author: MR. PRESIDING JUSTICE MURPHY

text:
    In the Matter of the Annexation of Territory to the Village of Palatine, Illinois. Josephine West, et al., and The City of Rolling Meadows, Objectors-Appellants, v. Leon A. Kotowski, et al., Petitioners-Appellees.
    Gen. No. 51,205.
    First District, First Division.
    May 15, 1967.

      Donald M. Rose, Moriarty, Rose & Faccenda, of Chicago, and DiLeonardi & Hofert, of DesPlaines, for appellants.
    Wooster & Mugalian, Charles C. Wooster and Richard A. Mugalian, of Chicago, for appellees.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

This is an annexation of territory proceeding, in which a group of landowners petitioned for the annexation of approximately 25 lots and portions of adjacent public streets to the Village of Palatine. After the entry of an order directing that the question of annexation “be submitted to the corporate authorities of the Village of Palatine for final action,” the trial court denied as untimely subsequent petitions for leave to file objections to the annexation of two and one-half of the subject lots. The prospective objectors appeal.

On November 15, 1965, a petition was filed in the Circuit Court of Cook County, requesting that territory described therein be annexed to the Village of Palatine.

The petition requested that the court submit the question of the annexation to the corporate authorities of the Village, and “that said judge enter an order fixing the time for the hearing upon this petition pursuant to the statute in such case made and provided.” The petition bore thirty-five signatures and the affidavit of one of the petitioners that the signatures represented a majority of the property owners of record and the owners of record of more than 50% of the land in the territory described, and a majority of the electors of the territory therein described. In addition to the legal description of the territory sought to be annexed, the petition included a “map of land proposed to be annexed.”

On December 14, 1965, the annexation petition was heard by the court. After making a number of findings, which included that the annexation petition conformed “to Article Seven of the Illinois Municipal Code (Ill Rev Stats, Chapter 24, Article 7),” the court ordered “that the question of annexation of the above-described territory be submitted to the corporate authorities of the Village of Palatine for final action.”

On December 21, 1965, the City of Rolling Meadows filed a petition to set aside and vacate the order of annexation entered December 14, 1965, and that leave be given to file objections to the petition for annexation. The petition alleged that on December 20, 1965, the attorney for the petitioner became aware for the first time that the petition for annexation was pending; that on September 28, 1965, an ordinance was adopted by the City of Rolling Meadows annexing a portion of the property described in the annexation petition; that on November 23, 1965, a subsequent ordinance was adopted by the City of Rolling Meadows concerning the same property, with the required statutory notice to the “Palatine Rural Fire Protection District,” because the ordinance of September 28 had been adopted without the required notice; that a copy of the ordinance of September 28, 1965, had been recorded as Document No. 19612569, and a copy of the ordinance adopted November 23, 1965, had been recorded as Document No. 19664932. The petition also stated “that the alleged annexation by the Village of Palatine of the properties already annexed to the City of Rolling Meadows is done with notice of the fact that certain portions of the property are already within the corporate boundaries of the City of Rolling Meadows and that any alleged annexation of the said properties would be a nullity.”

The Rolling Meadows petition included copies of the ordinances and an affidavit of Mathew K. Szygowski, in which it is stated that on November 10, 1965, he deposited a special delivery letter, return receipt requested, addressed “to the Board of Trustees, Palatine Rural Fire Protection District, care of Otto Goebbert, 835 W. Rand Road, Arlington Heights, Illinois,” and the return receipt indicated delivery of the letter on November 12, 1965. The affidavit includes the legal description of the land which was the subject of the notice and further states: “4. That the said notice was served upon the Board of Trustees, Palatine Rural Fire Protection District pursuant to Chapter 24, Article 7, Division 1, Section 1 of the Illinois Revised Statutes and advised the said Rural Fire Protection District that the property hereinafter legally described would be annexed to the City of Rolling Meadows, and that the said property was within the corporate boundaries of the Palatine Rural Fire Protection District.”

On December 27, 1965, an order was entered which struck “the Petition of the City of Rolling Meadows to vacate the Order of December 14, 1965,” finding (1) that the petition for annexation was filed on November 15, 1965, and the hearing was duly set for December 14, 1965; (2) that the time for filing objections to the petition for annexation expired December 9, 1965; and (3) that no objections were filed, and on December 14, 1965, an order was entered “finding all requirements of the statute to have been fulfilled, and submitting the question of annexation of the territory described in the Petition to the corporate authorities of the Village of Palatine.”

On January 6, 1966, the court denied Josephine West, Donald A. West, Victor A. Zielinski and Marcella D. Zielinski leave to file their verified petition in the proceedings. The petition alleged that the petitioners were the sole owners of record and all of the electors residing on “the East Half of Lot 1 in Block 38” and “Lots 1 and 2 in Block 39” in “Arthur T. McIntosh & Co.’s Palatine Estates, Unit #3 . . . ,” and that the property-described was included in the petition for annexation; that the order of December 14, 1965, was a nullity “in that this Court was and is without jurisdiction to enter such an order, in that the property legally described in paragraph 1 of this petition was and is within the corporate limits of the City of Rolling Meadows . . .”; that the described property was the subject matter of the City of Rolling Meadows’ ordinances No. 335 (adopted September 28, 1965) and No. 339 (adopted November 23, 1965); that the court was without jurisdiction to entertain the petition for annexation for the reason “that voluntary verified written petitions by all the owners of record and all the electors residing on the territory above described have been filed with the City Clerk of the City of Rolling Meadows, on September 28, 1965, which said Petitions have never been withdrawn and which formed the basis for the passage by the City of Rolling Meadows of the aforementioned ordinance of annexation”; that the petitioners desire that the territory described in their petition remain within the corporate limits of the City of Rolling Meadows, and they had not consented to the annexation proceedings.

Petitioners West and Zielinski further alleged facts to show that the petition for annexation was not filed in good faith and the proceedings were conducted in bad faith and under circumstances “tantamount to fraud upon this Court.” Petitioners also maintain that the annexation petition failed to state the “necessary jurisdictional allegations as set forth in Illinois Revised Statutes, Chapter 24, Article 7-1-1 that the territory sought to be annexed is contiguous to the Village of Palatine and is not located within the corporate limits of any other municipality”; that the order of December 14, 1965, “does not find that all or any part of the territory sought to be annexed is not within the corporate limits of any other municipality, thereby rendering the said order void on its face for lack of jurisdiction.” The petition prayed that the annexation order of December 14, 1965, be vacated and set aside, and the annexation petition be dismissed or, in the alternative, the order of December 14, 1965, be vacated “insofar as it affects the lands and territories owned by the undersigned and described in paragraph 1 of this petition.”

The City of Rolling Meadows and petitioners West and Zielinski appeal from the orders entered on December 14, 1965, December 27, 1965, and January 6, 1966. On appeal their theory is: 1. A prior petition for annexation of the same territory to the City of Rolling Meadows vested exclusive jurisdiction to annex that territory in the City of Rolling Meadows. 2. The petition for annexation and the order of December 14, 1965, fail to state the necessary statutory requirement that the territory sought to be annexed is not within any other municipality. 3. The original petitioners herein conducted the proceedings in a manner tantamount to fraud upon the court.

It is the theory of the annexation petitioners (appellees) that the orders were proper, and “if objeetors-appellants have a remedy, it is by quo warranto and that their petitions are insufficient to overcome the clear provisions of the annexation statutes pertaining to the time for filing of objections.”

As the record affirmatively shows that the court struck the petition of Rolling Meadows and denied leave to file the petition of the Wests and Zielinskis on the theory that they were not presented within the statutory period for the filing of objections, the determinative question is whether the merits of the petitions of the objectors should have been considered by the court, even though not filed within the statutory time fixed for the filing of objections. Ill Rev Stats, c 24, § 7-1-3.

Initially, we consider the contentions of appellants that the trial court had no jurisdiction to entertain the annexation petition or to enter the order submitting the question of the annexation to the corporate authorities of Palatine, because the annexation petition failed to allege that the property sought to be annexed was “contiguous” and “not within the corporate limits of any municipality.”

Authorities cited in support of the foregoing contention include People ex rel. DuPage County v. Lowe, 67 Ill App2d 369, 214 NE2d 593 (1966), where the court said (p 373):

“The role of the court in a proceeding of this nature is administrative. In establishing a municipal corporation the County Court derives its jurisdiction from the statute alone. No presumption arises to support its action in any particular. The conditions of the statute authorizing the creation of the municipal corporation must be complied with in the manner prescribed by statute, else the court is without jurisdiction.”

Also cited is In re Petition to Annex Certain Unincorporated Territory to Village of Arlington Heights, 65 Ill App2d 152, 212 NE2d 507 (1965) (Abst.), where the court said:

“The finding by the court that it has jurisdiction and that the statute had been complied with is not conclusive, and where the record shows that the county court did not have jurisdiction of the subject matter ... its attempted judgment or order is a nullity. . . . [T]he statute must be implicitly followed in order to confer jurisdiction upon the court in an annexation proceeding.”

We agree with appellants that the annexation petition was defective in that it did not allege that the subject territory was “contiguous” to Palatine and “not within the corporate limits of any municipality,” and on objection, timely filed, the annexation petition would have been subject to motion to dismiss because substantially insufficient in law. However, we believe the petition did contain such information as reasonably informed persons interested in the nature of the claim. The findings of the order of December 14, 1965, meet the statutory requirements for submission of the question of annexation to the corporate authorities of Palatine. This was sufficient in this case, where the two missing and basic allegations might be said to appear in the annexation petition by reasonable implication. See Parrino v. Landon, 8 Ill2d 468, 475, 134 NE2d 311 (1956); Brandeis Machinery & Supply Co. v. C. A. McNeely General Contracting & Equipment Co., 18 Ill App2d 396, 398, 152 NE2d 890 (1958).

We consider next appellees’ contention that appellants-objectors may not file objections after the statutory period, and their remedy, if any, is by quo warranto. Appellees assert the precise question raised in the case was resolved in In the Matter of a Petition to Annex Certain Territory to Village of Mettawa, 33 Ill App2d 38, 178 NE2d 895 (1961), where the court affirmed the striking of objections filed after the original hearing date, and said (p 46): “An orderly procedure has been outlined by the General Assembly and the meaning of the statute is clear.” Cases also cited to show that would-be objectors can pursue the remedy only by quo warranto include City of Countryside v. Village of La Grange, 24 Ill2d 163, 180 NE2d 488 (1962); People ex rel. Village of Worth v. Ihde, 23 Ill2d 63, 177 NE2d 313 (1961); and People ex rel. Saam v. Village of Green Oaks, 55 Ill App2d 51, 204 NE2d 149 (1965).

We are not persuaded that a quo warranto proceeding is the only remedy here. The petitions of both prospective objectors contain allegations of facts and reasons which, in substance, show that the annexation petition was not timely filed in the Circuit Court, and also was accomplished in such a manner as to deprive both the City of Rolling Meadows and the Wests and Zielinskis of the notice contemplated by the statute and an indirect attempt calculated to establish and accomplish an end contrary to the spirit of the statute and prevent the due administration of justice. In sum, the petition of the prospective objectors suggests fraud and an abuse of the process of the Circuit Court, and as was said in a similar case, where objections were allowed to be filed after the original hearing date, In re Petition to Annex Certain Territory to Village of Willowbrook, 37 Ill App 2d 393, 185 NE2d 696 (1962) (p 402) :

“It is axiomatic that fraud vitiates everything. Lack of jurisdiction over the subject matter can be raised at any time, even after judgment, and it is not waived by failure to object in proper time.”

We think, upon proper evidence, the court could find either that the notice was void as to the prospective objectors and their lands or that the voluntary petition filed with the City of Rolling Meadows, requesting annexation to the city, preempted the right to annex the territory described therein, and no subsequent annexation proceedings could have been completed in the Circuit Court which affected any part of the territory described, without a determination by the court as to the validity of the original Rolling Meadows’ proceedings and ordinances.

In the instant case, the City of Rolling Meadows and Josephine West, et al., had presented their petitions to object to the annexation within seven days and twenty-three days respectively, of the date of the entry of the order submitting the question of annexation to the corporate authorities of the Village of Palatine. Therefore, it is apparent that appellants acted with due diligence and without delay after becoming aware of. the annexation proceedings. Therefore, we conclude that the trial court should have permitted the filing of the petitions of the objectors and held a hearing on the merits of the petitions to determine whether the order of December 14, 1965, should be vacated and set aside as to the property of the Wests and Zielinskis.

For the reasons given, the orders of the Circuit Court of Cook County of December 27, 1965, and of January 6, 1966, are reversed, and the cause is remanded to the Circuit Court of Cook County for further proceedings in accordance with the views expressed herein.

Reversed in part and remanded with directions.

BURMAN and LYONS, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MURPHY.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Smith, Defendant-Appellant.
    Gen. No. 51,189.
    First District, First Division.
    May 15, 1967.

      John J. Gill, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE MURPHY.

Not to be published in full.


author: JUSTICE BURMAN.

text:
    Romain C. Knockaert, Plaintiff-Appellant, v. Studebaker Corporation, Defendant-Appellee.
    Gen. No. 51,551.
    First District, First Division.
    May 15, 1967.
    Solomon, Bush, Rosenfeld & Elliott, of Chicago (Jack Solomon, Jr. and Sidney L. Rosenfeld, of counsel), for appellant; Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Don H. Reuben and Frank Cicero, Jr., of counsel), for appellee.
   Opinion by

JUSTICE BURMAN.

Not to be published in full.


author: MR. JUSTICE BURKE

text:
    Stan Kane, Plaintiff-Appellee, v. Nomad Mobile Homes, Inc., an Illinois Corporation, Paul Sachs, Mobile Office, Inc., an Illinois Corporation, and Joseph Neidlinger, Defendants. Stan Kane, Plaintiff-Appellee, v. Paul Sachs, Defendant-Appellant.
    Gen. No. 50,970.
    First District, Second Division.
    May 16, 1967.
    James E. Daniels and John M. Dahlberg, of Chicago, for appellant.
    Altheimer, Gray, Naiburg, Strasburger & Lawton, of Chicago (Samuel T. Lawton, Jr., of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Stan Kane filed a two-count complaint against Nomad Mobile Homes, Inc., (hereinafter called Nomad), Paul Sachs, Mobile Office, Inc., and Joseph Neidlinger. The first count alleges the existence and breach of an exclusive output and requirement contract for the manufacture and sale of office trailers between plaintiff as buyer and Nomad as manufacturer-seller. The second count as amended, alleges that Sachs, Mobile Office, Inc., and Neidlinger jointly and severally procured Nomad to breach its contract with plaintiff and are therefore liable in tort. Each count sought a judgment for alleged damages. Defendants answered denying the material allegations of the complaint and interposed an affirmative defense.

A verdict as to Count I found in favor of plaintiff and against Nomad and assessed “the damages in the sum of $ none”; as to Count II, a verdict was found in favor of plaintiff and against Sachs, and assessed damages at $14,000; in favor of plaintiff and against Mobile Office, Inc., and assessed damages at $1,200; and in favor of defendant Joseph Neidlinger and against plaintiff. Judgments were entered in accordance with the verdicts. Nomad, Sachs and Mobile Office, Inc., filed post-trial motions for judgments notwithstanding the verdict or for a new trial. The court denied the post-trial motions of Nomad and Sachs and ordered that the judgments against these two defendants remain in force. The court allowed the motion of Mobile Office, Inc., for judgment notwithstanding the verdict and vacated the judgment against this defendant. Sachs appeals from the $14,000 judgment against him.

A legal injury is a wrongful act resulting in damages. Gillman v. Chicago Rys. Co., 268 Ill 305 at 309, 109 NE 181. As a general rule, to constitute a valid cause of action there must be both injury and damages, as expressed by the maxim injuria sine damno. An action cannot be maintained for an injury without damage. There must be at least nominal damages. 1 CJS, § 15c, Page 1011.

Section 50(2) of the Civil Practice Act provides:

“If multiple parties or multiple claims for relief are involved in an action, the court may enter a final order, judgment or decree as to one or more but fewer than all of the parties or claims only upon an express finding that there is no just reason for delaying enforcement or appeal. In the absence of that finding, any order, judgment or decree which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not terminate the action, is not enforceable or appealable, and is subject to revision at any time before the entry of an order, judgment or decree adjudicating all the claims, rights and liabilities of all the parties.”

The verdict found the issues in favor of the plaintiff as to Count I and against Nomad Mobile Homes, Inc., and assessed the damages as “none.”

As the verdict in the instant case found that there were no damages in the claim of plaintiff against Nomad, the court should have entered a judgment for Nomad and against plaintiff under the doctrine of injuria sine damno. As there is no valid judgment against Nomad that case is still pending. In view of the fact that the court did not make an express finding that there is no just reason for delaying enforcement or appeal the judgment did not adjudicate the rights of all the parties; hence the judgment is not enforceable or appealable. We have read Jeffrey v. Chicago Transit Authority, 37 Ill App2d 327, 185 NE2d 384, and Parke v. Lopez, 306 Ill App 486, 29 NE2d 30.

The provisions of section 50(2) of the Civil Practice Act were not in effect when the opinion in Lopez was filed. In that case there was a valid judgment in favor of Dorothy Parke and against A. H. Lopez and there was a proper appeal prosecuted from that judgment, under the prevailing practice. In Jeffrey the court did not discuss the application of section 50 (2) of the Civil Practice Act. It is interesting to note that in Jeffrey the opinion points out that nominal damages have no place “in actions of this sort” and that failure to prove actual damage entitles the defendant to a verdict “in cases in which such failure of proof occurs.” In the case at bar the plaintiff did not seek nominal damages against the defendant. He sought substantial damages.

Therefore the appeal is dismissed without prejudice.

Appeal dismissed without prejudice.

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


author: MR. PRESIDING JUSTICE LYONS

text:
    Virginia Lobravico, Individually and as Administrator of the Estate of Roy D. Lobravico, Deceased, Plaintiff Appellee, v. Checker Taxi Company, Inc., a Corporation, and Juan Berrios, Defendants-Appellants.
    Gen. No. 51,112.
    First District, Second Division.
    May 16, 1967.

      Jesmer and Harris, of Chicago (Jay A. Canel, of counsel) , for appellants.
    Philip H. Corboy, James P. Chapman and James T. Demos, of Chicago, for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from separate judgments of $25,000 and $1,424 entered pursuant to two respective counts of a wrongful death action. The judgments were entered by the court below sitting without a jury against the defendants-appellants, Checker Taxi Company, Inc., and Juan Berrios. After entry of said judgments, defendants made motions to set aside and vacate the judgments and enter judgment in their favor, or alternatively, to grant a new trial, both of which were denied, and from which this appeal is taken.

No questions are raised on this appeal relative to the pleadings. It is defendants’ sole theory on appeal that a reversal is required because of plaintiff’s failure to prove freedom from contributory negligence by the decedent. Correspondingly, defendants contend that the court below erred in disregarding the testimony of Jane Swett, the only eyewitness to the actual occurrence.

It is plaintiff’s theory of the case (1) that the question of contributory negligence is one of fact, not of law, and the trial judge’s determination of the issue was not contrary to the manifest weight of the evidence, and (2) that Jane Swett’s testimony was properly discredited by the trial judge, it having been contradicted on several material points by other credible testimony.

The occurrence which gave rise to this action was a car-pedestrian collision in the north crosswalk of the intersection of Erie Street and Fairbanks Court in the City of Chicago. (Erie Street runs east-west, and Fairbanks runs north-south.) The uncontested portions of the testimony adduced at trial showed that the decedent, Roy D. Lobravico, when last seen by his wife on the morning of the incident, June 14, 1961, was in good state of physical health and mental alertness. He was 50 years old, five feet, seven inches tall, and possessed good eyesight and hearing. Decedent was a father and responsible provider for his household. He generally performed the ordinary tasks of a man caring for his family and home. On the day in question, decedent left his place of employment at about 4:30 p. m. He had been a chief X-ray technician for about 27 years, and had performed his tasks that day in the customary fashion. It was daylight, the streets were dry and the visibility good. The traffic in the vicinity was categorized as “light.” Decedent walked in a westerly direction on the north side of Erie Street.

The intersection he approached was that of Erie and Fairbanks where there were no buildings, foliage, or the like which would have obstructed the view of his approach. Fairbanks Court, at this intersection, is unencumbered by any traffic control signals. Traffic on Erie Street, however, is obliged to honor a stop sign. The maximum speed limit on Fairbanks Court was 30 miles per hour. Permissible crosswalks were indicated at each corner by painted white lines.

Decedent, as he crossed Fairbanks Court, was within the provided crosswalk margins. He entered Fairbanks Court from the north-east comer of the intersection. While so crossing, a collision took place between decedent and defendant-Checker’s vehicle which was then being driven by defendant-Berrios. The vehicle had been traveling in a northerly direction on Fairbanks Court. Two days subsequent, decedent expired as a result of the injuries thereby sustained. This wrongful death action was thereafter instituted by his surviving spouse, Virginia, as administratrix of his estate. The circumstances surrounding the events which immediately preceded and followed the actual impact, as they pertain to the single question of contributory negligence, are much controverted and will be hereafter set out in detail.

Defendant-Berrios was ruled incompetent to testify under the Dead Man’s Statute when called as a witness. The only witness who testified in defendants’ behalf was Jane P. Swett, a then rear seat passenger in the taxicab which was involved in the collision. She was being taken to a nearby hospital and was the only eyewitness to the events which immediately preceded the impact. She never appeared at trial. Her testimony was read into the record from an evidence deposition which had been taken in New York on August 6,1965.

Mrs. Swett fixed the vehicle’s speed at about 15 miles per hour, stating that the speed was then reduced to approximately 10 miles per hour as it entered the intersection of Erie Street. She testified that she saw the decedent ahead standing on the northeast comer of the intersection. She explained that suddenly decedent walked forward, into the right-hand side of the taxi, his head striking the extreme right corner of the windshield. The witness stated that she thought the man’s head was bowed down, apparently preoccupied. Mrs. Swett, at this juncture, was shown Plaintiff’s Exhibits 2 and 3 which were two photographs of the vehicle in question. The photographs showed a shattered right portion of the windshield as well as dents in the right front door and front bumper. She stated that the photographs accurately portrayed the vehicle as it existed immediately after the impact. She thereafter attributed the shattered windshield to the contact it made with decedent’s head. On impact, the witness stated, the decedent fell right over backwards and hit his head on the curb. She claimed that there was no movement of the body through the air. On cross-examination, Mrs. Swett said she did not recall seeing or passing a CTA bus stopped at the southeast corner of the intersection. She stated that she did not recall hearing the brakes of the taxi screech after the impact, but that she did remember the vehicle stopping suddenly in a span of 10 to 15 feet after such collision.

Although no other persons were called relative to the events which immediately preceded the occurrence, plaintiff called three witnesses (Carol Spancher, Jane Haw, and Gale Noonan) who testified as to events they witnessed immediately after hearing “the noise” or “thud.” All were in close proximity to the collision. Spancher was approximately 50 to 75 feet behind decedent walking in the same direction. Haw and Noonan were each waiting for buses on the southeast and northwest corners of the intersection respectively. Their testimony, as to several material factors, was in contradiction with that of Mrs. Swett.

Each said the traffic was light and that they could not recall hearing the screeching of brakes or vne sound of a horn. Mrs. Haw testified that as she boarded a stopped bus on the southeast corner, she saw defendants’ taxi coming fast and pass the bus. She said the bus was positioned about three feet away from the east curb at the time, and that the taxicab passed the bus while close to the center of Fairbanks Court. Mrs. Noon-an recalled seeing a bus stopped at this corner just before the collision. Both Spancher and Noonan stated that the taxi was going about 20 to 30 miles per hour when they saw it. Mrs. Haw categorized it as traveling “fast.” Both Spancher and Noonan stated they saw decedent’s body fly in the air upon impact. Mrs. Spancher placed the body six to eight feet in the air above the crosswalk. Mrs. Noonan placed the body in the air above the car’s hood and close to its windshield. All three witnesses agreed that the taxi did not come to a stop until approximately a half of a block past the point of impact. Likewise, all three placed the body in the street after impact. Mrs. Noonan stated the body landed north of the crosswalk. Mrs. Spancher stated that the body lay with its head three feet west of the east curb, the balance of the torso extending to the west. Mrs. Noonan remarked that when she first heard the noise and looked up, the taxi was entirely north of the crosswalk in which decedent had been walking.

From the conflicting testimony adduced, we feel the court was not in error in discrediting the testimony of defendants’ only witness, even though her eyewitness account was the only one bearing directly on the events immediately preceding the impact. Mrs. Swett’s testimony was directly contradicted in five material respects by the corroborated testimony of three of plaintiff’s witnesses; to wit, (1) that the body did not fly up into the air on impact, (2) the position of the body after impact, (3) the speed of the vehicle as it traversed the intersection, (4) the distance the vehicle travelled before allegedly coming to a “sudden stop” after the impact, and (5) her failure to recall seeing or passing a stopped CTA bus at the southeast corner, because, by her own admission, she had been thinking about going to the hospital.

Her evidence deposition, though entitled to equal weight had she testified in person, was taken more than four years after the date of the collision thereby compounding the questionable reliability of her narration. Mrs. Swett’s claim that decedent walked into the taxi’s windshield further strains the believability of her testimony. Physical limits dictate that a man five feet, seven inches tall could not plunge his head into an automobile windshield unless the upper half of his body were slumped forward considerably as he walked. Decedent had no malady which would suggest he walked in this manner. Her testimony, though direct, was irreconcilable with the accounts of three other witnesses as well as the physical circumstances, and hence could properly be discredited. The rule is that positive direct testimony may be contradicted and discredited by circumstantial evidence, discrepancies, omissions, or the inherent improbability of the testimony itself. Stephens v. Hoffman, 275 Ill 497, 114 NE 142 (1916); Sutherland v. Guccione, 8 Ill App2d 201, 131 NE2d 130 (1955).

Defendants argue that, assuming Mrs. Swett’s testimony was properly discredited, there still exists no independent proof that decedent was in the exercise of due care at and immediately prior to the impact. Defendants point out that plaintiff’s entire case relates to events subsequent to the collision. In addition, they contend that plaintiff seeks to establish due care by reference to defendant-Berrios’ conduct prior to the impact and not that of decedent. Defendants maintain that in such a situation decedent is guilty of contributory negligence as a matter of law, relying upon the cases of Russell v. Richardson, 308 Ill App 11, 31 NE2d 427 (1940), Rajek v. Cummings, 314 Ill App 465, 41 NE2d 969 (1942) and Soic v. Richardson, 315 Ill App 213, 42 NE2d 884 (1942).

The Russell case held that contributory negligence is a separate and distinct question from a claim of negligence on the part of the defendant. Each of these three cases ruled that, absent evidence of due care, the question of due care is one of law and not of fact. We do not take exception to the conclusions reached under the facts of these cases. Noteworthy however, and unlike the case at bar, in both the Russell and Rajek cases eyewitness testimony placed the oncoming vehicle within the deceased’s plain and unobstructed view. Furthermore, both cases dealt with track riding vehicles which the deceased could not have expected to be capable of avoiding the collision by a swerving maneuver. See Carrell v. New York Cent. R. Co., 384 Ill 599, 52 NE2d 201 (1943). Similarly, the Soic case is not in point. There the approaching vehicle was in “clear view,” and the deceased had not traversed the highway in the provided crosswalk.

In the instant case, a track riding vehicle is not involved. Moreover, the evidence presented reasonably indicates that the stopped CTA bus obstructed decedent’s view of the oncoming taxi as he stood in a lawful crosswalk. In the case of Karlock v. New York Cent. R. Co., 333 Ill App 655, 78 NE2d 122 (1948), a similar obstruction was deemed sufficient in and of itself to submit the question of due care to the jury. The issue of contributory negligence can only become a question of law when the evidence offered is so insufficient to establish due care that all reasonable minds must necessarily reach the same conclusion. Lauer v. Elgin, J. & E. Ry. Co., 305 Ill App 200, 27 NE2d 315 (1940); King v. Ryman, 5 Ill App2d 484, 125 NE2d 840 (1955); Campbell v. Ragel, 7 Ill App2d 301, 129 NE2d 451 (1955). Here there was room for a difference of opinion as to the inferences which may be legitimately drawn from the facts. As such, the question of due care was one of fact, not of law. Johnson v. Livesay, 29 Ill App2d 428, 173 NE2d 838 (1961); Schneider v. Russell, 32 Ill App 2d 112, 177 NE2d 5 (1961).

Defendants next contend that if the issue of due care was properly submitted as a question of fact, then, in the alternative, the judgments were contrary to the manifest weight of the evidence. It is settled law that a court of review will not upset a judgment as contrary to the manifest weight of the evidence unless a contrary conclusion is clearly evident. As the court stated in Blumb v. Getz, 366 Ill 273, 8 NE2d 620 (1937):

. . . unless it can be said that the action of a person is clearly and palpably (contributorily) negligent, it is not within the province of the court to substitute its judgment for that of a jury . . . (Insert supplied.)

Nor are we empowered to reweigh the evidence or test the credibility of witnesses. Mokrzycki v. Olson Rug Co., 28 Ill App2d 117, 170 NE2d 635 (1960).

We do not think it can be said that the evidence, when taken as a whole, together with all its reasonable intendments and inferences most favorable to plaintiff, was manifestly inadequate to support the judgments entered. We are not, in so ruling, ignoring the language of Russell v. Richardson, 308 Ill App 11, 31 NE2d 427 (1940) and Rajek v. Cummings, 314 Ill App 465, 41 NE 2d 969 (1942), which treated due care as a separate and distinct question from that of the defendant’s negligence. In wrongful death actions the availability of evidence as to both negligence and due care are often at a premium because of the death of the parties involved, the absence of competent witnesses under the Dead Man’s Statute, and the reliability of the testimony of an eyewitness due to the exigencies of the situation. It is because of this we feel the better view is expressed in Cahill v. Cummings, 322 Ill App 662, 54 NE2d 634 (1944) . There the court, in rejecting the position taken in Russell and Rajek, stated that while negligence of a defendant and due care of a decedent are distinct questions, due care may be determined, not independently, but rather as it relates to defendant’s negligence.

Here plaintiff did not offer any proof relative to whether decedent looked for approaching traffic before entering the intersection. Defendants’ witness, Mrs. Swett, however, testified that decedent was “standing” on the northeast corner of such intersection which would indicate that he had stopped before entering the crosswalk. While he is not thereby relieved from his duty to exercise due care, a pedestrian has a lawful right to assume that motor vehicles using the streets will abide by the laws regulating vehicular speed, right-of-way, and the like. Ziraldo v. Lynch Co., 365 Ill 197, 6 NE2d 125 (1936); Warner v. Burke, 302 Ill App 85, 23 NE2d 393 (1939). Accordingly, even a failure to look for approaching traffic by a decedent when crossing a street has been held not to constitute a lack of due care as a matter of law, but is rather another question of fact for the jury to weigh. Morrison v. Flowers, 308 Ill 189, 139 NE 10 (1923); Moran v. Gatz, 390 Ill 478, 62 NE2d 443 (1945) ; Arbogast v. Fedorchak, 44 Ill App2d 160, 194 NE2d 382 (1963). In the instant case, the evidence offered by plaintiff reasonably indicated that defendants violated numerous vehicular statutes which decedent had a right to presume would not be violated. See Ill Rev Stats 1961, c 95%, §§ 146,171, and 212.

In wrongful death actions, when direct and positive testimony on the subject is unobtainable, decedent’s due care may be inferred from proof of his careful habits and circumstantial evidence surrounding the event. This is because only the highest degree of proof of which the case is susceptible is required. Randolph v. New York Cent. R. Co., 334 Ill App 268, 79 NE2d 301 (1948); Campbell v. Ragel, 7 Ill App2d 301, 129 NE2d 451 (1955); Robinson, Admx. v. Workman, 9 Ill2d 420, 137 NE2d 804 (1956); Schneider v. Russell, 32 Ill App2d 112, 177 NE2d 5 (1961); Bennis v. Chicago Transit Authority, 33 Ill App2d 334, 179 NE2d 421 (1961) ; Turnbull v. Porter, 55 Ill App2d 374, 206 NE2d 97 (1965).

Relative to the events during and immediately prior to the impact, this court is of the opinion that there existed no direct and positive testimony bearing on the issue of due care. The lone eyewitness’ account was contradicted by and so inconsistent with other testimony that it was not believed by the trier of the facts. She stated that decedent walked directly into the side of the taxi. However, the witness, at no time, testified as to whether decedent looked down Fairbanks Court for oncoming traffic. In Davenport, R. I. & N. W. Ry. Co. v. DeYaeger, 112 Ill App 537 (1903), the court refused to categorize a witness as an eyewitness even though he purported to have seen the occurrence because:

While ... he saw deceased, he did not look at him all the time, and he did not observe whether deceased took any precautions to ascertain the approach of the train.

Cf. Lauer v. Elgin, J. & E. Ry. Co., 305 Ill App 200, 27 NE2d 315 (1940); Bennis v. Chicago Transit Authority, 33 Ill App2d 334, 179 NE2d 421 (1961).

Here, plaintiff offered the highest degree of proof of which her case was susceptible. Decedent was shown to be a healthy, alert, and intelligent person who had enjoyed stability of employment. Decedent, during the course of his employment on the day in question, had performed his duties in the customary fashion. It is uncontested that decedent crossed the street in the provided crosswalk. Moreover, notwithstanding the absence of testimony from either side as to whether decedent looked before crossing, it may be reasonably inferred from the physical facts as they existed that decedent never saw the approach of the vehicle because of the stopped CTA bus which might have obstructed his view. Bennis v. Chicago Transit Authority, 33 Ill App2d 334, 179 NE2d 421 (1961).

As plaintiff offered in her closing argument and also in her brief and argument, a vehicle traveling at the speed of 20 to 30 miles per hour travels at 29.2 to 43.8 feet per second, and thus would traverse the 76 feet between the point where the bus was stopped and the north crosswalk, where decedent entered the intersection, in 1.8 to 2.5 seconds. The vehicle never sounded its horn. Absent some warning, we do not think we can charge decedent with the duty to have extricated himself from such a situation in time. Furthermore, the testimony of plaintiff’s witnesses relative to flight of the body through the air and its position on the street, is consistent with and support plaintiff’s theory; to wit, that the taxi struck decedent with its front, the shattered windshield being attributed to its contact with the body as it flew through the air. We, therefore, cannot say the judgments were contrary to the manifest weight of the evidence.

For the above reasons, the judgments are affirmed.

Affirmed.

BURKE and BRYANT, JJ., concur.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William M. Jones, Defendant-Appellant.
    Gen. No. 50,984.
    First District, Third Division.
    May 18, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James N. Oramenos 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 Edward J. Downs, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Jennings, Defendant-Appellant.
    Gen. No. 51,207.
    First District, Third Division.
    May 18, 1967.

      James P. Ryther, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant appeals from a conviction for armed robbery which occurred at approximately 11:00 a. m. on November 18, 1964. This charge was founded on Indictment No. 64-3621. The defendant was also tried at the same time on a charge of attempt (robbery) which occurred on November 7, 1964. This charge was contained in Indictment No. 64-3610, and the jury could not agree relative to the charges in Indictment No. 64-3610 and a mistrial was declared as to that indictment.

On appeal the defendant contends (1) that the State did not produce sufficient evidence to establish the guilt of the defendant beyond a reasonable doubt; (2) that the court erred in permitting defendant to be tried on two separate and unrelated matters for which he had been charged in two separate indictments; (3) that the court erred in failing to advise the defendant of his rights to refuse to be tried on two separate indictments; (4) that the court erred in failing to instruct the jury that the evidence presented with respect to one of the indictments should not be considered as influencing or controlling with respect to the other indictment, and (5) that the court erred in permitting evidence to be introduced at the trial which was procured directly as the result of defendant’s arrest, which he claimed was in violation of his rights secured by the Fourth and Fourteenth Amendments to the Constitution of the United States.

The evidence adduced at the trial relative to indictment No. 64-3621 was as follows:

Donald Hennelly testified that he was employed as a routeman by Monarch Laundry Company; that on November 18, 1964, at 10:50 a. m. he was in his truck when a man on the sidewalk asked him if he would pick up some laundry for him. That man was the defendant. Hennelly followed him into the vestibule of a building at 415 East 80th Street. They talked along the way. When they reached the second floor landing of the building the defendant pulled a gun and put it to the side of Hennelly’s head and told Hennelly to be quiet or he would kill him. Hennelly put up his hands and the defendant told him to face straight ahead on the stairway. The defendant told Hennelly he was a dope addict and that he would kill Hennelly if he called out. The defendant then took $61.50 out of both of Hennelly’s pockets. The defendant ordered Hennelly to take off his shoes and trousers and the defendant threw them up to the third-floor landing. The defendant then left the building. Hennelly further testified that the lighting conditions were adequate with a big window on each landing at each floor; that he looked at the face of the defendant and observed his height, build and general characteristics, and about five minutes elapsed during the whole transaction. After the incident, Hennelly immediately phoned the police and gave them a description of the man who had robbed him. Hennelly further testified that on November 24, 1964, he attended a lineup at a police station, and Hennelly, after seeing the defendant and listening to him speak, positively identified the defendant as the robber. During the trial Hennelly again positively identified the defendant as the robber. Hennelly also testified on cross-examination, in answer to a question as to whether he told the police that the defendant was wearing a hat, that the defendant was wearing a green small-brimmed hat. At that point during the trial a one-page police report was submitted to defense counsel and purported to be the report of the police officer who arrived at the scene on November 18, 1964, at 11:00 a. m.

Police Officer Burns testified defendant was arrested at his apartment November 18, after an investigation concerning a series of robberies. At the time of the arrest the police had a description given by both Hennelly and Lindstedt. Lindstedt was the victim in Indictment No. 64^3610.

The defendant testified that the police, prior to his arrest, had an artist’s conception of the robber, and one officer told the defendant it “favored” or looked like him.

The police officers who attended the lineup were also called. They testified that Mr. Hennelly had identified the defendant at the time of the lineup.

The defendant testified that on November 18, 1964, he was either at St. Leonard’s House, a halfway house, instituted for the rehabilitation of ex-convicts, or his apartment, or en route between these places during the time of the robbery. He further testified that he had been stopped on the street by police officers prior to November 23, the date on which he was arrested. They asked him to get into their car and asked the defendant questions about fifteen or twenty robberies. The police officer showed the defendant an artist’s conception or sketch, and the defendant told the police officer he had never seen the man. One policeman said, “He favors you.” The defendant further stated that the policeman’s partner disagreed. They obtained his name and address and let him go. The next time he saw the police was on November 23 when they came to his home and arrested him. The defendant stated that he let the police in and they searched him and the apartment, and did not find any money or any gun.

Father Douglas Wolfe, Director of St. Leonard’s House, testified that he had a definite recollection of seeing Jennings at St. Leonard’s on the evening of November 18. He also testified that he thought the defendant was at St. Leonard’s in the morning, but was not sure.

The first contention of the defendant is that he was not proven guilty beyond a reasonable doubt of the charge of armed robbery of Donald Hennelly. He argues that since the defendant’s conviction was based entirely upon the identification made by the complaining witness, Mr. Hennelly, and since there was no gun found and no money found, the evidence was insufficient and the State’s case had not been proven beyond a reasonable doubt. With this contention we disagree. Our courts have repeatedly held that the testimony of one witness alone, when it is positive and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused. People v. Miller, 30 Ill 2d 110, 195 NE2d 694; People v. Pride, 16 Ill2d 82, 156 NE2d 551. Hennelly’s identification of the defendant was positive and was not shaken on cross-examination. The defendant relied upon an alibi defense. The jury heard and observed the witnesses and found against the defendant. The court in People v. Carpenter, 28 Ill2d 116, 190 NE2d 738, on page 122 stated:

“This court has repeatedly declared a conviction will not be disturbed unless it clearly appears that there is not sufficient credible evidence to establish the guilt of the accused beyond a reasonable doubt. Where the evidence on an issue is conflicting but legally sufficient if the prosecution’s witnesses are believed, the question is for the trier of fact. (People v. Guido, 25 Ill2d 204; People v. Glass, 16 Ill2d 595; People v. Sain, 384 Ill 394.)”

The question of credibility of the witnesses is to be determined by a jury, as it was in this case. The jury had the opportunity to observe the witnesses, their candor or lack of candor, and their demeanor while testifying, and this court will not interfere with that finding by the jury merely because there is conflicting testimony.

Defendant argues that there is no satisfactory explanation in the record as to why Lindstedt was called back to a second lineup. Lindstedt was the victim in Indictment No. 64-3610. The second lineup, to which the defense refers, was attended by Donald Hennelly and Bernard Lindstedt, both of whom were drivers for Monarch Laundry. Lindstedt testified that he was called back to the second lineup but that he was not required to attend it. The defendant argues that the reason for calling Lindstedt back to the second lineup is immediately obvious in that it permitted an exchange between the fellow drivers, meaning Lindstedt and Hennelly. The record, however, does not bear out the inference drawn, in that it does not show that the victims were together at the second lineup, or even that any conversation took place between them at the second lineup.

We are of the opinion that the defendant was proven guilty of the armed robbery of Donald Hennelly.

The second point raised by the defendant is that the court erred in permitting the defendant to be tried for two robberies in the same trial. To understand this point more clearly, as urged by the defendant, we will set forth herein the testimony adduced at the trial relative to indictment No. 64-3610. As to that indictment, Bernard Lindstedt testified that he was a laundry driver for Monarch Laundry, and that on November 7, 1964, in the area of 68th and Prairie, a man asked him to pick up some laundry. Lindstedt and the man went into a building and up the stairs and there the man pulled a gun. A scuffle occurred and the man reached into Lindstedt’s pocket. He did not get any money. Lindstedt was yelling and the man finally fled. The entire transaction took about ten minutes and Lindstedt had occasion to look at the man’s face during the whole encounter. Lindstedt called the police and gave them a description of the man. Thereafter Lindstedt went to a lineup at 11th and State on the 23rd of November and identified Jennings, the defendant. This lineup was at about 1:00 o’clock p. m. Lindstedt further testified that he was called back to a second lineup in the evening which he attended, but that he was not required to go back to the second lineup. Lindstedt further testified that the defendant at the time of the robbery was wearing a gray plaid sports coat, a light shirt, either white or cream colored, and dark gray slacks. A one-page police report was furnished defense counsel by the State at the time of the trial. The witness further testified that the defendant was about six feet tall and that he gave the police a description of the person who attacked him on November 7,1964.

The defendant testified that at about 8:00 o’clock on the morning of November 7 he went to St. Leonard’s and was told to report to the home of Mr. and Mrs. Hanley at 1439 East 60th Place. He indicated that he arrived at the Hanleys’ about 9:00 o’clock in the morning and did not leave the house until 6:30 o’clock that evening. Both Mr. and Mrs. Hanley testified on behalf of the defense.

Mr. Hanley testified that the defendant arrived at about 9:30 on November 7 and worked with a Mr. Tafford until about 7:00 o’clock that evening. He indicated that he observed the defendant every five or ten minutes during the day, suggesting that he was somewhat dubious about the fact that both workers were ex-convicts. He testified that he prepared lunch for the defendant and observed the defendant during the period around noon on November 7.

Mrs. Hanley testified that she arrived at her home at about 12:40 p. m. on November 7, and that defendant was working at her home until between 6:30 and 7:00 that evening.

Donald Adamson, a witness called on behalf of the defendant, testified that he was employment counsel at St. Leonard’s House and he verified that Jennings had been assigned work at the Hanleys’ on November 7.

Father Douglas Wolfe, a witness called on behalf of the defendant, testified that the Hanleys paid St. Leonard’s for the work of the defendant on November 7 and that he in turn paid the defendant. This was noted on a work ticket.

The defendant argued that it was clearly improper to have tried the defendant on the two disconnected robberies at the same time. The defendant cites section 114-7 of the Illinois Code of Criminal Procedure (Ill Rev Stats 1963, c 38, sec 114-7), which provides as follows:

“The court may order 2 or more charges to be tried together if the offenses and the defendants could have been joined in a single charge. The procedure shall be the same as if the prosecution were under a single charge.”

The defendant also cites section 111-4 (a) of the Illinois Code of Criminal Procedure, 1963, which provides, in part, as follows:

“Two or more offenses may be charged in the same indictment, ... if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction.”

It is the contention of the defendant that since the dates of these alleged crimes were unrelated, the places of occurrence were unrelated, the victims were unrelated, except for a common employer, and the nature of the offenses is unrelated, since one charged attempted robbery of a victim, and the other charges a completed crime of robbery of another victim, that the People should have been required to elect on which of the two felonies they relied. The defendant also points out that it is well settled that in common law the defendant cannot be forced to trial upon two disassociated felonies in the same proceeding. People v. Wolf, 358 Ill 334, 195 NE 211; People v. O’Malley, 404 Ill 165, 88 NE2d 454.

We feel that it is unnecessary to decide whether the defendant could be tried under the two indictments in this case due to the fact that the defendant acquiesced in the trial of the two indictments. At the outset Mr. Bilton, who represented the State in both of these cases, said to the judge: “Judge, the State is willing to consolidate Indictments Nos. 64-3610 and 64-3621.” The Court: “Defense?” Mr. Fishman (attorney for defendant): “No objection to that, your Honor.” The Court: “No objection to the State consolidating Indictments Nos. 64-3610 and 64-3621. They will be consolidated for trial.”

“It is a well established general rule that a party will not be permitted to allege an error committed against him in the trial court in which he, himself, acquiesced or which was committed or invited by him.” ILP Vol 15, Criminal Law, § 902.

In People v. Watson, 394 Ill 177, 68 NE2d 265, the court held that constitutional guaranties with respect to the conduct of criminal trials can be waived and, when so waived, the consequences of the waiver are binding upon the accused.

In People v. Washington, 342 Ill 350, 174 NE 405, the court held that where a jury had been impaneled and sworn and heard some of the witnesses and the jury was discharged on agreement of counsel, the defendant could not claim, after a conviction by a subsequent jury, that he had been twice placed in jeopardy for the same offense. The defendant in this case is in no position to complain, having consented to the consolidation of the two indictments for trial.

In People v. Raymond, 393 Ill 147, 65 NE2d 341, two separate individual defendants were charged with separate and distinct crimes alleged to have been committed on different and separate dates, without any allegation or charge of conspiracy or joint action. There the court held that the record showed that the cases were tried together with the consent. of both defendants, and therefore there was no merit to the charge of error. The defendant having consented to the consolidation of the two separate indictments cannot at this time urge it as error.

The next contention urged by the defendant is that the court erred in failing to advise the defendant of his right to refuse to be tried on two separate indictments and in support of that argument cites Glasser v. United States, 315 US 60. That case, in our opinion, does not support defendant’s contention. In that case defendant Glasser was himself an attorney. He had employed counsel to defend him. On the day before trial, the attorney employed to represent Kretske asked for a continuance. The court denied the continuance and appointed another attorney. The following day when the case proceeded to trial the attorney appointed by the court informed the court that Kretske did not wish to be represented by him. The court then asked Glasser’s attorney if he could act as Kretske’s attorney, to which appointment the attorney for Glasser objected because the defenses of Glasser and Kretske were not the same, and because of certain conversations which would be testified to at which the defendant Glasser was not present but in which Kretske participated. The defendant Glasser objected to the court appointing his attorney to represent the defendant Kretske. Thereafter defendant Kretske, after some colloquy, told the court that he had just spoken to Glasser’s attorney and that Glasser’s attorney told him if the court wished to appoint him he would accept the appointment. Glasser’s attorney was then appointed to represent Kretske. Glasser remained silent, and there is nothing in the record to indicate that he at any time withdrew his objection. The court on page 71 stated:

“The court made no effort to reascertain Glasser’s attitude or wishes. Under these circumstances, to hold that Glasser freely, albeit tacitly, acquiesced in the appointment of Stewart is to do violence to reality and to condone a dangerous laxity on the part of the trial court in the discharge of its duty to preserve the fundamental rights of an accused.”

In the instant case there is no indication that the defendant in any way opposed going to trial on both indictments before the same jury, and the Supreme Court of the United States in the Glasser case relied upon the fact that Glasser, the defendant, had personally objected to the appointment of his attorney as attorney for Kretske and the trial court did not reascertain Glasser’s attitude or wishes. We do not believe that the Glasser case is controlling on the facts before us.

The defendant next contends that the court erred in failing to instruct the jury that the evidence presented with respect to one of the indictments should not be considered as influencing or controlling with respect to the other indictment. There is no merit to this point inasmuch as the defendant offered no instruction relating to the separate indictments.

In People v. Rave, 364 Ill 72, 3 NE2d 972, the court pointed out that an objection to the failure to instruct the jury is waived if not timely and properly presented.

The last contention of the defendant is that the court erred in permitting evidence to be introduced at the trial which was procured directly as a result of an unconstitutional arrest of the defendant. In support of this contention the defendant argues there is nothing in the record which connected the defendant Jennings with the robbery prior to his arrest, and there is a complete absence of any information regarding the nature of the investigation conducted by the police. Section 107-2, chapter 38 (Ill Rev Stats 1963, c 38, § 107-2) provides that a peace officer may arrest a person when he has reasonable grounds to believe that the person has committed or is committing an offense. The Supreme Court in People v. Peak, 29 Ill2d 343, 194 NE 2d 322, held that while bare suspicion would not justify a police officer in making an arrest without a warrant, nevertheless, probable cause or reasonable grounds means something less than the evidence which would result in a conviction. The court on page 348 said:

“Probable cause for arrest exists when the facts and circumstances within the arresting officer’s knowledge, and of which he had reasonable and trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in believing that an offense has been committed, and that the person arrested is guilty. People v. Fiorito, 19 Ill2d 246; People v. Jones, 16 Ill2d 569; People v. LaBostrie, 14 Ill2d 617.”

The record here discloses that police officer Burns testified that the defendant was investigated for a series of robberies. Two of the victims of the series of robberies were face to face with the robber and gave descriptions to the police. Hennelly testified that he had a good look at the robber’s face, height, build and general characteristics. He viewed him at close range for more than five minutes. Immediately thereafter he phoned the police and gave them a description of the robber. The State in this case gave to the defense a copy of the police report. Lindstedt viewed his assailant for ten minutes and had occasion to look at the man’s face the whole time. He observed his assailant’s height, weight, build and general characteristics and gave a description of defendant to police. Lindstedt in court testified that the robber wore a gray plaid sports coat, light shirt and dark gray slacks. An artist’s conception was drawn of the defendant and defendant testified that an officer said it favored or strongly looked like the defendant. In addition to the description of the defendant by the victims and the artist’s conception, the police also knew the robber was or at least had been a dope addict. The defendant told the victim he was a dope addict and said he would kill the victim if he made an outcry. We believe these facts constitute reasonable grounds of probability supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the defendant did commit the crimes.

The defendant in his brief admitted that the police were given a description of the robber and as a result of this description the defendant was arrested. Two victims saw the defendant so well that an artist’s conception was drawn and they were able to positively identify the defendant at a lineup and in open court.

Defendant cites Beck v. Ohio, 379 US 89. In that case there was no specific charge against Beck. The record in that case disclosed that there was no crime of which the defendant was even suspected. No victims of Beck identified him or gave a description which would fit him. There was no reasonable ground to believe that an offense had been committed by Beck. The court there held that while it was possible an informer did in fact relate information to the police which constituted probable cause for defendant’s arrest, when the constitutional validity of that arrest was challenged, it was incumbent on the prosecution to show with considerably more specificity than was shown, what the informer actually said and why the police thought the information was credible. That case concerned an informer who was neither shown to be previously reliable nor corroborated, nor was it ever pointed out why the police arrested the defendant. The defendant in this case was arrested by the police on the basis of descriptions given to them by the victims, their knowledge that defendant was a narcotics addict, crimes that had been committed and reasonable grounds to suspect the defendant of being the perpetrator of said crimes.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Walter Bell, Defendant-Appellant.
    Gen. No. 51,329.
    First District, Third Division.
    May 18, 1967.

      Melvin Friedman, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

A jury found the defendant John Bell guilty of armed robbery and he was sentenced to the penitentiary for a term of ten to twenty years. He was tried with a codefendant, James Brinkley, who was also found guilty and similarly sentenced. Bell alone prosecutes this appeal. He contends that prejudicial error was committed during his trial.

The defendants were accused of robbing Benjamin Biegel, the owner of a tailoring and cleaning shop, on October 6, 1962. On October 4th Bell, 24 years of age, and Brinkley, 33 years old, brought three shirts to Biegel’s basement shop to be cleaned. Biegel said they would be ready in two days and asked for the name of the owner. Bell gave his name; two of the shirts had his name on them. The men returned about 1:30 p. m. on the 6th. Bell asked for his shirts and Biegel replied that he expected them to be delivered to his store at any minute. Bell moved close to Biegel, pulled a gun, stuck Biegel in the side and ordered him to lock the door. Biegel complied. Brinkley told Bell to take Biegel to the back, to put him on the floor and to cover him with a coat taken from a rack. Bell did so and said: ‘‘Don’t you dare look or I’ll kill you.” While Bell guarded Biegel, Brinkley went through his pockets, emptied the cash register and searched the shop. They tied him up with neckties and belts and left the shop with $62.20 of his money and clothing belonging to his customers. He released himself and called the police.

At 8:00 in the morning on October 22, 1962, Bell and Brinkley came to his shop a third time. The front door and the screen door were locked. Brinkley demanded that the door be opened so that he could pick up some clothing he had at the shop. Without unlocking the screen door Biegel asked: “Are you sure?” Brinkley said he was; Biegel told him the clothing was not ready but would be in the afternoon. Biegel closed the door and called the police. Minutes later the police arrested the men as they emerged from an alley. They brought the men back to the shop and Biegel identified them as the men who had robbed him on October 6th.

When first questioned at the police station Bell and Brinkley denied being in Biegel’s shop on the 4th, 6th or 22nd. Later Bell said he had brought three shirts there on the 4th and had returned for them on the 22nd; he again denied being there on the 6th. The defendants were also questioned by a detective of the robbery detail of the Chicago Police Department. Brinkley repeated his denial. Bell, however, admitted going to the shop on October 6th to see if his shirts were ready but he denied the robbery. He said he took his shirts to Biegel’s shop, which was a mile and a half from where he lived, because he had heard that Biegel did good laundering.

Bell testified at the trial; Brinkley did not. Bell said that Brinkley was with him when he went to the shop on October 4th and October 22nd but that he was alone when he went there on October 6th to inquire about his shirts.

The first error asserted by the defendant is that the trial court improperly overruled objections made by his attorney during his cross-examination. On cross-examination the Assistant State’s Attorney, over objection, asked the defendant if there were other cleaning shops between his house and Biegel’s. The defendant answered affirmatively and the prosecutor asked, “How many are there ?” When the defendant said he could not recall the prosecutor inquired: “There are at least fifteen of them, are there not?” The defendant answered, “I don’t know.” It is argued that permitting the prosecutor to ask these questions was prejudicial because there was no evidence that there were fifteen shops between the defendant’s home and Biegel’s store, and that the State never attempted to show that there were after asking the questions. The form of the question did connote that the prosecutor knew there were at least fifteen such stores, and to this extent the question was a mistake unless the prosecutor was prepared to support it with proof. No proof was forthcoming and thus asking the question was error; the error, however, was relatively harmless.'

The final errors asserted are the following statements made by the Assistant State’s Attorney in his final argument: (1) “He came a mile and a half from his home through neighborhoods where there were a lot of cleaning establishments to come to this cleaning establishment”; and (2) . I can see no reasonable doubt created in anybody’s mind as to the guilt of the two defendants.” It is argued that there was no evidence that the defendant lived a mile and a half or any other distance from Biegel’s place of business; that, as in the first error alleged, there was no evidence of “a lot” of other cleaning stores, and that the prosecutor was expressing his own opinion and belief as to the defendant’s guilt. The prosecutor’s first statement was not entirely without foundation. In the defendant’s conversation with the detective from the robbery unit the distance of one and a half miles was mentioned; and the defendant testified that there were other cleaning shops between his home and Biegel’s shop. The phrase “a lot” may have been an exaggeration but the defendant was not prejudiced thereby. As to the second statement: counsel for the State had the right to argue to the jury his belief that the evidence warranted a conviction — and that was all he was doing in this case.

There were no substantial errors in the trial and the evidence established the defendant’s guilt beyond all reasonable doubt. The judgment of the Criminal Court is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE DRUCKER

text:
    Jean M. Alanen, Plaintiff-Appellee, v. Ero E. Alanen, Defendant-Appellant.
    Gen. No. 51,310.
    First District, Fourth Division.
    May 19, 1967.

      Morris L. Simons, of Chicago, for appellant.
    Arnold and Kadjan, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal by the defendant-husband, Ero E. Alanen, from the entry of a decree of divorce obtained on the grounds of extreme and repeated cruelty. Defendant contends (1) that the acts of cruelty alleged by plaintiff in her complaint, even if proven, do not constitute extreme and repeated cruelty; and (2) the second alleged act of cruelty was not proven because the plaintiff’s witnesses were impeached.

Plaintiff and defendant were married on June 3, 1950. One child was born of the marriage, although plaintiff had a son by a previous marriage who lived with the parties until he went to college. With regard to the defendant’s general conduct plaintiff testified:

He was very belligerent, antagonistic. He didn’t want to assume responsibility of taking care of the boy and myself and he just actually made me afraid to live with him, very neurotic.

Barbara Finch, a friend of the parties, corroborated the plaintiff’s testimony. She testified that she had been in their home frequently and that the defendant was belligerent and belittled the plaintiff; that he often became intoxicated; and that he had tried to start arguments with the plaintiff but that she (plaintiff) declined to argue with him. Gale Moses, another friend, testified that plaintiff was afraid to return home from work in the evening because she was afraid of the defendant; that she feared for her life; and that defendant was sarcastic towards the plaintiff.

Defendant’s alleged acts of cruelty occurred on January 11 and April 17, 1965. Concerning the incident of January 11, defendant admitted that during an argument as to where plaintiff had been with the family car, he held a knife to her throat and threatened to kill her. Plaintiff testified that while holding the knife against her throat defendant had her pinned in a corner of their apartment, her left arm was behind her and defendant was holding her right shoulder to the wall. Defendant, however, testified that the incident took place while plaintiff was sitting in a chair. Defendant further testified that he had no intent of harming the plaintiff, but instead that he was only bluffing. Barbara Finch, who worked with plaintiff as a waitress, testified that she saw plaintiff at work on the evening of January 12:

I saw she was shaken more so than usual. Jean had started to be quite shaky. She had gotten to the point where she was afraid to go home.

She further stated that plaintiff informed her:

Ero had held a knife at her throat and the only thing that saved her was that her son happened to come in at the time. He was threatening her [with a knife].

The alleged incident of April 17 occurred after the funeral of defendant’s father, for which the parties had travelled to Michigan with their sons. Plaintiff testified that defendant pushed her across the room against a gas heater after she interceded as defendant was choking her son (by a previous marriage) during a dispute. Defendant denied pushing or touching the plaintiff. He stated that during a dispute he grabbed the son by his shirt, not by the neck, and that he let go after being threatened by the plaintiff. Barbara Finch testified that she saw the plaintiff at work one or two days after the alleged incident and that she was holding her stomach and limping. She stated:

So Jean went to Michigan and when she came home I looked at her and I said Jean, what are you limping for and she was kind of holding herself like this [indicating how plaintiff was holding her stomach] and she said I had trouble with Ero again and it seems as though Ero had tried to go after her son and she tried to interfere and he pushed her.

Gale Moses testified that she saw the plaintiff the day after she returned from Michigan and that plaintiff was limping and was holding her stomach as if in pain. The witness further stated: “She said Ero had hit her, he had pushed her.” There was also some confusion as to whether plaintiff had a bruise on her arm.

Francis Suski (a brother-in-law of the defendant but not plaintiff’s brother) testified on behalf of the defendant and stated that plaintiff had informed him of an altercation she had with defendant on April 17 and that she was leaving him. Suski further stated that: “I did not observe any marks or bruises upon her face and body at that time nor anything with reference to her stomach.” There was no reference in his testimony to the existence or absence of plaintiff’s limp.

Defendant first contends that the alleged acts of cruelty, even if established, do not constitute extreme cruelty. In support of his contention defendant cites various cases in which the court has held that certain acts of cruelty were not sufficiently extreme so as to justify a divorce. Defendant then argues that the degree of cruel punishment suffered by the plaintiff in the instant case was less than that suffered by the respective plaintiffs in those cases, and that therefore a ground for divorce has not been established. Acts of violence vary from case to case, and each case must be considered upon all of its facts. Stockman v. Stockman, 38 Ill App2d 186, 186 NE2d 547. In that case the alleged acts of cruelty were based upon the husband’s conduct of January 15 and 27, 1959. With regard to the first incident the plaintiff testified that “he hit me on the shoulder and on the back, with his fist and bruised me.” The plaintiff in that case further testified that on January 27 “he hit me across the mouth and bruised me through my knee cap and up to my hip. My mouth was bruised on the outside and was cut on the inside.” The court stated at page 189:

There is no way to tell how severe an act of physical violence actually is from reading a printed page in a brief. Just how severe the cruelty was in the authorities cited is also hard to determine. While every act of physical contact is not an act of cruelty within the statute, when it produces pain and bodily harm it will support a decree for divorce. Bruises, cuts, limping, and the like are not usually the result of slight acts of cruelty. While they are not alone the test, they may aid a trial judge to find that the acts of violence were acts of cruelty within the statute. The trial judge should also consider such other things as the physical condition of the parties, the provocation, the anger displayed and the like.

In the instant case it was uncontradicted that the defendant acted in a belligerent and antagonistic manner toward the plaintiff. According to the testimony, plaintiff ultimately became so frightened that she was afraid to go home. On January 11, 1965, defendant in a fit of anger held a knife to plaintiff’s throat and threatened to kill her. We cannot say that this act did not constitute extreme cruelty because defendant did not slit her throat. On April 17 of that same year, defendant pushed the plaintiff across a room into a gas heater with utter disregard for her well-being. According to plaintiff’s witnesses, she subsequently walked with a limp and held her stomach as though in pain.

We therefore find that the conduct of the defendant, illustrative of his obvious disregard for the safety and welfare of the plaintiff, is sufficient to constitute extreme and repeated cruelty.

Defendant next contends that the testimony of plaintiff’s witnesses was not credible. However, the issue of credibility is for the determination of the chancellor. Curran v. Curran, 19 Ill2d 164, 166 NE2d 13. In that case the court stated at page 169:

The evidence with respect to the conduct of both parties is in sharp conflict, and the issues depend largely upon matters of credibility. Where the chancellor hears conflicting testimony in open court, as in this case, his decision will not be disturbed unless it is manifestly against the weight of the evidence. The chancellor saw and heard the parties and each of their witnesses, and was in a much better position to ascertain the truth and detect falsehood than is a court of review. In such a case this court is not justified in reversing the decree insofar as it is dependent upon the weight and credence to be given to the testimony.

We find that the decision of the chancellor in the instant case was not manifestly against the weight of the evidence.

Defendant next contends that he did not receive a fair trial and urges this court to review the record and find support for that contention. A court of review will not search the record for error. Darling v. Charleston Community Memorial Hospital, 50 Ill App2d 253, 308, 200 NE2d 149.

We find that the defendant has committed extreme and repeated cruelty against the plaintiff. Therefore the decree of the Circuit Court of Cook County is affirmed.

Affirmed.

ENGLISH, P. J. and McCOBMICK, J., concur.

       Extreme and repeated cruelty is a ground for divorce in Illinois (Ill Rev Stats 1963, c 40, § 1).