. Even standing alone, we do not believe this language is subject to that interpretation. The provision appears in the introductory portion of the policy, and we think it simply describes the persons who are participating in the fund, without purporting to prescribe the conditions for payment of a particular claim. The quoted provision does not specify what the relationship is between the time of participation and the eligibility for benefits, and this is the crucial question in the case. The provision does provide one specific limitation, namely, that sufficient credited hours have been recorded to the employees’ account, but, as we will see later, the parties agree that the plaintiffs in this case met that requirement.

The other policy provision upon which the defendants rely is the following:

“Individual Terminations
“The insurance of the Insured Person shall terminate: (1) on the date the policy is terminated; (2) as of the premium due date when the Trustees fail to pay the required premium for the Insured Person except as the result of inadvertent error; (3) on the date the Insured Person ceases to be eligible for insurance according to the rules for eligibility established by the Trustees and agreed to by the Company; (4) on the date the Insured Person, if a Dependent, ceases to be a Dependent as defined.”

The foregoing provision sets forth four conditions under which the insurance of an employee is terminated. The first and fourth conditions are not involved here, but defendants rely upon conditions (2) and (3). As to condition (2), the defendants, and especially the insurance company, point out that, as of May 1, 1966, the trustees ceased paying premiums to the company for the plaintiffs. Defendants take the position that, since the trustees did not pay premiums, there should be no insurance. However, this argument begs the question. The policy provides that the trustees shall pay premiums for employees who are eligible, and, if in fact the plaintiffs were eligible, the premiums should have been paid. In our view, the nonpayment of premiums is unavailable as a defense to the insurance company if it is unavailable to the trustees, because, as we will point out later, we believe the trustees were the agents of the company for the purpose of determining eligibility and remitting the required premiums.

We turn now to condition (3) of the above-quoted provision concerning “Individual Terminations.” Defendants contend that, according to this provision, plaintiffs ceased to be eligible when they ceased to be members of a participating union or employees of a participating employer, since membership in one of those categories, by virtue of the earlier provision we have already considered, was a condition of eligibility. We have already pointed out that we do not regard the earlier provision as amounting to such a limitation.

We turn now to the position of the plaintiffs. They rely upon the following language of the policy:

“Determination of Eligibility
“Eligibility for Benefits shall be determined at the time a claim is adjusted and the benefits shall be based on the number of hours credited to a Member’s account within a specific period of time preceding the month in which the disability or death occurs.
“This determination of eligibility shall be called a test. Any Member of the Fund who was not eligible as of August 1, 1965 under the Rules then in effect shall be considered a new Member in the Fund when filing claims — whether for Accident, Illness, Death Benefits or continuous eligibility for Free Coverage.
“Tests
“The following tests shall be applied to determine the class of benefits (other than Life Insurance) for which a Member is eligible — the tests are made in the following manner in order to provide the greatest amount of benefits available to the Member:
“Test 1
“The first test of eligibility shall be to determine if at least 1800 Credited Hours had been accumulated during the first 12 months of the 13 month period immediately preceding the month during which the disability occurred.
“Members satisfying this test shall be eligible for Class A Benefits.
“Test 2
“The second test of eligibility shall be to determine if at least 1,200 but not more than 1,799 Credited Hours had been accumulated during the first 12 months of the 13-month period immediately preceding the month during which the disability occurred.
“Test 3
“The third test of eligibility shall be to determine if at least 780 Credited Hours had been accumulated during the first 7 months of the 8 month period immediately preceding the month during which the disability occurred.
“Test 4
“The fourth test of eligibility shall be to determine if at least 390 Credited Hours had been accumulated during the first 3 months of the 4 month period immediately preceding the month during which the disability occurred.
“Members satisfying tests 2, 3 or 4 shall be eligible for Class B Benefits.
“Test 5 (NOTE: This test shall determine All Class D Benefits including Life Insurance)
“The fifth test of eligibility shall be to determine if at least 1,200 Credited Hours had been accumulated during the first 17 months of the 18 month period immediately preceding the month during which the disability occurred.
“Members satisfying this fifth test only, shall be eligible for Class D Benefits.”

It is stipulated in the agreed statement of facts that all of the plaintiffs were eligible for benefits under either Test 1 or Test 2 above. That is, each of the plaintiffs had either (1) at least 1,800 credited hours during the first twelve months of the thirteen-month period immediately preceding the month of his disability, or (2) at least 1,200 credited hours during the first twelve months of the thirteen-month period immediately preceding the month of his disability.

A “credited hour” for an employee, under the terms of the policy, is an “hour of his employment as reported by his employer (s) to the Fund Office and for which contributions at the rate required by the Collective Bargaining Agreement have been received by the Fund.” The policy specifies the various classes of benefits, and, as one would expect, the scope of benefits decreases as the credited hours decrease.

Plaintiffs take the position that, since they had accumulated the necessary number of credited hours in relation to the claims they now assert, they are, by virtue of the foregoing eligibility provisions, entitled to benefits notwithstanding the fact that they are no longer participating in the fund. We agree with their contention. We find nothing in the policy, nor in the trust agreement, which indicates that an employee’s right to benefits terminates under the conditions here presented, so long as he has the necessary credited hours. We believe that the foregoing eligibility tests make it reasonably clear that the important factor is simply the number of credited hours the employee has accumulated. From the contributions represented by those hours, the trustees were obliged to make premium payments to the insurance company for the employee. If it had been intended to terminate an employee’s eligibility for benefits when he was no longer employed by a participating employer, or a member of a participating union, the policy could have so provided in express terms. We find it significant that, even in the “Individual Termination” section of the policy, quoted above, there is no such provision. Condition (3) of that section states that an employee is terminated when he “ceases to be eligible for insurance according to the rules for eligibility established by the Trustees and agreed to by the company.” Construing this language in the light of the policy as a whole, we believe that condition (3) refers to the inability of a person to meet one of the five “tests” of eligibility quoted above.

The defendants argue, and the trial court adopted the argument, that current employer contributions are used to pay premiums to provide current coverage. Thus according to this argument, since no contributions were made by the employers after May 1, 1966, there could have been no premiums paid and no coverage afforded after that time. However, this argument is not supported by the record and is, we think, belied by the entire scheme of eligibility tests set forth in the policy. If current claims can be paid only from coverage afforded by premiums paid from current contributions, we fail to see what purpose the elaborate eligibility tests would have. Moreover, the record establishes that, in actual practice, there has been no strict correlation between current employer contributions, current premium payments and payment of current claims. It appears that the administrator of the fund pays the premiums to the company of a monthly basis, based upon the “estimated” number of employees currently eligible for coverage. Under the terms of the policy, employer contributions to the fund are not even credited to the employee for the month in which he did the work upon which the contributions were based:

“Hours contributed . . . shall be recorded for the month previous to the month in which they are received by the Fund. Postmark date will be considered if it has bearing on the recording date. For example: Hours worked in June and July but not received until October, will be recorded as having been worked in September.”

Although there is testimony by the fund admininstrator that premiums were sent to the company monthly, the record is silent as to what period, of coverage is acquired by a particular premium payment. The insurance policy says nothing about the relationship between premiums and periods of coverage, and the reason for this would seem to be that the question is answered simply by reference to the eligibility tests. In other words, if an employee has sufficient credited hours to meet a particular test, he is entitled to coverage of the classification corresponding to that test. We can only assume that the amount of the premiums established by the insurance company are sufficient to provide the kinds of coverages applicable to each of the tests.

The record does not disclose how much money there is in the fund. The trust agreement, in providing for the payment of administration expenses, the accumulation of reserves and the investment of money in government bonds, clearly contemplates that employer contributions will exceed the amount needed for premium payments. This is another factor which leads us to the conclusion that there is no merit to defendants’ contention that current coverage must depend upon current contributions.

To summarize our analysis of the insurance policy, we believe that the “eligibility tests” clearly disclose an intention to provide prospective insurance coverage based upon past contributions to the fund, with the extent of the coverage depending upon the extent of the past contributions. The provisions relied upon by defendants, especially when read in the light of the eligibility tests, do not, in our opinion, lend themselves to the interpretation that an employee forfeits his accumulated hours when contributions cease. Finally, our conclusion is fortified by the fact that in the portion of the policy dealing specifically with individual terminations, there is no provision for termination without regard to past contributions when an employee ceases to be a member of a participating union or employed by a contributing employer.

Our interpretation of the policy is consistent with what the prior understanding of the defendants apparently has been. The record discloses that, in at least one previous instance, with no objection by anyone, insurance benefits were paid to employees for claims which arose after they had terminated their employment with a participating employer and after contributions on their behalf had ceased. The administrator of the fund, testifying under section 60 of the Civil Practice Act, testified that the practice of the Fund Office had been to pay claims simply on the basis of whether or not the claimant met one of the tests of eligibility, without regard to his current employment status. He pointed out that construction workers are engaged in a type of work where they might change jobs frequently and encounter substantial periods of unemployment. The eligibility rules were apparently designed with those factors in mind.

We hold, therefore, that, since it is agreed that plaintiffs met the required eligibility tests, the trustees should have paid the necessary premiums to afford them coverage for the claims in question. Under the terms of the trust agreement, the trustees had the duty to pay the necessary premiums.

The only remaining question is whether the defendant insurance company is liable to the plaintiffs, assuming that the premiums had not been paid. (Both sides assume that the premiums were not paid. In view of what we have said about the somewhat indefinite relationship between premiums and current contributions, we would not be so quick to make that assumption. The record does not even disclose when the claims in question arose.) The evidence is clear that the insurance company delegated all administrative functions concerning the insurance to the defendant trustees. The trustees made all determinations concerning eligibility, provided the claim forms to claimants, determined the amount of benefits to be paid, and actually paid the claims by issuing drafts on forms provided by the insurance company. Under these circumstances, we have no hesitation in concluding that the trustees were the agents of the insurance company for purposes of remitting the required premiums to the company. If the trustees did in fact fail to remit the premiums which would have provided the coverage in question, their failure to do so is chargeable to the defendant insurance company and cannot be relied upon by the company to escape liability. Patterson v. John Hancock Hut. Life Ins. Co., 27 Ill App2d 135, 143-144, 169 NE2d 183 (1960).

For the foregoing reasons, the judgment of the lower court is reversed and the cause is remanded for entry of a new judgment order in conformity with the views expressed in this opinion.

Reversed and remanded.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


author: JUSTICE LYONS.

text:
    People of the State of Illinois Plaintiffs-Appellee, v. George C. Culver, Defendant-Appellant.
    Gen. No. 51,040.
    First District, Second Division.
    June 4, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn, Carolyn Jaffe, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Anthony J. Onesto, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Stroup, Defendant-Appellant.
    Gen. No. 68-7.
    Second District.
    June 17, 1968.
    Rehearing denied August 14,1968.

      William N. Stone, of Sterling, for appellant.
    Henry S. Dixon, State’s Attorney, of Dixon, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant appeals from his conviction, upon a plea of guilty to the offense of theft, urging that the court erred in denying probation and in imposing a sentence of two (2) to four (4) years in the penitentiary.

The theory of defendant is that the sentence was excessive in view of the sentences imposed upon his co-defendants and in view of the age and previous record of this defendant. Reduction in sentence is sought. The State responds that in view of the role played by the defendant in the theft, his past record, and the fact that the sentence was within prescribed limits, the sentence should not be reduced.

There was a hearing in aggravation and mitigation and upon defendant’s motion for probation. At this hearing facts were adduced concerning a theft of sixteen television sets from defendant’s employer, the Admiral Corporation, at its Dixon, Illinois, warehouse. Defendant testified that one Ed Williams, who had a business in Sterling, Illinois, approached him and a codefendant, Baughman, and suggested “he could handle merchandise from Admiral.” Lester Goers and Dale Meiners, co-defendants, overheard defendant and Baughman talking and asked to get in on the planned theft and offered a pickup truck. On the evening of May 18, 1967, Stroup, Meiners, Baughman and Goers went to the Admiral Corporation warehouse, and while Stroup engaged the guards in conversation, Baughman entered the basement and handed Goers and Meiners sixteen television sets through a basement window. Goers and Meiners placed the items in the pickup truck and unloaded them in Sterling where defendant Stroup turned them over to Williams for approximately $800.

Defendant further testified that he was twenty years old and a high school graduate; that when he was fourteen he was convicted for cutting a convertible top and placed on probation; that when he was seventeen he was convicted of stealing gasoline and again placed on probation; and that at various times he had been arrested and fined for liquor violations and for speeding.

Defendant had gone to work for Admiral fourteen months previously. He admitted at the hearing that he and Baughman had previously taken twelve phonographs and two boxes of speakers from Admiral and turned them over to Williams. After the theft in question he, with Baughman, took three additional television sets from Admiral and disposed of them.

The statements of defendants, Meiners and Goers, were introduced. Meiners and Goers stated that they received fifteen dollars each as their part from defendant and Baughman.

Defendant’s father testified favorably to his son’s character.

Goers and Meiners were granted probation with two weeks’ confinement in the county jail. Baughman at a subsequent separate hearing was granted probation with the first sixty days to be spent in the county jail. The transcript of record does not reveal any reference to previous criminal records of any of the codefendants.

Defendant relies upon People v. Freeman, 49 Ill App2d 464, 200 NE2d 146 (1964) and People v. Steg, 69 Ill App2d 188, 215 NE2d 854 (1966). In Freeman the defendant was granted probation on robbery charges while his codefendants were sentenced to the penitentiary for 1 to 3 years. Upon a subsequent revocation of Freeman’s probation he was sentenced to 10 to 20 years. In reducing the sentence to 4 to 10 years, the Appellate Court referred to the fact that the other defendants had received “substantially smaller sentences” from the trial court.

In Steg, the defendants, Steg and Bravo, were sentenced to 5 to 20 years upon a plea of guilty to the offense of armed robbery. A third defendant, Witt, was sentenced to 2 to 10 years, to run consecutively with a previous 2 to 10-year sentence imposed upon him in Iowa. Witt was shown to be the instigator of the crime. The defendants, Steg and Bravo, had only disorderly conduct and traffic violations on their records. Witt had been sentenced first, and in sentencing Steg and Bravo the trial court specifically stated that he had made a mistake in sentencing Witt and wasn’t going to make “a mistake likewise” in sentencing these defendants. The Appellate Court, under these circumstances, reduced the sentences of Steg and Bravo to 2 to 10 years, stating in its opinion that if all of the defendants had been sentenced to 5 to 20 years it would not have interfered with the sentence.

Neither of the cited cases, in our opinion, provide a basis for a reduction in sentence on this appeal under the provisions of chapter 110A, § 615(b), Ill Rev Stats 1967 (Supreme Court Rule 615). In both the Freeman and Steg cases, supra, the record was devoid of any evidence which could account for the disparity in sentencing. Here, the record furnishes a basis for the different sentence imposed upon defendant than that imposed upon each of his codefendants. Defendant was the main instigator of the crime with Baughman. He was an employee who could impose upon his position and decoy the guards. He had a previous record of unsuccessful attempts at rehabilitation through probation, while the record is silent as to any previous offenses by Baughman. The remaining defendants had no previous record and were not instigators or planners of the crime, nor participants in other thefts as were defendant and Baughman.

We find no abuse of the trial court’s discretion justifying interference with a sentence which is within statutory limits and not disproportionate to the nature of the offense. People v. Smith, 14 Ill2d 95, 98, 150 NE2d 815 (1958); People v. Conway, 85 Ill App2d 165, 174, 228 NE2d 548 (1967); People v. Johnson, 68 Ill App2d 275, 281-282, 215 NE2d 144 (1966).

Defendant has made the statement in Brief and in oral argument that the trial court did not make available a probation report for his inspection, and none is found in the record. Both sides have agreed before this court that the trial judge did have a probation report before him at the hearing. We believe the better practice would be to make such a report available to a defendant and to incorporate it into the record so as to give the reviewing court as complete as possible a view of the matters relied upon by the sentencing judge. People v. Smice, 79 Ill App2d 348, 354, 223 NE2d 548 (1967). However, in this case there was a full hearing in aggravation and mitigation and upon defendant’s motion for probation with no denial of defendant’s introduction of any mitigating circumstances he could propose. The evidence taken at the hearing including defendant’s own testimony apprised the court of the salient elements necessary to make an intelligent determination of the proper sentence to be imposed and there is nothing in the record to indicate that the disclosure of the probation report could have materially affected the result. People v. Hamby, 6 Ill2d 559, 566, 129 NE2d 746 (1955); People v. Lyons, 61 Ill App2d 340, 346-347, 210 NE2d 552 (1965).

Finally, in his Brief and Argument defendant questions whether “it is permissible to include in the record on appeal the jointly executed opinions of the State’s Attorney and the Trial Judge under the heading of ‘Official Statement to the Department of Public Safety’ . . . without notice to appellant or his counsel.” The legislature has provided for such a report to be submitted by the prosecuting attorney and forwarded to the warden. Ill Rev Stats 1967, c 108, § 152. No prejudice to the defendant is evident in the inclusion of the report and we find no error in this respect. The joinder of the trial judge in the statement and its inclusion in the record is, moreover, salutary in providing a statement in this record of his reasons for the particular sentence.

We therefore affirm.

Affirmed.

ABRAHAMSON, P. J. and MORAN, J., concur.


author: TRAPP, J.

text:
    Riley Still, Plaintiff-Appellant, v. Bernadine Still, Defendant-Appellee.
    Gen. No. 10,921.
    Fourth District.
    June 19, 1968.

      Brice Irving, Grigsby & Irving, of Pittsfield, for appellant.
    Schimmel & Schimmel, of Pittsfield (A. W. Schimmel, of counsel), for appellee.
   TRAPP, J.

The plaintiff, Riley Still, appeals from a decree which denied his complaint for divorce alleging desertion, and which granted a divorce upon his wife’s counterclaim alleging cruelty and adultery. The decree awarded alimony in gross in the sum of $10,000 to be paid in semiannual installments of $1,000.

Neither pleadings nor decree are contained in the abstract, or additional abstract presented, and it appears that only portions of the testimony are included. As a result the issues are difficult of precise definition.

Plaintiff urges error in the determination by the court of the claims of the parties concerning the alleged cruelty charged in the counterclaim, and the denial of divorce upon the allegations of desertion. Upon the first point, the testimony of the wife is corroborated by the testimony of the two children of the parties. As to the latter point, the only testimony is that of plaintiff and his wife. Plaintiff argues that his testimony is unimpeached. While technically true, such testimony is, however, contradicted by other witnesses upon the facts at issue. Here the trial judge observed the witnesses in their respective manners in testifying. It is axiomatic that he has the superior means to measure credibility. The appeal presented does not persuade that his findings were contrary to the manifest weight of the evidence.

It is urged that the trail court erred in denying plaintiff’s defense of condonation to the alleged acts of cruelty. To speak precisely, there is no such defense presented in the abstract. There is a fragment of testimony by plaintiff which might constitute a claim of acts of condonation, but such were denied by the wife. The trial court commented upon such testimony in the light of the circumstances in evidence, and again, he made a determination of credibility. He also considered the testimony in the light of conduct which would revive the original grounds of the wife for relief.

Finally, it is contended that the amount of alimony in gross is so excessive as to require plaintiff to divide and sell his farmland. As noted by the trial court, there is little evidence to support such argument. The propriety of alimony in gross is not actually raised in this appeal. Schwarz v. Schwarz, 27 Ill2d 140, 188 NE2d 673. Plaintiff testified that he had offered his wife $3,000 in settlement of all her rights and claims. Upon argument here he states that $5,000 would be an acceptable amount of alimony.

The parties were married in 1944 and have two children, who live away from home. The wife is 44 years of age and has been a farm wife for practically all her adult life. Since the separation she has worked as a babysitter and as a waitress, earning $27 a week. The plaintiff owns 250 acres of substantially tillable land in Brown and Adams Counties, as well as an undisclosed amount of livestock. The value of the farmland is a matter of dispute in the record, and only plaintiff’s opinion sustains his claim of minimal value. There is some evidence he farmed, or has farmed, other land as a tenant during the years. The record shows nothing concerning his annual income.

In awarding the alimony the facts to be weighed are the means and needs of the parties. It has been held that excessiveness of alimony in gross is not determined by comparison with annual income, for the responsibility of the spouse for support and maintenance terminates with the payment of the same award. Schwarz v. Schwarz, 27 Ill2d 140, 188 NE2d 673; Katauskas v. Katauskas, 67 Ill App2d 33, 213 NE2d 420. If the amount of alimony in gross is, in fact, excessive, such is not demonstrated in the record presented.

The judgment of the court below is affirmed.

Affirmed.

SMITH, P. J. and CRAVEN, J., concur.


author: CRAVEN, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Roscoe Keeney, Defendant-Appellant.
    Gen. No. 10,958.
    Fourth District.
    June 19, 1968.

      Emerson Baetz, of Alton, for appellant.
    No brief filed or appearance made by appellee.
   CRAVEN, J.,

delivered the opinion of the court.

The defendant-appellant was convicted in a bench trial of the crime of intimidation. (Ill Rev Stats 1965, c 38, § 12-6.) This appeal is from the conviction and the fine imposed of $25 and costs.

Briefly, the facts indicate that the defendant had purchased, apparently under a contract for deed, some lots in a subdivision known as Crystal Lake Subdivision in Jersey County. The testimony indicates that the title to the subdivision was held in a corporation and the corporation, in turn, was owned by two persons, a Mr. and Mrs. Randolph. The defendant received a notice of forfeiture of his interests under the contract by reason of nonpayment of the specified contractual payments. Defendant was of the firm impression that his payments were not only current but were more than required, and he insisted that he had made the payments to a person described as manager of the subdivision. This controversy between the parties resulted in a visit by the defendant to Mr. and Mrs. Randolph in April of 1966 and a demand by him that his prior payments be refunded. When this demand was rejected by the Randolphs, the defendant is alleged to have made certain threatening statements, threatening bodily harm to the Randolphs and to their property, including the subdivision.

The trial court, after making a summary recitation of the evidence, found the defendant guilty, although he expressed the thought that “I am not too well satisfied about it. . . .” He then pointed out, however, that one disinterested witness, by his testimony, established the fact of the verbal threats.

The issues on this appeal relate to the sufficiency of the evidence to establish the crime of intimidation and the defendant’s guilt beyond a reasonable doubt. Unfortunately, there is no brief in this court on behalf of the People. We agree with the language of the court in People v. Spinelli, 83 Ill App2d 391, 393, 227 NE2d 779 (2nd Dist 1967), that the absence of such a brief leaves this court in the dual role of advocate and judge, a position abhorrent to any court. The failure of the People to file a brief here, as in Spinelli, leaves the judgment of the trial court without the support of brief and argument to which it is justly entitled.

Supreme Court Rule 341 (Ill Rev Stats 1967, c 110A, § 341) and its predecessor rule contemplate the filing of an appellee’s brief. Failure to file the brief is an unfortunate circumstance. While we are not required to dismiss an appeal for failure to file a brief, in certain instances it may be appropriate, where the appellant has complied with all of the requirements to perfect an appeal and the appellee has done nothing, to reverse the judgment appealed. Although, in certain instances, this court may well determine that justice requires a decision of the case on the merits notwithstanding the failure of the appellee to file a brief, we deem it to be a matter within the sound discretion of this court. See Morella v. Melrose Park Cab Co., 65 Ill App2d 175, 212 NE2d 106 (2nd Dist 1965); Ogradney v. Daley, 60 Ill App2d 82, 208 NE2d 323 (1st Dist 1965).

The judgment of the circuit court of Jersey County is reversed.

Judgment reversed.

SMITH, P. J. and TRAPP, J., concur.


author: MR. JUSTICE DAVIS

text:
    Paul C. McEwen and James N. Canton, Plaintiffs-Appellees, v. James Roberts Walsh and Lew Billingsley (James Roberts Walsh, Appellant), Defendants-Appellants.
    Gen. No. 67-129.
    Second District.
    June 24, 1968.

      Ezra L. D’Isa, of Waukegan, for appellants.
    Snyder, Clarke, Dalziel, Holmquist & Johnson, and Leo J. Sullivan, III, of Waukegan, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This was an action at law to recover both actual and punitive damages, each in the sum of $10,000. The jury returned verdicts for the plaintiffs, and assessed actual damages against the defendant, James Roberts Walsh, in the sum of $10,000, and likewise assessed punitive damages against him in said amount. The judgment order entered by the court found that the jury answered a special interrogatory that Walsh was guilty of malice, and adjudged that the plaintiffs recover damages from him in the sum of $20,000, together with costs. The defendant Walsh appealed.

The plaintiffs, by their complaint as amended, asserted that they were defrauded of $10,000 by the defendants, and they prayed for judgment in the sum of $10,000, with interest and costs, and for the additional sum of $10,000 as punitive damages. The defendant Walsh answered the complaint, generally denied the charges of fraud and asserted certain affirmative defenses, including an allegation that the $10,000 in question was to have been, and was, used for a specific purpose, which was known to the plaintiffs, and that it was not retained by him. Plaintiffs filed a reply which denied these defenses, and no question is raised on appeal with reference to the pleadings.

The issue presented on appeal is whether it was proper to submit to the jury the question of punitive damages. The defendant urges that punitive damages are unconscionable in modern jurisprudence, and that such damages are untenable, absent proof of defendant’s pecuniary status.

The plaintiffs assert that punitive damages, under the circumstances of this case, are an appropriate remedy, and that the defendant did not raise in the trial court the point of lack of proof regarding the defendant’s peeuniary circumstances, and, consequently, the point cannot now be raised for the first time on appeal.

In Madison v. Wigal, 18 Ill App2d 564, 153 NE2d 90 (1958), we stated at pages 571 and 572:

“Exemplary damages, punitive damages, and vindictive damages are synonymous, (citation). Punitive damages have always been recoverable at common law. Punitive damages incidentally punish the party against whom they are assessed, but their primary purpose is a warning to deter such a party and others from committing acts similar to those for which the damages are awarded. Punitive damages are not compensatory although they cannot be awarded unless actual damage is shown, (citation). Punitive damages are recoverable only when the conduct complained of is accompanied by certain aggravating circumstances, singularly or in combination. Such aggravating circumstances include wantonness and wilfulness, (citation); mailce, (citation); fraud, (citation); oppression, (citation) violence, (citation) , and recklessness, (citation).
“The rule is, that to authorize the awarding of punitive damages, either malice, violence, oppression or wilful and wanton misconduct must be present in the controversy. (Citations.)”

In Smith v. Hill, 12 Ill2d 588, 598, 147 NE2d 321 (1958), the court held that punitive damages are allowed in the interest of society, and are not allowed for the sole purpose of recompensing the individual. Thus, it is evident that punitive damages are recognized in proper situations under Illinois law, (Smith v. Hill, supra; Holmes v. Holmes, 64 Ill 294, 298 (1872); Madison v. Wigal, supra) and we so hold. The case at bar was an action for fraud in which the jury found that the defendant was guilty of malice. It is within the category of cases wherein punitive damages may be assessed.

We agree with the plaintiffs that a point not presented to, or considered by the trial court, cannot be raised for the first time on review. Bremer v. Bremer, 4 Ill2d 190, 192, 122 NE2d 794 (1954); McMillen v. Rydbom, 56 Ill App2d 14, 28, 205 NE2d 813 (1965).

The rationale of this rule is found in the requirement that courts afford an orderly and fair procedure to all litigants. If an issue is first presented in the reviewing court by one party litigant, the opposing party is precluded from pleading to such issue and from offering evidence thereon. This circumstance strikes at the orderliness and fundamental fairness of the court’s procedures. It also deprives the trial judge of an opportunity to consider a point or issue prior to action by the reviewing court. In fairness, the trial judge should be afforded such opportunity before his judgment or rulings are reversed.

The defendant contends that his post-trial motion which alleged that the verdicts were contrary to the law and the evidence and that “there is no competent evidence to support the verdicts,” raised at the trial level the issue of lack of proof regarding the defendant’s pecuniary circumstances, as well as the propriety of the court submitting to the jury the special interrogatory on whether the defendant was guilty of malice. We cannot agree with this contention.

Section 68.1 (2) of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 68.1(2)), provides in pertinent part:

“The post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof, and must state the relief desired, as for example, the entry of a judgment, the granting of a new trial or other appropriate relief. Relief sought in post-trial motions may be in the alternative or may be conditioned upon the denial of other relief asked in preference thereto, as for example, a new trial may be requested in the event a request for judgment is denied. A party may not urge as error on review of the ruling on his post-trial motion any point, ground or relief not particularly specified in the motion.”

This provision was designed to require parties in their post-trial motions to specifically set forth the ground or grounds upon which the motion is based. Its purpose, among other things, was to prevent the moving party from hiding behind a general objection in the trial court and for the first time raising with particularity in the reviewing court an objection that had not been argued before the trial judge.

In Lawler v. Pepper Const. Co., 33 Ill App2d 188, 178 NE2d 687 (1961), at page 195, in considering the application of section 68.1, the court pertinently stated:

“The post-trial motion was also deficient in another respect; it did not specify the evidentiary point which the defendant now advances as its fourth reason for reversal. The only objection appertaining to this point in the motion was this: ‘The court erred in admitting incompetent, irrelevant and immaterial evidence over the objections of the defendant.’ This was a general objection and it failed to comply with the statutory requirement that all grounds for a new trial be particularly specified in the post-trial motion. Ill Rev Stat, c 110, par 68.1 (1959). A party cannot raise on appeal alleged errors concerning the admission or rejection of evidence unless these errors were asserted with particularity in the post-trial motion. Perez v. Baltimore & O. R. Co., 24 Ill App2d 204, 164 NE2d 209.”

Also see: Richman Chemical Co. v. Lowenthal, 16 Ill App2d 568, 572, 573, 149 NE2d 351 (1958).

In the case at bar, the specifications in the defendant’s post-trial motion do not cover the issues under consideration which he seeks to raise in this court.

In view of our conclusions, we affirm the judgment of the trial court.

Judgment affirmed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


author: ALLOY, P. J.

text:
    Gerald Morrison, for the Use and Benefit of Rose M. Morrison, et al., and Rose M. Morrison, Individually, Plaintiffs-Appellants, v. Ernest Mitchell, DefendantAppellee.
    Gen. No. 67-33.
    Third District.
    July 8, 1968.

      Mark P. Meers and Joseph Duffy, of Joliet, for appellants.
    Peter H. Lousberg, of Rock Island, for appellee.
   ALLOY, P. J.

This is an appeal from a judgment of the Circuit Court of Will County in favor of defendant, Ernest Mitchell, as against plaintiffs following a jury verdict for defendant in a dramshop action. Action was instituted under the Dram Shop Act for loss of means of support. The case was tried by a jury on the issue of liability alone.

The facts as disclosed from the record indicate that Gerald Morrison (the alleged intoxicated individual) on Easter Sunday, April 14, 1963, spent the day at his mother-in-law’s home beginning about 1:30 p. m. The Morrison family consisted of Gerald Morrison, the father, his wife Rose Morrison, and four children ranging in ages from 4 up to 12 years of age. After a family dinner around 2:00 p. m., Gerald Morrison apparently consumed about four bottles of beer and two shots of whiskey at the home. Sometime early in the evening between 6:30 and 8:30 p. m., Gerald Morrison took his wife and children home and then left, intending to go to a Henry Gebhart’s home. On his way to such home, Morrison stopped at the tavern of the defendant Ernest Mitchell (about 8:30 p. m. according to the testimony of Morrison but between 5:30 and 6:00 p. m. according to the bartender on duty). While at the tavern, Morrison had about a glass and a half of beer according to his testimony. The evidence of defendant indicated that Morrison appeared to have been drinking but did not appear to be totally intoxicated; that he had about enough to “wander home.”

There was testimony on the part of Morrison that he got some carry-out beer from a self-service cooler in the tavern. There was direct evidence that there was no self-service cooler in the tavern and carry-out beer was in a cooler behind the bar which was not accessible to customers and could only be reached by going through a separate room which had a door entering the back portion of the bar. The door was kept locked. Morrison stated that upon leaving the tavern he had purchased the quart of beer referred to and went to the Gebhart home. Gebhart stated that Morrison arrived at his home about 8:00 p. m. with a quart of beer. Morrison stayed in the Gebhart home about 20 minutes during which time each of the parties had a can of beer. Gebhart stated that in his opinion Morrison was intoxicated.

After Morrison left the Gebhart home he was unable to recall anything else until he woke up in a hospital. His loss of memory was attributed by plaintiffs to injuries he received in the accident referred to in this opinion. Morrison was found unconscious by a police officer in his automobile which was up against a utility pole in the City of Joliet on a four-lane blacktopped street. The streets were dry during the period after Morrison left the Gebhart home and the time of the accident. There was no evidence of tire or skid marks and there was no other automobile in the vicinity which appeared to have been involved in the accident. A nurse at the hospital noted that Morrison was incoherent and that there was a strong alcohol odor upon him. There was evidence, by defendant, that the incoherency which Morrison suffered could be a symptom caused by the head injuries without any alcoholic beverages having been consumed.

On appeal in this Court, plaintiffs contend that the verdict was against the manifest weight of the evidence, and that the verdict was a result of prejudice caused by improper statements of law made by defense counsel in closing arguments.

The courts of this State have repeatedly reiterated that a jury verdict will not be reversed on the basis of manifest weight of the evidence unless the opposite conclusion is indisputable. In this connection the ruling by a trial court on the manifest weight of the evidence is accorded great weight and a court is reluctant to reverse except for an abuse of discretion under such circumstances. A court of review does not weigh evidence or pass on the credibility of witnesses (Pozdro v. Dynowski, 83 Ill App2d 79, 226 NE2d 377). In the cause before us there was no direct evidence as to the cause of the accident. The manner in which the accident may have occurred was in dispute, and the jurors in reaching their verdict, apparently believed the version contended for by defendant. The jury and the trial judge both had an opportunity to hear the witnesses directly and on review these factors must be given substantial consideration (Jenkins v. Hechtman, 83 Ill App2d 72, 76, 226 NE2d 383).

We note that in the cause before us the evidence was disputed and several alternative inferences were possible. We cannot say that there was no basis in the evidence to support the jury verdict even though the court itself might have reached an opposite conclusion (Kitten v. Stodden, 76 Ill App2d 177, 221 NE2d 511). The jury had the opportunity to hear the direct testimony of Morrison and to review such contradictions and inconsistencies as may have been noted in his testimony. We are also aware of the fact that in addition to the disputed and conflicting testimony there was actually no direct evidence as to how the accident occurred. The only evidence was that of a police officer who found the Morrison car against the telephone pole at about 10:20 p. m. with Morrison suffering from a head injury. This was at least two hours after Morrison left the Gebhart home. There was no evidence in the record of what Morrison had been doing during that period of time. Under the facts and circumstances, the jury could have inferred that Morrison was not intoxicated. We could have sustained a verdict of the jury finding that intoxication was the cause of the accident, had the jury so concluded, on the record in this case. The finding of the jury, however, that defendant was not guilty could have been based on facts and inferences of record, and, consequently should not be disturbed on review.

The second argument made was that the comment in closing argument by attorney for defendant was sufficiently prejudicial to justify a reversal. The jury was instructed in this case, as is usually done, that, in determining the credit to be given to any witness, it could take into account his ability and opportunity to observe, his memory, his manner while testifying, and any interest, bias or prejudice he may have. It was incorporated in the Illinois Pattern Jury Instruction 2.01. During the course of the final argument, counsel for defendant asserted (inadvertently, defense counsel states) that Morrison was trying to get “some money in this case eventually.” The attorney for plaintiff objected at that point that it was a misstatement of law on part of defense counsel. This was recognized and admitted by defendant’s counsel immediately and he apologized and stated that Morrison is “not able in this case because of the law, to himself personally get any gains or rewards. It is his family who is the plaintiff, his wife and children who are plaintiffs in this case.” Defendant then went on to say that Mr. Morrison had a direct interest in the case. He predicated this on the contention that if plaintiffs were successful there would be a large portion, if not the entire portion, of Gerald Morrison’s medical bills paid and also on the basis that damages were requested for loss of means of support. As the record discloses, the attorney for defendant recognized his misstatement of law, apologized for it, and in his explanation told the jury why it was erroneous. There was no repetition of this misstatement after the apology. We see no basis for reversal since the misconduct was not persisted in after objection and in view of the fact that plaintiffs’ objection was sustained and defendant acknowledged the error and apologized promptly as indicated herein (Wells v. Gulf, M. & O. R. Co., 82 Ill App2d 30, 226 NE2d 662).

Since we find no reversible error in this cause the judgment of the Circuit Court of Will County will, therefore, be affirmed.

Affirmed.

STOUDER and SCHEINEMAN, JJ., concur.


author: HOFFMAN, J.

text:
    Central Illinois Light Company, Petitioner-Appellant, v. Mary Allen Porter, et al., Defendants-Appellees.
    Gen. No. 67-34.
    Third District.
    June 3, 1968.
    Rehearing denied July 31,1968.
    O’Hern, O’Hern & Wombacher, of Peoria, for appellant.
    Walter D. Boyle and Linn Goldsmith, of Hennepin, and William J. Wimbiscus, Jr., of Spring Valley, for appellees.
   HOFFMAN, J.

This is an appeal from a jury award of condemnation damages.

The petitioner, Central Illinois Light Company, brought condemnation proceedings against defendants to secure sites for three steel towers and an easement 120 feet in width for an electric transmission line. The defendants filed cross-petitions for damages to their property not taken. The matter came on for trial. Appraisal witnesses for both sides testified that the highest, best and only use of defendants’ property was for duck hunting purposes. The jury viewed the premises.

The jury awarded separate damages for the tower site, the balance of the easement strip, and the land not taken outside the easement strip. There is no quarrel as to the amounts for the tower sites. With regard to the balance of the easement strip, the defendants’ appraisers testified that there would be a total taking (i. e., that the easement would have no fair cash value after construction of a power line), and the jury’s verdict indicated that this view was adopted. With regard to defendants’ lands outside the easement strip, petitioner’s appraisers testified that there would be no damages, while defendants’ appraisers testified to considerable damage. The jury awarded damages, but substantially below the figures given by defendants’ appraisers.

It is petitioner’s position on this appeal that, so far as the easement strip is concerned, the residual remaining must be of some value, and that, regarding the land not taken, damages thereto are purely speculative and rest upon no objective basis.

The land involved is marsh and overflow land in the Illinois River bottoms. There appears to be no question but what the land was visited by multitudes of wild ducks during their fall migratory flights. It was agreed that this property’s only use was for duck hunting purposes and that duck hunting lands have an ascertainable market value.

There was considerable testimony introduced on defendants’ behalf regarding the effect of the construction of the electric transmission lines upon duck hunting over this property. The towers to be constructed each had four legs, two are to be 174 feet high with 48 feet between each leg, and the third is to be 140 feet high with 37 feet between each leg. The wires are to be highly polished light aluminum, which will sway in the wind, and there are ten porcelain insulators on each tower.

Defendants introduced the testimony of highly qualified and experienced men regarding the effect of these lines upon the flight of migratory ducks and duck hunting in the area.

Frank Bellrose, a wild life research biologist of the Illinois Natural History Survey for over 28 years, who has written 60 papers dealing with waterfowl, and who has taken annual waterfowl censuses in the Illinois River Valley for the past 28 years, testified that for many years he has observed the behavior of ducks in the vicinity of electric transmission lines; that the line affects ducks’ behavior adversely, in that immediately over the line there is an almost 100 percent absence of ducks and that the effect reaches out as far as a quarter of a mile on each side of the line; that ducks are disturbed by anything which reflects light or which moves, such as a line swaying in the wind; and that in his opinion in the whole area the construction of the power line would probably eliminate two-thirds of the duck kill.

Julius Kowalski, a biologist, who is an officer of Ducks Unlimited, an advisor to the Illinois and Wisconsin Departments of Conservation, an officer of the Princeton Game and Fish Club, who is familiar with the area involved in this suit, and who has had experience with power lines constructed over the Princeton Club grounds, testified that at the Princeton Club grounds, where hunting was good before the construction of the power lines, it dropped off up to one-half mile on each side of the line. He further testified that the birds will see the proposed line from one-half mile away and that the movement and humming of the lines will deter birds, and that in his opinion the erection of the proposed line would make this property virtually useless for duck hunting.

Frank Drennen, who operates a commercial duck hunting club, testified that he had purchased property with a power line and one tower 175 feet over it, that prior to the erection of the line the duck hunting was good, but that since the erection it is almost impossible to kill birds at that location and that he had to move from that property. He further testified that in his opinion the percentage of kill on the right of way on the proposed line would be nothing and that the effect would extend one-half mile in either direction.

Mike Byczynski, a conservation officer of the State of Illinois, who has engaged in hunting ducks and conservation work all his life and who has experienced hunting near transmission lines, and Murray Crowder, an outdoor consultant to Sears, Roebuck & Company, and an officer of a duck hunting club, who is familiar with the area in question and who has hunted where electric transmission lines have been built, both testified that in their opinion the erection of the proposed lines and towers will interfere with duck hunting up to within one-half mile on each side.

Defendants’ appraisal witness, Harold Morine, Jr., gave as his opinion that the tracts, prior to the erection of the line, would have a value of from $375 to $525 per acre; after the construction of the line he testified that there would be no value on the easement strip since it would be worthless for hunting ducks. He further gave as his opinion that the land outside of the easement strip would be reduced considerably in value due to the fact that the duck kill thereupon would be substantially reduced.

Ellery E. Lay, the defendants’ other appraisal witness, appraised the value of the land, prior to the erection of the line, at between $400 and $550 per acre and testified to similar reductions in value as Mr. Morine testified to.

All of these defense witnesses are obviously experienced and capable, and were qualified to give the testimony which they gave in this case. It has often been held that the question of the market value of land is not a question of art or science, but that it is a question of fact to be proved like any other fact, and that any person who is acquainted with the land and has knowledge of real estate values in the vicinity is competent to testify as to its value. Trunkline Gas Co. v. O’Bryan, 21 Ill2d 95, 98, 171 NE2d 45; Illinois Power & Light Corp. v. Talbott, 321 Ill 538, 543, 152 NE 486. The question of the qualification of witnesses as to the value of property rests largely with the discretion of the trial court. City of Geneseo v. Schultz, 257 Ill 273, 279, 100 NE 926. We agree with the trial court that the witnesses were competent to testify. In addition, the jury viewed the premises and their verdicts are within the range of the evidence given by these witnesses.

It is the well established rule that:

“Where an award is made by a jury in an eminent domain proceeding in which the evidence is conflicting, and the jury views the property and fixes the amount of compensation within the range of the evidence, such a verdict will not be disturbed unless there has been a clear and palpable mistake or the verdict was the result of passion or prejudice.” Trustees of Schools of Tp. No. 42, Board of Education of School Dist. No. 57, Cook County v. Schroeder, 23 Ill2d 74, 79, 177 NE2d 178.

There is no suggestion that the verdicts were motivated by passion or prejudice. There is no clear and palpable mistake. Courts of review have repeatedly stated that they will not disturb the decision of the trial court in such circumstances.

We have studied the briefs and arguments, and have carefully examined the errors, mainly technical, assigned by petitioner. We can find no reason to disturb the judgment rendered.

Accordingly, said judgment will be affirmed.

Affirmed.

STOUDER and SCHEINEMAN, JJ., concur.


author: PRESIDING JUSTICE ALLOY.

text:
    Edward Wisniewski, Plaintiff-Appellee, v. Delbert W. Johnson, Defendant-Appellant.
    Gen. No. 67-3.
    Third District.
    July 8, 1968.
    John A. Murchison, of Joliet, for appellant; Krusemark & Bertani, of Joliet, for appellee.
   Opinion by

PRESIDING JUSTICE ALLOY.

Not to be published in full.


author: GOLDENHERSH, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eugene Haywood, Jr., Defendant-Appellant.
    Gen. No. 67-40.
    Fifth District.
    July 18, 1968.
    Lloyd D. Cox, of Benton, for appellant.
    Joseph W. Hickman, State’s Attorney of Franklin County, of Benton, for appellee.
   GOLDENHERSH, J.

Defendant appeals from the order of the Circuit Court of Franklin County, entered upon allowance of The People’s motion to dismiss his application filed under the provisions of section 9 of the Sexually Dangerous Persons Act (c 38, § 105-9, Ill Rev Stats 1967).

In his handwritten petition, filed pro se, defendant states that on November 20, 1962, he was adjudged to be a Sexually Dangerous Person, and committed to the custody of the Director of Public Safety and has been in such custody continuously since that date, that he has undergone and completed all of the medical treatment prescribed for him, he has a perfect work and conduct record in the institution where he is confined, and “verily believes that he has fully and permanently recovered from any and all of the psychoses that he may once have had.”

In compliance with the statute, the Clerk of the Circuit Court of Franklin County sent a copy of the petition to the Director of the Department of Public Safety, and the Director sent the court a copy of a “Special Progress Report” prepared by the psychiatrist assigned to the institution where defendant is confined.

The People moved to dismiss on the grounds that the application does not set forth facts showing defendant has recovered from being a Sexually Dangerous Person and the sociopsychiatric report does not show he has recovered. The trial court allowed the motion, dismissed the application, and this appeal followed.

Under the rules set forth in the People v. Olmstead, 32 Ill2d 306, 205 NE2d 625, and the People v. Capoldi, 37 Ill2d 11, 225 NE2d 634, the application stated sufficient facts to require the court to set the matter for hearing. The content of, and conclusions reached in, the sociopsychiatric report, do not affect defendant’s right to a hearing. The report is not conclusive — it is to be considered by the court together with “any other relevant information submitted by or on behalf of” the defendant.

We have considered The People’s argument with respect to the fact that a hearing held approximately 18 months prior to the filing of the present application resulted in a jury verdict that defendant had not recovered. Section 9 contains neither a time limitation for the filing of successive applications, nor a provision for mandatory review of need for continued confinement. We note, however, that section 10-2 of the Mental Health Code of 1967 (c 91%, § 10-2, Ill Rev Stats 1967) requires, “as frequently as possible but not less than every 6 months” a review of the need for continued hospitalization of patients confined under its provisions.

We do not here decide the questions of whether a minimum period of time is required between the filing of successive applications, or if so, what the minimum period should be. We hold that in this case the fact that an application for recovery had been denied 18 months prior to the filing of the present application does not bar its filing and prosecution.

For the reasons stated the order of the Circuit Court of Franklin County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Order reversed and remanded with directions.

EBERSPACHER and MORAN, JJ., concur.


author: MORAN, J.

text:
    Evelynne Williams Turns, Plaintiff-Appellant, v. Harvey Pate Turns, Defendant-Appellee.
    Gen. No. 67-72.
    Fifth District.
    July 1, 1968.
    Walker & Williams, of East St. Louis (David B. Stutsman, of counsel), for appellant.
    Craig & Craig, of Mt. Vernon, for appellee.
   MORAN, J.

Plaintiff appeals from a decree of the Circuit Court of Williamson County in a divorce case claiming that the alimony awarded her was unreasonably low.

The parties were married on March 31, 1941, and resided together as husband and wife until May 25, 1966. Four children were born of the marriage, namely, Patrick Harvey Turns, age 23, Michele Patricia Turns, age 21, Michael Adrian Turns, age 18, and Charles Steven Turns, age 12.

On the 14th day of February, 1967, the trial court entered a decree granting the plaintiff a divorce on the grounds of extreme and repeated cruelty and awarding the custody of Michael and Charles to her. The court found that plaintiff was without means to support herself and that defendant was employed and capable of supporting plaintiff and the two minor children; that the “defendant at the present time is earning approximately the sum of $10,500 per year before deductions are taken from his said salary for United States Withholding Tax and United States Social Security Taxes.” The defendant was ordered to pay to the plaintiff the sum of $30 per week as support money for each child and to pay her the sum of $100 per year as alimony. The court further found the personal property in the possession of each party should be retained by them; that they owned a home as joint tenants and that the title to the home should remain in joint tenancy.

Plaintiff appealed from that portion of the decree awarding her alimony and that portion concerning the disposition of the real estate. However, in this court she did not question the propriety of the property award, but argued only that the alimony award was unreasonable.

Sometime after the notice of appeal, the court on petition of defendant entered a supplemental decree ordering that the home owned jointly by the parties be sold through a licensed real estate agency and that the proceeds be divided equally between the parties, subject to the satisfaction of any note or mortgage on the house and a $2,500 debt the defendant owed his credit union. There was $901 remaining which was divided evenly between the plaintiff and defendant.

We have also been informed that since the filing of this appeal, the trial court granted defendant’s petition to discontinue the $30 per week support payment for Michael on the ground that he had become self-supporting.

Plaintiff contends that the award to her is unreasonably low and that it is impossible for her and the children to live on the money the court awarded. She testified that she was 45 years of age, had not been employed for several years; that she was in poor health and under a doctor’s care; that she had colitis, a swollen bladder, a small fibroid tumor of the uterus, an allergy, a hormone deficiency and was in the menopause; that her son Michael, had heart surgery six years ago, was a free bleeder; that he had his heart catheterized and was going to undergo the procedure again.

She further testified that she now lives in Memphis, Tennessee, in a housing development. She listed her monthly living expenses as follows:

Rent $ 78.00
Food & Bathroom supplies 225.00
Gas & Electric 15.00
Heat 25.00
Telephone 7.24
Clothing 45.00
School Supplies 15.00
School Lunches 22.00
Gas & Oil 35.00
Total $467.24

The defendant contends that the award of the trial court was so high that he was unable to make the payments. He listed his monthly living expenses as follows:

House Payment $ 80.00
Sears’ Bill 34.00
Car Payment 59.37
Electricity 51.37
G. I. Insurance 37.80
Union Dues 13.93
Gas & Oil for Car 20.00
Food 50.00
House Taxes $20.00
House Insurance 5.00
Car Insurance 10.00
Clothing 20.00
Total $401.47

Defendant argues that the evidence, when properly considered, disclosed that he had a take-home pay of $145 a week, or a net monthly take-home pay of $628.33; that the total support he had to pay, plus his expenses of $401.47, amounted to $669.80, or about $40 per month more than he actually made.

There was much confusion in the briefs and during oral argument as to just what deductions actually came out of defendant’s check. However, he did testify that his take-home pay, without deducting for his credit union payment, would be $690 per month, or $159.25 per week. The credit union payments ceased when the house was sold. The trial court found that defendant made a gross salary of $10,500 or $875 per month before deductions for federal withholding tax and social security tax. His net salary after withholding and social security taxes should be approximately $725 per month or $167 per week. The $35 differential is probably because of some group insurance premiums that defendant testified were deducted from his pay.

Some of the expenses that defendant lists as monthly living expenses are not true living expenses, but payments on past due bills; and some of the living expenses appear questionable, such as the item of $51.37 for electricity. The house payment and the taxes and insurance on the house terminated with the sale of the house, although the defendant will now have to pay rent.

The proper measure of alimony is the need of the wife and the ability of the husband to pay. Herrick v. Herrick, 319 Ill 146, 149 NE 820; 24 Am Jur2d 750. We have carefully considered the needs of the wife and the ability of the husband to pay in this case, and conclude that the amount of alimony the defendant was required to pay plaintiff was so grossly inadequate as to constitute an abuse of discretion on the part of the trial court.

All of the parties involved must have food, shelter, and other necessary living expenses. Other expenses must yield to these items. In view of the foregoing, we believe that a fair and just award in this case would be an alimony award of $50 a week to the plaintiff for her support and maintenance and that the defendant should also continue to pay the sum of $30 per week for the support of the youngest child. In view of what has happened in the past in this unfortunate case, we have confidence that the trial court will take firm steps to see that this money is actually paid to the plaintiff in the event of default by the defendant.

That portion of the order of the trial court directing the defendant to pay to the plaintiff the sum of $30 per week for the support of Charles Steven Turns is affirmed; that portion ordering the defendant to pay the plaintiff the sum of $100 per year alimony is reversed and the defendant is ordered to pay to the plaintiff as alimony, the sum of $50 per week until the further order of the trial court.

Affirmed in part and reversed in part with directions.

EBERSPACHER and GOLDENHERSH, JJ., concur.

       Plaintiff testified that this expense was in connection with her use of an old car which belonged to her eldest son, Patrick.


author: STOUDER, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willmer Blumenshine, Defendant-Appellant.
    Gen. No. 66-56.
    Third District.
    July 8, 1968.
    Seth M. Dabney, of Peoria, for appellant.
    George R. Kennedy, State’s Attorney of Peoria County, of Peoria, for appellee.
   STOUDER, J.

Defendant was arrested on December 17, 1965, and taken to the police station where he was interrogated in the presence of three police officers. No attorney was present during this interrogation and the record does not disclose whether defendant was advised of his right to remain silent, that any statement he might make could be used as evidence or that he was entitled to consult an attorney, nor does it disclose whether defendant requested an attorney. Defendant made certain statements which were exculpatory in nature and related to his whereabouts on November 29, 1965, and the amount of money on his person at the time of his arrest. At the trial he presented different testimony as to his whereabouts on the date in question and the police officers were permitted to testify as to the statements made at the time of arrest as well as to the amount of money found in the coat lining of defendant.

On the day after his arrest, defendant was exhibited to four witnesses to a robbery which had occurred on November 29. The witnesses viewed defendant, only, but the viewing was done by a mother and son together and two sisters together and all witnesses were told by the police that defendant was suspected of the robbery. The confrontation by the two sisters was made in the presence of witnesses to other robberies of which police suspected defendant. All four witnesses later made an in-court identification.

A jury found defendant guilty as charged and he was sentenced to not less than ten nor more than fifteen years. Defendant was arrested with a juvenile also identified as a participant in the robbery. This juvenile was then on probation and was returned to the custody of the Youth Commission from December 20, 1965, until August 20, 1966, when he was paroled. The juvenile was finally discharged on May 10,1967.

Appellant assigns as error the constitutional violation of due process in the admission of statements by him, the impropriety of his identification, and that his sentence is disproportionate to that of his alleged accomplice.

The trial of this cause occurred prior to the decision in Miranda v. Arizona, 384 US 436, 16 L Ed2d 694 and the subsequent Supreme Court decision in Johnson v. New Jersey, 384 US 719, 16 L Ed2d 882, specifically made the Miranda warnings applicable only to situations developing after the Miranda decision. As applicable to the instant case, Escobedo v. Illinois, 378 US 478, 12 L Ed2d 977, holds only that it is error to deny the presence of counsel to defendant if such presence is requested. The record before us does not disclose that any request for counsel was made, nor that if made it was denied. We must, therefore, without attempting to differentiate between statements exculpatory in nature and those in the nature of a confession, hold that the trial court committed no error in admitting statements made by defendant. In so holding we do not imply that the methods used in this interrogation are to be encouraged. However the subsequent decisions of the Supreme Court, Miranda v. Arizona, supra, and Johnson v. New Jersey, supra, which have been specifically declared to be not retroactive, will prevent such methods in the future.

We must agree with counsel for the defendant that the identification process used was highly suggestive and conducted in a manner deserving of strong condemnation. However this trial occurred prior to the Supreme Court decisions specifically outlawing such methods, Gilbert v. California, 388 US 263, 18 L Ed2d 1178 and United States v. Wade, 388 US 218, 18 L Ed2d 1149. Stovall v. Denno, 388 US 293, 18 L Ed2d 1199, decided on the same day, specifically gave these decisions nonretroactive status. See also People v. Neiman, 90 Ill App2d 337, 232 NE2d 805. Had this been a case of first impression in this court, we would have been compelled to hold that such methods of identification here used would not have been approved. However, the prior decisions of our Supreme Court, People v. Clark, 28 Ill2d 423, 192 NE2d 851, People v. Martin, 304 Ill 494, 136 NE 711, People v. Thompson, 406 Ill 55, 94 NE2d 349, People v. Berne, 384 Ill 334, 51 NE2d 578, and People v. Crenshaw, 15 Ill2d 458, 155 NE2d 599, have upheld in-court identifications following pretrial identifications made in much the same manner as those of the instant case although condemning the methods used. We must therefore, following these decisions, hold that the identification evidence presented was admissible and that the methods used in such identification affected only the credibility of the witnesses and the weight to be given their testimony.

That there was considerable disparity in the sentencing of the two persons convicted of this crime is without dispute. Had these two persons been on an equal footing, Appellant’s arguments as to the disproportionate sentences might have been persuasive. However, in the instant case defendant was an adult while his alleged accomplice was a minor. Our laws pertaining to the treatment of juveniles were enacted precisely for the purpose of enabling a differentiation in treatment between such juveniles and adults. Defendant’s sentence conforms to the statutory mandate for the offense of which he was convicted and is, therefore free from error.

Finding no error in the record the judgment of the trial court is affirmed.

Judgment affirmed.

ALLOY, P. J. and SCHEINEMAN, J., concur.


author: JUSTICE GOLDENHERSH.

text:
    People of the State of Illinois ex rel. the Department of Public Health, State of Illinois, Plaintiff-Appellee, v. Bud Brown, et al., Defendants-Appellants.
    Gen. No. 67-59.
    Fifth District.
    July 16, 1968.

      Appeal dismissed. Durr & Durr, of Edwardsville, for appellants; William G. Clark, Attorney General of State of Illinois, of Chicago (John J. O’Toole and Donald J. Veverka, Assistant Attorneys General, of counsel), for appellee.
   Opinion by

JUSTICE GOLDENHERSH.

Not to be published in full.


author: SCHEINEMAN, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Ellzey, Defendant-Appellant.
    Gen. No. 67-64.
    Third Judicial District.
    June 28, 1968.
    Wayne P. Dyer, of Kankakee, for appellant.

      Edward P. Drolet, State’s Attorney, of Kankakee, for appellee.
   SCHEINEMAN, J.

The defendant, William Ellzey, was convicted by a jury of aggravated assault, as defined in Ill Rev Stats, c 38, § 1264. He was sentenced to 2-5 years on the judgment. Defendant had pleaded not guilty to the offense charged in the indictment, and offered testimony of self-defense at the trial. Defendant appeals on the ground that the evidence failed to prove defendant guilty beyond a reasonable doubt.

On September 14, 1965, at approximately 9:30 p. m., the defendant accompanied a girl, Lebna Staples, to the basement apartment of one Lawrence Winfield. The apartment was located in an alley in Kankakee, Illinois. The purpose of the visit was for Miss Staples to retrieve a sweater which she had left at the Winfield apartment. Miss Staples went to the door of the apartment, while defendant remained a few yards away, behind and south of Miss Staples, in the alley, which ran north and south. It is not disputed that defendant was armed with a thirty-caliber rifle. At the door Winfield told Miss Staples to come back to get her sweater the next day, because he was going to bed and had to work the next day. Following this exchange, Miss Staples turned and started to walk toward defendant. Defendant then shot Winfield in the thigh with the rifle. Explanations for the shooting were the principal issue at trial.

According to Winfield, Miss Staples turned around walked toward the defendant. He had noticed that the defendant had a long object by his side, and when Miss Staples began to walk toward the defendant, defendant brought up the object by his side. Winfield was turning to re-enter the apartment, with the screen door between him and the defendant, when he was shot. He had shouted a warning to a Maurice Jackson who also lived in the apartment.

The defendant testified that when Winfield came to the door in response to Miss Staples’ knock, he called in the house for a couple of friends to come out and jump defendant, that the defendant grabbed the girl’s hand and ran down the alley, and that when he looked over his shoulder, he saw Winfield and Jackson chasing them. He saw Winfield reach in his pocket and thought he was reaching for a gun because he knew that Winfield had a pistol. Defendant then shot at Winfield, shooting low to avoid killing him. Defendant then went on running.

There is evidence regarding the path of the bullet through Winfield’s leg, the inability of anyone to find the bullet, holes in the screen door, what was said inside the apartment, and Winfield’s ownership of a pistol and where it was kept, as well as evidence of defendant’s fear of Winfield and conversations between the two some time after the shooting. The interpretations which can be placed on the evidence are varied. Counsel for defendant argues eruditely that the interpretation which sustains the conviction contains too many patent improbabilities to meet the required burden of proof. However, the physician who treated Winfield’s wound testified the path of the bullet was sidewise through the leg. This would indicate Winfield was not faced toward the defendant when he was shot.

In addition to the testimony of Winfield and his friend that Winfield was shot while at the door, a policeman, who arrived shortly after the shooting, testified he found Winfield lying on the floor just inside the door.

Although the evidence is conflicting, there is evidence showing that defendant shot Winfield without a reasonable belief that he had to do so to prevent imminent death or great bodily harm. Ill Rev Stats, c 38, § 7-1. The mere existence of improbabilities or conflicts in the evidence, does not, by itself, require reversal. People v. Glass, 85 Ill App2d 56, 229 NE2d 292. The resolution of the conflicts in the evidence, the improbabilities in the evidence in light of ordinary experience, and the credibility of the witnesses is the province of the trier of fact, and although some of the events may seem unlikely when reviewed in the written record, it cannot be said that the verdict here is so contrary to the weight of the evidence that reversal would be justified. People v. Crews, 38 Ill2d 331, 335, 231 NE2d 451, 453; People v. Peto, 38 Ill2d 45, 49, 230 NE2d 238; People v. Johnson, 87 Ill App2d 390, 396, 231 NE2d 647, 650.

Affirmed.

ALLOY and STOUDER, JJ., concur.


author: PRESIDING JUSTICE ABRAHAMSON.

text:
    Stephen P. May, by Catherine A. May, His Mother, Next Friend, and Guardian, Plaintiff-Appellee, v. Sears, Roebuck and Co., Defendant-Appellant.
    Gen. No. 67-63.
    Second District.
    June 24, 1968.
    Rehearing denied July 19, 1968.

      Arnstein, Gluck, Weitzenfeld and Minow, and Eugene J. Kelley, Jr., of Chicago, for appellant; Peregrine, Stime and Henninger, of Wheaton, for appellee.
   Opinion by

PRESIDING JUSTICE ABRAHAMSON.

Not to be published in full.