author: MR. JUSTICE MURPHY

text:
    Marlene J. Traudt, Administratrix of the Estate of Robert W. Traudt, Deceased, Plaintiff-Appellant, v. City of Chicago, a Municipal Corporation, Butler Aviation, a Corporation, and D. E. C. Aviation, a Foreign Corporation, Defendants-Appellees.
    Gen. No. 52,168.
    First District, First Division.
    July 29,1968.
    Rehearing denied September 17,1968.
    Miller, Green & Frazin, of Chicago, for appellant.
    Lord, Bissell & Brook, of Chicago (William P. Butler and Thomas W. Dempsey, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a wrongful death action. On December 24, 1963, the decedent, Robert W. Traudt, was piloting his private airplane with the intention of landing at Meigs Field, a public airport located in Chicago on a man-made island or peninsula in Lake Michigan. The airplane “became mechanically inoperative,” and he made an emergency landing upon Lake Michigan adjacent to Meigs Field and was drowned.

Plaintiff, as administratrix of the decedent’s estate, and in a 3-count complaint, sued (1) the City of Chicago, as the owner of Meigs Field; (2) Butler Aviation Corporation, as the “licensee, tenant, manager or agent” of the airport; and (3) D. E. C. Aviation Corporation, from whom the decedent purchased the airplane, which was delivered to him on December 24, 1963, at Meigs Field.

Plaintiff’s amended complaint alleges substantially that the negligence of the City of Chicago and Butler Aviation resulted in the death of plaintiff’s decedent by drowning, because either or both failed to provide and maintain rescue equipment for emergency landings on the lake within close proximity to the airport.

The plaintiff administratrix appeals from an order which struck plaintiff’s amended complaint and dismissed the action, with prejudice, as to defendants City of Chicago and Butler Aviation only, because of “plaintiff’s failure to state a legal duty owed by these defendants to plaintiff’s decedent.”

On appeal, plaintiff’s determinative contentions are: (A) Defendants owed a duty to plaintiff’s decedent to so operate, manage and control said airport so that it would be reasonably safe for plaintiff’s decedent to use same and not to unreasonably expose him to danger. (B) Defendants breached their aforesaid duty by failing to provide or have a life boat, a helicopter, a life gun or other safety appurtenances and appliances at said airport for emergency purposes when it knew, or, in the exercise of reasonable care, should have known or foreseen the need for such appurtenances or appliances, inasmuch as said airport was located on the waters of Lake Michigan.

Plaintiff’s authorities on airport operation, management and duties to users include:

8 Am Jur2d 702, Aviation, § 79:

“The law places on the proprietor of an airport or airfield the obligation to see that it is safe for such aircraft as are entitled to use it, and to give an appropriate warning of any danger or hazard of which the proprietor knows or should know and of which the pilot of an aircraft does not know or may not reasonably be deemed to know. For a breach of this duty, the proprietor may be held liable for injuries to or the death of persons, or damage to property, proximately resulting from the operation of aircraft at the airport or airfield, and since a municipality or county in operating an airport is deemed, in the absence of a statute providing otherwise, to do so in a proprietary rather than a governmental capacity, this is generally considered as true of a public airport as it is of a private one.

“This duty extends to the keeping of the premises in such a reasonably safe condition that the pilot in landing his aircraft will not be unreasonably exposed to any danger, and the owner of an airport has a duty to keep the runway free from obstructions, so far as possible, or to place markers warning pilots of danger.”

Peavey v. City of Miami, 146 Fla 629, 1 So2d 614, 617 (1941):

“. . . the law imposes a duty to use proper care, precaution, and diligence in providing and maintaining the accommodations in a reasonably safe condition for the purposes to which they are adapted, and are apparently designed to be used. If the accommodations for any reason are not reasonably suitable and safe for the purposes for which they may ordinarily and apparently be used in a customary way, the public should be excluded from their use, or appropriate notice of their unsuitable or unsafe condition should be so given as to warn persons of dangers in using them. A failure to perform these duties or any of them may be negligence that, if it proximately results in injury to another without his fault, will constitute a cause of action for compensatory damages.”

Mills v. Orcas Power & Light Co., 56 Wash2d 807, 355 P2d 781, 784 (1960):

“That the primary duty of marking the poles and lines to caution landing aircraft was upon the owners and operators of the airport itself, there can be little doubt. A public airfield extends an implied invitation to aircraft, and the duty owed, therefore, is one of reasonable care to see that the premises are safe.”

And at p 785, it is stated:

“The airport proprietor’s duty to maintain safe conditions for craft using the field extends not only to the runway itself, but to the take-off and landing flight ways. These are as much a part of the airport, and thus as much a part of the proprietor’s responsibility, as the runway itself.”

From the foregoing, plaintiff argues that the basic duty of defendants to plaintiff’s decedent was to provide a reasonably safe airport for his use and not to unreasonably expose him to danger — that an airport that is without adequate rescue equipment and facilities is unsafe and unreasonably exposes persons using that airport to danger — further, this basic duty is not restricted to the confines of the airport itself, but extends beyond the field to adjacent areas, as in the instant case, in the lake and within 200 feet from the airport. In substance, plaintiff argues that the immediate lake water is part of Meigs Field and within the control of the airport authorities, and if water rescue equipment had been available and used, the decedent would have been rescued.

Plaintiff also maintains that the defendants should have seen the need for rescue equipment, as common sense dictates that emergencies are bound to arise which would necessitate a ditching by an aircraft into the lake. In support of the premise that the rule of foreseeability should be applied here, plaintiff cites Kahn v. James Burton Co., 5 Ill2d 614, 622, 126 NE2d 836 (1955):

“All men are presumed to know those things which are matters of common knowledge and must be held, in the absence of actual knowledge or notice, to have reasonably anticipated such occurrences as in the ordinary nature of things reasonable men should know will probably occur. Every person owes to all others a duty to exercise ordinary care to guard against injury which may naturally flow as a reasonably probable and foreseeable consequence of his act, and the law is presumed to furnish a remedy for the redress of every wrong.”

Plaintiff also contends that “the decedent was a business invitee of the defendants who, having paid his landing fee and taken off from defendants’ airport, was, at the time of his emergency landing, under radio control of the defendants, attempting to return.” From this plaintiff asserts there was a special relationship between the parties sufficient to warrant the extension of defendants’ duty to decedent to provide a reasonably safe airport for his use, and to not unreasonably expose him to danger, including the obligation to take steps to effect his rescue in event of an emergency landing on the water adjacent to the field.

Plaintiff’s authorities on this point include:

65 CJS, Negligence, § 63(106), p 858:

“One who sees another in peril, for which he is in no way responsible and which is entirely disconnected from any agency or instrumentality with whose control he is concerned, is not under any legal obligation to attempt to rescue or assist such person, and he need not exercise care to protect such person against the hazards of the perilous situation. However, when some special relation exists between the parties, social policy may justify the imposition of a duty to assist or rescue one in peril.”

Decatur Amusement Park Co. v. Porter, 137 Ill App 448 (1907), where it was held that the owner of a lakeside resort could be held liable for failure to take any precautions to prevent one of its guests from drowning. It is said (p 452):

“Under the authorities we hold that it was the duty of appellant to make reasonable provision to guard against those accidents which common knowledge and experience teach are liable to befall those engaging in the sport which appellant had invited the public to participate in.”

L. S. Ayres & Co. v. Hicks (Ind), 40 NE2d 334, 337 (1942):

“From the above cases it may be deduced that there may be a legal obligation to take positive or affirmative steps to effect the rescue of a person who is helpless and in a situation of peril, when the one proceeded against is a master or an invitor or when the injury resulted from use of an instrumentality under the control of the defendant.”

Hutchinson v. Dickie, 162 F2d 103, 106 (1947), where the court said a shipowner had a duty to rescue a passenger who had fallen overboard.

Defendants admit that the law imposes upon the operator a duty to maintain its premises in a reasonably safe condition. Defendants contend that the primary issue is whether the defendants owed a legal duty to plaintiff’s decedent to be prepared to go outside the airport to rescue him. They assert that issue is a question of law and not a question of fact. Defendants argue that if there was no duty here to rescue beyond the airport premises, then no cause of action was stated by allegations that the defendants did not possess certain equipment by which a rescue may have been effected.

Initially, we are not persuaded that the immediate lake water is part of Meigs Field or under the control of the airport authorities. It is our opinion that at the time of the occurrence, the decedent’s status was in the nature of a business invitee to a public airport, and that a “special relationship” then existed between him and the defendants. This “special relationship,” which we find here, carried with it a duty toward the deceased invitee to provide a reasonably safe means of ingress to or egress from the airport, notwithstanding the airport authorities were not in control of the adjacent lake waters. Stedman v. Spiros, 23 Ill App2d 69, 83, 161 NE2d 590 (1959); 28 ILP, Negligence, § 53, p 44.

Granting a special relationship here, an examination of the amended complaint shows no allegation that airport ingress or egress were involved in the occurrence. There was no allegation that the mechanical failure of the airplane was related to the physical condition of the airport or ingress to it. We conclude the asserted special relationship status applied to the alleged facts shows no breach of any legal duty to the decedent, even though such an occurrence may have been foresee-

able. As said in Moore v. City of Ardmore, 188 Okla 74, 106 P2d 515, 516 (1940):

“The duty to have means of rescue for those who have the misfortune to be cast into water and to be in danger of drowning may be ever so desirable as a humanitarian principle, but we are convinced it is not a legal duty in a case such as this. . . . The invitee assumes the risks attendant upon the venture into which he enters. It would be illogical to say that the inviter owed the invitee the duty to provide means of rescue from extraordinary risks that come from unusual or uncontrollable sources.”

In our opinion, this case calls for the application of the rule that “a mere bystander incurs no liability where he fails to take any action, however negligently or even intentionally, to rescue another in distress.” (Lacey v. United States, 98 F Supp 219, 220 (1951); 38 Am Jur, Negligence, § 18; 65 CJS, Negligence, § 63 (104).) Therefore, absent a duty to rescue, the instant defendants had no legal duty to maintain water rescue equipment for water rescue emergencies.

Since, as we have concluded, the trial court was correct in its determination that the amended complaint failed to state a cause of action against these defendants, it follows that their motion to strike was timely and the issue was a matter of law and not a question of fact for a jury.

For the reasons given, the order of the Circuit Court of Cook County dismissing the action, with prejudice, as to defendants City of Chicago and Butler Aviation is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


source: Caselaw Access Project

author: MORAN, J.

license: Public Domain

text:
    LaSalle National Bank, as Conservator of the Estate of Jeane Strotz, a/k/a Jeane M. Strotz, Incompetent, Plaintiff-Appellant, v. Robert H. Strotz, Defendant-Appellee.
    Gem No. 52,184.
    First District.
    August 21,1968.
    Ira D. Schultz and Gilbert T. Graham, of Chicago, for appellant.
    Morris L. Simons, of Chicago, for appellee.
   MORAN, J.

The plaintiff, as Conservator of the estate of Jeane Strotz, incompetent, filed a complaint for separate maintenance in Cook County against Robert Strotz, defendant. The complaint alleged that the parties resided in Cook County; that on August 18, 1960, the wife was adjudged an incompetent by the Circuit Court of Cook County and pursuant to the order she was taken from the Psychopathic Ward of Cook County Hospital and committed to the Illinois State Psychopathic Institute in Cook County, and that on March 3, 1961, she was removed to the Elgin State Hospital for the mentally ill located in Kane County. It was further alleged that on March 27, 1961, the defendant filed a complaint for divorce in the Circuit Court of Kane County; that said complaint alleged that the wife was a resident of Kane County, and that since neither of the parties was a resident of Kane County, the Circuit Court of said county was without jurisdiction of the parties and that therefore the decree granting the divorce in Kane County was void. The complaint in the present action further alleged that the incompetent’s property was taken from her by the allegedly void decree and that defendant should be ordered to pay reasonable sums for her support and maintenance.

The defendant moved that the court dismiss the complaint for the reason that the marital status of the parties had heretofore been determined and that the court is being asked to review the judicial action of the Circuit Court of Kane County. The Circuit Court of Cook County dismissed the complaint and this appeal followed.

The sole issue is the extent to which the jurisdiction of the Circuit Court of Kane County may be inquired into by the Circuit Court of Cook County on collateral attack.

Appellant contends that section 5, Ill Rev Stats (1961) c 40, par 6, requiring divorce actions to be filed in the county where either the plaintiff or defendant resides is jurisdictional and since neither the plaintiff nor the defendant was ever a resident of Kane County, the decree for divorce is null and void and subject to collateral attack by proof of facts contradicting the record.

Defendant contends that since the divorce decree was proper on its face, it cannot be declared null and void by the Circuit Court of Cook County and relief must be sought in the Circuit Court where the decree was rendered.

In People ex rel. Bradley v. McAuliffe, 24 Ill2d 75, 179 NE2d 616, the petitioner, by leave of court, filed a petition for mandamus to compel the Village Court of Maywood to expunge from the records of that court an order purporting to vacate a divorce decree of the Circuit Court of Williamson County and also to require the judge to dismiss a divorce proceeding filed in that court by the respondent. That court had entered an order holding a divorce decree of the Circuit Court of Williamson County void on the ground that neither plaintiff nor defendant resided in that county.

The respondent contended that the requirements of section 5 of the Divorce Act (Ill Rev Stats 1959, c 40, par 6) were jurisdictional and that the Village Court of Maywood was not bound by the findings of the Williamson County decree as to the residence of the plaintiff, but could consider evidence dehors the record to determine whether or not the husband was, in fact, a bona fide resident of Williamson County at the time the divorce suit was instituted.

The Supreme Court held that the residence requirements of the Divorce Act were jurisdictional but since lack of jurisdiction did not appear on the face of the record, “the Village Court of Maywood, on collateral attack of the Williamson County decree, was bound by the record of the Circuit Court of Williamson County and had no authority to go behind the record to make its independent determination of whether or not the Circuit Court of Williamson County had jurisdiction.

“The question, therefore, does not turn upon a determination of whether the requirement of residence in the county relates to venue or jurisdiction. It is rather the extent to which the jurisdiction of one court of this State may be inquired into by another court on collateral attack.” Ibid. 81.

The appellant argues that the complaint set forth facts which, if admitted, conclusively disclose that the Circuit Court of Kane County never had jurisdiction to enter the decree for divorce. In People ex rel. Lehman v. Lehman, 34 Ill2d 286 at 292, 215 NE2d 806, the court said: “On the face of the record of Cook County action, which was attached to the motion to dismiss the habeas corpus action, there was no jurisdictional defect. The orderly administration of justice does not permit one court of this state to ignore an action pending in another court of this state. The result which the father sought could have been achieved as well in the Cook County action.” The decree in the present case, which was regular on its face, was attached to and made a part of the complaint. Therefore, in our opinion, it comes within the prohibition of the Lehman and Bradley cases, supra.

There is no contention in this court that lack of jurisdiction appears on the face of the record of the Circuit Court of Kane County. We do not express an opinion as to the proper disposition to be made by the Circuit Court of Kane County in the event a petition should be filed under section 72 of the Civil Practice Act to obtain relief from the decree heretofore entered by that court.

Accordingly the judgment of the Circuit Court of Cook County allowing defendant’s motion to dismiss is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


text:
    Estate of Julia Oppenheim, Deceased. Irving Eisenberg, Petitioner-Appellant, v. Joseph Perrye and Seidner & Seidner, Respondents-Appellees.
    Gen. No. 52,187.
    First District, First Division.
    July 22,1968.

      Irving Eisenberg and Paul I. Baikoff, of Chicago, for appellant.
    H. Lester Seidner and Emmanuel Seidner, Seidner and Seidner, of Chicago, for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Petitioners, as attorneys for an heir-at-law and legatee, unsuccessfully sought for six years to discover uninventoried assets in a decedent’s estate. In a petition filed in the estate and based on section 41 of the Civil Practice Act, they now seek attorneys’ fees and court costs from the executor and his attorneys on the theory that they wilfully concealed information from petitioners. After a hearing the Probate Division of the Circuit Court of Cook County dismissed the petition, and petitioners appeal.

The decedent, Julia Oppenheim, died testate on June 25, 1960, and Joseph Perrye qualified as executor on March 24, 1961. His inventory as executor was filed and approved on August 9, 1961. A first current account was filed on February 26, 1962, and approved on December 8, 1964. A second and final account was approved on December 8, 1964, over objections. The record indicates that the gross estate was $2,040, which was exhausted upon payment of funeral expenses and attorneys’ fees.

On March 16, 1961, during the pendency of the petition for admission of decedent’s will, Harriet Sikorowski, an heir-at-law and a $200 legatee, together with two other heirs-at-law, filed a petition for leave to file interrogatories instanter, and that Joseph Perrye and Seidner & Seidner be directed to answer the interrogatories. After a hearing, the petition was dismissed on April 28, 1961, because premature. Petitioners sought to appeal from the order of dismissal and proffered an appeal bond, which was disapproved. A mandamus petition to compel the acceptance of the bond was denied. An appeal to this court was unsuccessful (47 Ill App2d 112, 197 NE2d 271, opinion filed March 12, 1964), and leave to appeal to the Supreme Court was denied.

On September 4,1964, a citation to discover assets was issued on the petition of Harriet Sikorowski, directing the respondents, Joseph Perrye and Seidner & Seidner, his attorneys, to appear to be examined as to assets which had not been included in the inventory. On September 25, 1964, an order was entered quashing the citation summons and denying the citation petition of Harriet Sikorowski.

The order of September 25, 1964, was reversed by this court (63 Ill App2d 284, 211 NE2d 403, opinion filed October 4, 1965), and the Probate Division of the Circuit Court was directed to proceed with a hearing as to the merits of the citation. In that case this court said (p 291):

“In this case the respondents, who have had charge of this estate for four years, either do or do not have information about or possession of the alleged assets of the decedent, and this question should be determined by the court. We fail to see how the mistake of the petitioner in pursuing the wrong remedy has prejudiced respondents. The quest for the assets of the estate of a deceased person is at times very difficult and so important that it calls for the use of a liberal construction of the powers of the court in the aid of an attempt to secure information or recovery of the assets.”

Thereafter, and pursuant to the directions of this court, the Probate Division heard and considered evidence on the merits of the citation petition and ordered it dismissed on July 27, 1966. The order made a number of findings, which included:

“The petitioner has failed to prove that either the respondents, Seidner and Seidner, or any member of that firm, or Joseph Perrye, have possession or control of any of the alleged assets of the decedent alleged in the citation petition as allegedly belonging to the decedent upon her death or which are alleged to have belonged to the estate of said decedent.

“IT IS, THEREFORE, ORDERED that the above-mentioned citation petition filed by Harriet Sikorowski against Joseph Perrye and Seidner and Seidner, respondents, be and the same hereby is dismissed with prejudice and the said respondents, Joseph Perrye and Seidner and Seidner, be and they and each of them are hereby discharged.”

After the dismissal of the citation petition and on August 25, 1966, “Irving Eisenberg, on behalf of himself and Attorney Paul I. Baikoff,” filed their petition in decedent’s estate for fees and costs pursuant to section 41 of the Civil Practice Act.

In substance, the 4-page petition for fees related in detail the probate proceedings and the two appeals to this court and alleged (paragraph 14): “Petitioners now show, that all the information these respondents testified to, and disclosed, via oral and written testimony and exhibits at such hearing of July 25, 1966, they did in fact have in their possession and to their knowledges substantially before the above described proceedings in 1960, when petitioners filed their interrogatories. The undersigned petitioners charge further, that these respondents, all of them, could have and should have, in justice and speedy rendering of justice, in Equity, disclosed all such evidence and documents, at the proceedings so filed in 1960. Instead, in order to obtain answers and data, all of which were peculiarly within the sole knowledge of these several respondents, jointly and severally, the petitioners were compelled to file so many involved and costly proceedings — it is evident now, were totally uncalled for and unnecessary — if these respondents had answered in 1960 the same ... as they did on July 25, 1966, which they were finally compelled to do — after so much evasive tactics .... We say it is no less than shocking.” (Paragraph 17.) “We charge [Seidner & Seidner] obstructed proper court procedures by such failures to disclose what petitioners were, in law and justice, entitled to know of, reasonably soon after the initial proceedings were filed in 1960.”

The petitioners alleged that they spent at least 1,000 hours on the various and many hearings, including the various appeals, and “that by the provisions of section 41 of our Civil Practice Act, in Equity and good conscience, . . . these respondents all jointly and severally should be directed and ordered to compensate petitioners fairly, equitably for such obstructions of hearings, justice, the great waste of time and expense by petitioners, all of which were so unnecessary.”

The record indicates that the assets which were the subject of the interrogatories and the citation proceedings amounted to approximately $4,000. After a hearing, the Probate Division on January 20, 1967, dismissed the petition of Irving Eisenberg for attorneys’ fees with prejudice. That order is the subject of the instant appeal.

Section 41 of the Civil Practice Act covers “allegations and denials, made without reasonable cause and not in good faith, and found to be untrue . . . .” In Greengard v. Cooper, 78 Ill App2d 86, 221 NE2d 775 (1966), it is said (p 89):

“Section 41 is an attempt by the legislature to penalize the litigant who pleads frivolous or false matters or brings a suit without any basis in law and thereby puts the burden upon his opponent to expend money for an attorney to make a defense against an untenable suit. . . . Allowance of attorney’s fees under this section is discretionary. The trial court can exercise that discretion only when the record discloses evidence of bad faith on the part of the pleader.”

In Horween v. Dubner, 68 Ill App2d 309, 216 NE2d 288 (1965), it is said (p 320):

“It must be assumed that attorneys in filing pleadings, have due regard for their duties and responsibilities as officers of the court. Attorneys in filing pleadings are permitted to exercise a broad discretion, based on honest judgment, from the facts presented to them.”

Initially, it is our opinion that a proceeding under section 41 of the Civil Practice Act may be filed and disposed of in a pending estate. See provisions of chapter 3 — Administration of Estates — Illinois Revised Statutes. Although the instant petition was not filed during the pendency of the decedent’s estate, we think the posture of the citation proceedings, which continued after the executor’s final account was approved, was sufficient to warrant consideration of the petition in the probate proceedings.

Also, it is our opinion that a section 41 petition for attorneys’ fees and expenses should be filed by a party to the litigation and not by the attorneys performing the services. However, in an attempt to end this litigation, we have decided to consider the petition for fees on its merits.

We agree that the quest for the assets of a deceased person is at times very difficult and so important that it calls for a liberal construction of the power of the court in aid of an attempt to secure information or recovery of the assets. Nevertheless, such a quest must be pursued with discretion, and we think there was needless and extended litigation in this relatively modest estate.

We have considered the instant petition for attorneys’ fees in the light of the foregoing principles, and we accept the contentions of counsel for both parties that they proceeded at all times “with reasonable cause and in good faith.” As we are not persuaded that this record affords justification for relief under section 41, we conclude the trial court properly dismissed the instant petition. Therefore, the order of the Probate Division of the Circuit Court is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    People of the State of Illinois, Appellee, v. Samuel Morgan, Appellant.
    Gen. No. 52,194.
    First District, Fourth Division.
    July 17,1968.

      Harold Turner and Sheldon Golding, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John F. Ward, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Charge : Soliciting for a prostitute.

Judgment: After a bench trial the defendant was found guilty and sentenced to thirty days in the House of Correction and fined $50.

Points Raised on Appeal : Defendant was not proved guilty beyond a reasonable doubt, and defendant was entrapped by the arresting police officers.

Evidence : The evidence introduced by the State was that on March 2, 1966, at approximately 4:30 a. m., Sgt. William Malone of the Chicago Police Department, went to a hotel at 176 North Clark Street, where he asked the desk clerk, a Mr. Purcelliers, if a man named Sam was around. When the defendant, Sam Morgan, came down Sgt. Malone asked him “if he would fix me up”; the defendant said he could but that the Sergeant would first have to check into a room. The two then went up in the elevator and the Sergeant asked the defendant what the cost would be and was told $50. The defendant then took the Sergeant to the room and said the girl “would be there.” A few minutes later a girl (now known as Julie Davis) entered the room and said she would have sexual intercourse with the Sergeant for $50. The officer gave her $50; she disrobed, and was arrested.

The defendant testified in his own behalf that on the day in question he was employed as a bellhop and elevator operator at the Astor Hotel, 176 North Clark Street; that Officer Malone asked him to pick out a room for him, and he suggested room 544, adding that that floor had been newly decorated; that they went on the elevator to the fifth floor and no more was said between them until they reached the room, when the officer said he had been in the hotel' the previous summer. The defendant testified that at no time did he offer to send a girl to the officer, nor did he receive any money to send a girl. On cross-examination he stated he had known Julie Davis as a guest in the hotel for a couple of days. Later he testified that he knew her only from six o’clock Tuesday morning and had never seen her before that. He also testified that he did not see her on the Wednesday morning in question.

Julie Davis testified on behalf of the defendant that she had lived in the Astor Hotel for about one week at the time of her arrest; that she was on her way to her room when she walked past the room occupied by Sgt. Malone; that the door was open and he motioned her to come in; that when she went in he offered her $50 to go to bed with him; that she took the $50, disrobed and was arrested. She testified that she knew the defendant was the bellhop and that she had seen him once or twice before. When asked if she had seen him in the morning of her arrest her answer was, “I may have, I could not say no.”

Opinion : The argument of the defendant in this court that he was not proved guilty beyond a reasonable doubt, essentially involves a determination of the credibility of the witnesses testifying at the trial. It is so well settled as to require no citation of authorities that a determination of the credibility of the witnesses in a bench trial rests upon the trial judge, and that his finding will not be disturbed in the Appellate Court unless it is so unsatisfactory or unreasonable as to raise a serious doubt of defendant’s guilt. People v. Reaves, 24 Ill2d 380, 183 NE2d 169; People v. Boney, 28 Ill2d 505, 192 NE2d 920. This was not the case here. The finding of guilty was adequately based on the evidence.

As to the defense of entrapment, there is no entrapment where the law enforcement officer merely provides an opportunity for the commission of a crime by one who is already so disposed. “The distinction that must be drawn is between the inducement of an otherwise innocent person and the apprehension through lawful artifice of an individual already engaged in criminal activity.” People v. Lewis, 26 Ill2d 542, 545, 187 NE2d 700. See also our discussion of this subject in People v. Washington, 81 Ill App2d 162, 167-171, 225 NE2d 673. Where the defense of entrapment is not urged in the trial court, as is the situation in the instant case, it is not available on appeal. People v. Redding, 28 Ill2d 305, 192 NE2d 341. Furthermore, the defense in this case is incompatible with entrapment and is therefore a conclusive bar to this court’s consideration of the defense of entrapment as set out in People v. Calcaterra, 33 Ill2d 541, 213 NE2d 270, where the court said at page 546:

“The defense of entrapment, however, is not available to an accused who, like defendant, denied having committed or participated in an unlawful act. People v. Outten, 13 Ill2d 21.”

See also People v. Shaw, 89 Ill App2d 285, 294, 233 NE 2d 73.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.

       Ill Rev Stats 1965, c 38, § 11-15(a). Any person who performs any of the following acts commits soliciting for a prostitute:
      (2) Arranges or offers to arrange a meeting of persons for the purpose of prostitution; . . .
      Committee Comments: The following two subsections then expand the concept of solicitation to include the essential activities of a middle-man who might not initiate the suggestion — but whose participation in arranging the activity is such as to be vital to the engagement. Thus, in subsection (a)(2) the person who arranges or offers to arrange a meeting of persons for purposes of prostitution is covered. This would cover the situation of an elevator operator or bellhop in a hotel who establishes contact between a patron and a prostitute who is living in the hotel or who will visit the patron’s room if summoned.

       Ill Rev Stat 1965, c 38, § 7-12. Entrapment. A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.


author: MR. JUSTICE LYONS

text:
    Estate of Peter D. Pecoulas, a/k/a Pericles D. Pecoulas, Deceased. Peter Angelakos, Claimant-Appellee, v. John L. Alex, as Administrator of the Estate of Peter D. Pecoulas, a/k/a Pericles D. Pecoulas, Administrator-Appellant.
    Gen. No. 52,311.
    First District, Second Division.
    July 9,1968.

      Peterson, Lowry, Rail, Barber & Ross, and Peter G. Anagnost, of Chicago (Peter M. Sfikas, of counsel), for appellant.
    Elliott Kohn, of Chicago, for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal in a probate proceeding by respondent, John L. Alex, as administrator of the estate of Peter D. Pecoulas, deceased, from the entry of an order by the Circuit Court, after a full hearing on the evidence, allowing a claim in the decedent’s estate in the amount of $1,500.

The cause of action on the debt as asserted below by petition was predicated upon certain alleged oral inter vivos loans made to the deceased by the petitioner-claimant, Peter Angelakos, which claim Angelakos purported to evidence by the production of three personal checks drawn in equal sums of $500 by the claimant to the order of the deceased and negotiated through blank endorsement by him (attached to petition as Claimant’s Exhibit Nos. 1, 2 and 3). The case proceeded to a trial of the cause without objections to the pleadings of either party. The only questions raised by this appeal concern the propriety of the trial court’s admission of the three checks into evidence over objection of respondent, and the sufficiency of the evidence to otherwise support the allowance of the claim.

The extent of the evidence offered by the claimant consisted entirely of the testimony of one William Kilstrom. It was initially elicited from the witness that he and the claimant worked together, and that the claimant was related by marriage to decedent’s niece. Kilstrom testified that on July 7, 1964, he had occasion, at his place of employment, to witness a conversation between the claimant and the deceased which'was spoken in a mixture of the Greek and English tongues. The witness admittedly possessed no knowledge or understanding of the Greek language. Kilstrom related that subsequent to this conversation the two principals walked off to one side, approximately 20 feet away, and he saw the claimant write something on a small piece of yellow paper about the size of a personal check and hand it over to the deceased. Without elaborating further as to the details of the ostensible transaction, Kilstrom added that he had witnessed similar occurrences on October 3, 1964, and November 10, 1964, which dates, as he correctly observed, corresponded exactly to the respective dates subscribed on the three aforementioned checks then marked as exhibits for identification.

On further direct examination, Kilstrom stated that he could not identify any of the signatures appearing on the respective exhibits, be they those of the maker or the payee by endorsement. Asked if he knew whether the deceased had, in fact, borrowed money from the claimant, the witness responded, “I do not know, but Peter Angelakos told me he loaned money to Peter Pecoulas.” Respondent made no objection to this statement. It was at this juncture in the lower court proceedings that the three checks were accepted into evidence, over respondent’s objection addressed to the absence of a foundation for their admission.

On cross-examination, Kilstrom conceded that he could not identify Claimant’s Exhibit Nos. 1, 2 and 3. He explained that he had neither overheard any particular sums of money being discussed nor had an opportunity to observe any of the writings made on the slips of paper. The witness reaffirmed his previous testimony that the deceased had never acknowledged an indebtedness to Angelakos in his presence relative to the events he had described. This was the extent of the evidence and testimony adduced at the trial.

It is manifest from the state of the record that the court below erred in admitting the three claimant’s exhibits into evidence. The claimant endeavors to substantiate his position by reference to a suggested presumption favoring the authenticity of these documents, citing in addition the absence of any testimony by respondent to refute the genuineness of the signatures on the checks. By so doing, the claimant evidently chooses to ignore the distinction that his action is not one brought upon the checks as such, and otherwise governed by our Commercial Code (see Ill Rev Stats (1965) chapter 26, par 3-307(1) (a), (b)), but rather is a claim of indebtedness independently founded upon an oral agreement/s as is allegedly evidenced by the instruments upon which his case must rely. Hence, the admissability of the exhibits are to be adjudged from the standpoint of the ordinary rules of evidence controlling such circumstances.

While the court reposes confidence in the trial judge’s apparent belief in the legitimacy of the claim itself, we are forced to the logical conclusion that the admittance of the exhibits was premised upon the erroneous assumption that respondent, by his failure to call any rebuttal witnesses, admitted to the authenticity of the checks. To the contrary, section 35(2) of our Civil Practice Act quite clearly states:

“The allegation of the execution or assignment of any written instrument is admitted unless denied in a pleading verified by oath, except in cases in which verification is excused by the court. If the party making the denial is not the person alleged to have executed or assigned the instrument, the denial may be made on the information and belief of that party.” (Ill Rev Stats (1965) c 110, par 35(2).)

Here, the answer directed by respondent to the allegations of the petition was in all respects sufficient in form and content to deny and join issue as to the genuineness of the deceased’s endorsing signatures on the checks. Neboshek v. Berzani, 42 Ill App2d 220, 191 NE2d 411 (1963). Moreover, by the clear import of the statute, the efficacy of that denial was in no way ameliorated by the fact that the answer and supporting affidavit were made upon the pleader’s information and belief as to the truth of that allegation. Most importantly however, by respondent’s denial, the issue crystallized, operating so as to destroy all of the legal presumptions which would have been otherwise indulged in with respect to the admitted execution, delivery and assignment of the instruments involved. In re Estate of Herr, 16 Ill App2d 534, 148 NE2d 815 (1958).

The claimant cannot avoid the consequences of his own inaction by now contending that respondent’s verification did not meet the standards set forth by the statute. Suffice only to say that the claimant addresses objection to the form of the pleading for the first time on appeal and is accordingly deemed to have waived the defect, if it existed, for consideration on review. McGregor v. Thor Power Tool Co., 72 Ill App2d 24, 217 NE2d 822 (1966); In re Estate of Herr, supra.

It is thus abundantly evident that the claimant wholly failed to lay any foundation by testimony of identification and authenticity to warrant the admission of these checks into evidence. Kilstrom apparently either did not overhear or possibly understand the substance of these conversations. He did not have an opportunity to observe the nature of the writing made by the claimant on the slips of paper, nor could he identify the signatures of the principals to the alleged transaction. Indeed, the witness conceded on cross-examination that he could not even identify Claimant’s Exhibit Nos. 1, 2 and 3. It is equally apparent that the deceased had never acknowledged such an indebtedness in Kilstrom’s presence. Absent these factors in the record, no competent and persuasive evidence appears to establish some relevancy between the checks drawn to decedent’s order and the purported loans. This, as contended, was thus prejudicial to respondent’s ease.

In view of our conclusion, there remains very little evidence to support the claim. It would, however, appear that as a consequence of claimant’s reliance on the erroneous admission of the exhibits into the record, additional available evidence as to the legitimacy of his claim had not been presented. In the interests of fostering a justiciable determination of the controversy, we think the cause should be remanded for a new trial to enable the parties to adduce this and any further evidence to support their respective positions.

For the above reasons, the order is reversed and the cause is remanded for further proceedings not inconsistent with the views expressed in this opinion.

Order reversed and cause remanded with directions.

BURKE, P. J. and MCNAMARA, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Appellee, v. Dennis Cardenas, Appellant.
    Gen. Nos. 52,312, 52,313.
    First District, First Division.
    July 22,1968.
    Rehearing denied September 17,1968.

      Howard T. Savage and William P. Gerber, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is a consolidated appeal from two separate convictions. In case number 52,313 the defendant, Dennis Cardenas, was charged with having committed the crime of forcible rape on December 2, 1965. In case number 52,312 he was charged with having committed the crime of attempt rape on December 20,1965.

We first address ourselves to case number 52,313. This case was called to trial on December 27, 1966. The defendant pleaded not guilty, and signed a jury waiver. After a trial, the trial judge found him guilty of rape as charged in the indictment. On the morning of January 20, 1967, judgment was entered on the finding of guilty. At this time the defendant’s motions for a new trial, in arrest of judgment, and for probation were denied, and the court sentenced him to the State Penitentiary for a term of not less than two and not more than ten years.

In number 52,313 the defendant contends, on appeal, that his identification by the prosecutrix as the party who had raped her was so unsatisfactory that his guilt was not established beyond a reasonable doubt, and therefore, his conviction on the rape charge should be reversed.

Janice June Pettigrew, the prosecutrix, testified that on December 2, 1965, she sent four of her children off to school. Then, at about 8:30 in the morning, she climbed back into bed with her two-year-old baby beside her. She fell asleep immediately. Shortly thereafter, between 8:30 a. m. and 9:00 a. m., the prosecutrix was awakened by a man placing his hand on her leg. Upon awakening, the prosecutrix discovered a man wearing a navy blue stocking cap standing by the side of her bed. She further testified that this man was the defendant. He immediately covered her face with a pajama top and climbed on to the bed, placing himself on top of the prosecutrix. During the ensuing struggle, Mrs. Pettigrew managed to pull the pajama top off her face, and she looked at the defendant for about two minutes. The defendant then struck her in the face. According to the prosecutrix, the defendant called out, “Dave, I’m having trouble,” and he told her that if she didn’t cooperate “Dave” would kill her baby. At this point Mrs. Pettigrew stopped struggling and allowed the defendant to have sexual intercourse with her. After the defendant had finished, the prosecutrix removed the pajama top from her face and observed him for another minute and a half before he left.

Mrs Pettigrew testified that light was coming into the bedroom from a window which was located above the foot of the bed; the shade had been drawn on the window, but it didn’t cover the window completely. At the time of the incident it was daylight outside, and light was also coming into the bedroom from the windows in the living room.

The prosecutrix further testified that she went to the police station three times following the incident to view suspects. On two occasions there were lineups and on one visit the police showed her a single suspect. During these visits to the police station Mrs. Pettigrew was shown seven suspects, and she failed to identify any of them as being the man who had raped her. Subsequently, on December 20, 1965, at around 5:30 in the morning, a police officer arrived at Mrs. Pettigrew’s apartment and asked her if she would like to view a suspect. She said that she would; whereupon the defendant was brought into her apartment, and she immediately identified him as the man who had raped her.

Police Officer George Carlson testified that he received a radio call on his police car radio shortly after nine o’clock a. m. on December 2, 1965, directing him to proceed to the apartment of the prosecutrix. After he arrived, Mrs. Pettigrew identified her assailant as being a white man, about twenty-five years of age, wearing a brown suede jacket and a blue stocking cap.

Police Sergeant John Mahoney testified that he arrested the defendant during the early morning hours of December 20, 1965. He further testified that the defendant, at the time of his arrest, was wearing “a navy watch-type knit cap ... it was navy blue.”

The defendant took the stand and denied that he had raped the prosecutrix. He stated that at the time of the incident in question he was at home. He further testified that when the police arrested him on December 20th, they told him that they knew he was the man they were after because Mrs. Pettigrew had been raped by a man with a scar on his face. He testified that although he owned a navy blue stocking cap he didn’t believe he was wearing it at the time he was arrested.

The defendant’s wife testified that on the morning of December 2, 1965, the defendant was at home asleep at the time during which the rape took place. She further testified that her husband wore a navy blue stocking cap until November of 1965 when she threw it away, and that he never purchased another one.

The defendant contends that the foregoing evidence did not contain facts sufficiently probative of his identity as the party who raped the prosecutrix to establish his guilt of the offense charged beyond a reasonable doubt. In support of his contention he argues: (1) that the light in the room where the rape took place was inadequate for the prosecutrix to properly identify her assailant; (2) that the prosecutrix failed to mention to the police in identifying her attacker the presence of a facial scar which the defendant had at the time of the occurrence; (3) that he had a reasonable alibi; and (4) that his identification was substantially weakened due to the fact that the prosecutrix did not pick him out of a lineup held at a police station.

The identification of an accused as the perpetrator of a particular crime will be sustained on appeal on the basis of a positive identification made by a single credible witness. People v. Guido, 25 Ill2d 204, 184 NE2d 585. Questions as to the credibility and weight of testimony and the inference to be drawn therefrom by the trier of fact are, in a case tried without a jury, best left for resolution to the trial judge, and we will not substitute our judgment for his determinations in this regard unless it appears from the record that there is clearly a reasonable doubt as to the defendant’s guilt. People v. Morrison, 23 Ill2d 201, 177 NE2d 833.

The prosecutrix positively identified the defendant as the man who had raped her when he was brought to her apartment, and again at the trial. Her testimony, if believed by the trial judge, was sufficient to identify defendant as her assailant beyond a reasonable doubt. She testified that although the shade on the window in the bedroom was drawn, light was coming into the room from where the shade didn’t cover the window. She further testified that at the time of the rape it was daylight outside and light was also coming into the bedroom from the windows located in the living room. She stated that she had three separate opportunities to observe the defendant when he was in close proximity to her. On the basis of her testimony the trial judge was justified in concluding that the prosecutrix was able to properly identify her attacker. Furthermore, we point out in this regard that the description of her attacker given by the prosecutrix to the police shortly after the incident, in which she stated that the rapist was wearing a navy blue stocking cap, was corroborated by the testimony of one of the arresting officers who stated that the defendant, at the time of his arrest, was wearing the type of cap mentioned by Mrs. Pettigrew.

The trial judge was not required to believe the alibi testimony offered in behalf of the defendant. People v. Setzke, 22 Ill2d 582, 177 NE2d 168. The credibility and weight of identification evidence is not destroyed by the failures either to mention specific physical characteristics of the defendant or to pick him out of a lineup. People v. Calloway, 74 Ill App2d 418, 221 NE2d 73; People v. Crenshaw, 15 Ill2d 458, 155 NE2d 599. As we have already pointed out the defendant was positively identified by the prosecutrix both in and out of court. Any questions as to the weight and credibility of her testimony were for the trial judge to resolve. We conclude, therefore, that in cause number 52,313 the defendant was proven guilty beyond a reasonable doubt.

We next turn our attention to cause number 52,312 in which the defendant was charged with the crime of attempt rape, a crime allegedly committed at a different time and place and involving a different victim than the offense charged in 52,313. The attempt rape charge came up for trial on the afternoon of January 20, 1967, before the same judge who had presided over the rape trial, and who had sentenced the defendant in the latter cause that morning. The defendant withdrew his previously entered plea of not guilty and pleaded guilty to the charge of attempt rape. The trial judge sentenced the defendant to a term of not less than two and not more than ten years in the penitentiary, the sentence to run concurrently with the sentence imposed in the rape conviction.

The record reveals that at the time sentence was imposed in the rape case the trial judge did not inform the defendant of his right to appeal and of his right, if indigent, to be furnished with a transcript of the proceedings free of cost and with an attorney on appeal as provided for by Supreme Court Rule 605. (Ill Rev Stats 1967, c 110A, § 605.) The defendant appeals from the judgment entered in number 52,312, contending that this failure of the trial judge to comply with Supreme Court Rule 605 in effect coerced him into entering a plea of guilty. He supports this contention on the theory that he would not have pleaded guilty to the charge of attempt rape except for the fact that (since he was indigent) the failure of the trial judge to inform him of his right to appeal in forma pauperis from the rape conviction led him to believe that the latter judgment could not be appealed from, thereby inducing a belief that it would be useless to contest the attempt rape charge.

The defendant concedes that the failure of the trial judge to inform him of his right to appeal in forma pauperis did not hinder in any way his prosecution of an appeal from the rape conviction, and indeed, he has been represented on appeal by private attorneys of his own choice and the same attorneys filed their additional appearance in the trial court after the defendant was sentenced. Furthermore, it appears from the record that defendant’s attorney at trial discussed with the defendant the costs of an appeal from the rape conviction prior to the imposition of sentence in the attempt rape cause. In any event, any misapprehension the defendant may have had as to his right to appeal from the rape judgment was cured by the trial judge when he informed the defendant of his right to appeal in forma pauperis from that judgment immediately after imposing sentence on the attempt rape charge. The defendant, at no time called to the trial judge’s attention the fact, if such was the case, that his plea of guilty had been induced by a mistake of law on his part. The defendant did not ask the trial judge to vacate his plea of guilty nor did he seek to withdraw said plea for any reason; he has raised the issue of the involuntariness of his plea for the first time on appeal. The trial judge should have been given an opportunity to determine whether to allow the withdrawal of the guilty plea. “A claim of error based on the fact that a plea of guilty was not voluntarily and understandingly made will not be considered on appeal where no objection was raised in the trial court.” 24 CJS, Criminal Law, § 1673 (3).

The judgments and convictions of the defendant are, therefore, affirmed.

Judgments affirmed.

ADESKO and MURPHY, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Neal, Defendant-Appellant.
    Gen, No. 52,335.
    First District, Third Division.
    September 12,1968.

      Patrick A. Barton, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The defendant was charged with the murder of one Vivian Montgomery. In a trial without a jury he was found guilty and sentenced to serve a term of 14 to 20 years in the State Penitentiary. He takes this appeal contending that the State failed to prove the corpus delicti of the crime; that he was not proven guilty beyond a reasonable doubt and that he was deprived of a fair and impartial trial because of prejudicial conduct by the State during closing argument. A summary of the evidence adduced at the trial follows.

Officers Michael Burns and Robert Kulovitz of the Chicago Police Department testified that at about 1:00 a. m. on July 19, 1966, they responded to a radio call that a woman had been shot in a car at 7702 South Phillips Avenue, Chicago. When they arrived at the scene, they left their car and approached a parked car from which the defendant was slowly alighting with a revolver in his hand. Both officers ordered him to drop the gun, but he continued to hold it, aiming it between them. Officer Burns grabbed the gun from the defendant and pushed him against the car. Another officer arrived and put handcuffs on the defendant and Burns went around to the passenger side, where he observed a woman slumped over on the front seat. She was semiconscious, had blood on the side of her head and wore no clothes above the waist. The officers testified that the gun they took from the defendant had been fired twice and that there were four live shells remaining in the weapon. Inside the car they found an empty whiskey bottle, a blanket, a bag containing picnic supplies and a wallet containing identification signed “Vivian Montgomery,” and “Vivian Neal.” They testified that they did not find any of the victim’s clothes.

Dr. Eugene Tapia testified that on July 19, 1966, he examined the body of Vivian Montgomery and concluded that she had died as a result of a bullet wound to the brain. The bullet had entered the left temporal region of the head just above the left ear in a trajectory to the right and downward. He further testified that there were no powder burns on the left ear or on the left side of the face. He ordered a blood test and determined from it that the victim had had a drink or two, but was not intoxicated at the time of the murder.

Burt Nielson, a firearms identification technician for the Chicago Police Crime Laboratory, testified that he tested the revolver taken from the defendant and that it was his opinion that it had fired the bullet which the Coroner removed from Vivian Montgomery’s brain. He further testified that his tests revealed that it was necessary to apply four and one-half to fifteen pounds of pressure to the trigger of the revolver before it would fire. That is twice as much trigger pressure as is required to fire an ordinary police service revolver.

The defendant testified that he had been living with Miss Montgomery for about three months; that on July 18, 1966, they left home at 1:00 p. m. to go to a picnic at Red Gate Woods; that they drank a pint of whiskey at the picnic grounds and that while there, Miss Montgomery pulled out a revolver which she owned and fired at something on the ground, apparently thinking it was an animal. After the picnic they went to a drive-in movie at 74th Street and Western Avenue, Chicago. At the drive-in Miss Montgomery drank quite a bit and because it was hot she removed her blouse which was all she had on above the waist. Defendant testified that she threw the blouse out of the car window and rode all the way home with nothing on above the waist. He further testified that when they were about two blocks from home she took the revolver from her purse and in what defendant thought was a joking manner, threatened to shoot him. She pointed it at him and he grabbed her right hand in an attempt to shake the revolver from her grasp. Defendant testified that she turned his head and told him to watch the road; that the next thing he heard was a shot and that the revolver at that time was about one foot from her head. He testified that his only thought then was to get medical attention for Miss Montgomery and that he drove to his home, where he called the operator and asked her to notify the authorities and that he then returned to the car to wait for help.

Defendant’s first contention is that the State failed to prove the corpus delicti of the crime. In a trial

for murder the corpus delicti consists of two essential elements — the fact of death and the fact that the death was produced by the criminal agency of some person other than the deceased. People v. Willson, 401 Ill 68, 81 NE2d 485; People v. Bentley, 357 Ill 82, 191 NE 230. Both must be established beyond a reasonable doubt. People v. Manske, 399 Ill 176, 77 NE2d 164; People v. Ahrling, 279 Ill 70, 116 NE 764; Hoch v. People, 219 Ill 265, 76 NE 356. The defendant contends that the State did not prove beyond a reasonable doubt that the death of Vivian Montgomery was produced by a criminal agency. The corpus delicti may be proved by circumstantial evidence or by the defendant’s own testimony given in defense. People v. Manske, supra; People v. Hanson, 359 Ill 266,194 NE 520. The burden was not on the defendant to prove his innocence, but when he elected to explain the death of the deceased, it was incumbent upon him to tell a reasonable story or to be judged by its improbabilities. People v. Meyers, 412 Ill 136, 105 NE2d 746; People v. Lofton, 64 Ill App2d 238, 212 NE2d 705. The defendant’s story that Miss Montgomery shot herself accidentally while holding the revolver in her right hand is incompatible with the other evidence adduced at the trial. The bullet entered the victim’s head above the left ear in a trajectory to the right and downward. For the victim to have inflicted such a wound herself would have been an amazing feat, but that she did so accidentally without leaving any trace of powder burns on her head and with a revolver which required fifteen pounds of trigger pressure to fire is incredible. The evidence proves beyond any reasonable doubt that Miss Montgomery’s death was produced by criminal means.

Defendant’s second contention is that he was not proven guilty beyond a reasonable doubt. He argues that where the proof is entirely circumstantial, any reasonable hypothesis consistent with the defendant’s innocence must be adopted and that his account of the facts relating to Miss Montgomery’s death presents such a reasonable hypothesis. People v. Wilson, 400 Ill 461, 81 NE2d 211. The facts we have stated in the preceding paragraph reveal that it is not a reasonable hypothesis. His defense, that the shooting was accidental, must stand or fall on the weight and credibility of his own testimony. People v. Lofton, 64 Ill App2d 238, 212 NE2d 705. As already stated in our consideration of the defendant’s first point, the trial court was warranted in finding that the defendant did not present a reasonable or credible defense. The evidence presented by the State was sufficient to prove the defendant guilty beyond a reasonable doubt.

Defendant’s third contention is that he was deprived of a fair and impartial trial by the prejudicial conduct of the State. In his closing argument the State’s Attorney mistakenly characterized People v. Warren, 52 Ill App2d 374, 202 NE2d 131, as involving the murder by a man of his wife, when in fact it involved the murder by one man of another. The identity of the victim in the case had no bearing on the point for which the case was cited and consequently the error could not have prejudiced the defendant.

Other points raised by the defendant relating to the distinction between cases cited by the State’s Attorney and the instant case are equally inconsequential in a case tried by the court. We do not deem it necessary to encumber the opinion with a discussion of them.

The defendant was not deprived of a fair and impartial trial and his guilt was established beyond a reasonable doubt.

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE BURKE

text:
    James J. Keane, Administrator of the Estate of Josephine M. Keane, Deceased, Plaintiff-Appellant, v. City of Chicago, a Municipal Corporation, Defendant-Appellee, and Lee Arthur Hester, a Minor, Defendant.
    Gen. No. 52,343.
    First District, Second Division.
    June 25,1968.
    Coburn and Kelly, of Chicago (Edward J. Kelly, of counsel), for appellant.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Roclyne E. LaPorte, Assistant Corporation Counsel, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

This was an action to recover damages for the wrongful death of plaintiff’s deceased, a Chicago public school teacher who was killed while on the premises of the school to which she had been assigned. Appeal is taken from the order entered on motion of the City of Chicago, striking Count I of the complaint and dismissing the action as to the City. Plaintiff maintains that, under the circumstances alleged in Count I of the complaint, the City owed a duty to the deceased to furnish police protection, and that the doctrine of governmental immunity does not absolve the City from liability. We disagree.

The complaint alleges, inter alia, that Josephine M. Keane was employed by the City of Chicago Board of Education as a school teacher and was assigned to the Lewis-Champlin Grade School in that capacity. The complaint alleges that on April 20, 1961, Mrs. Keane while on the school premises in her capacity as a school teacher was assaulted and killed by Lee Arthur Hester, a student enrolled at the school. It further alleges that the City was negligent in failing to assign police protection to the school, although it knew or should have known that failure to provide this protection would result in harm to persons lawfully on the premises in the removal of police protection from the school prior to April 20, 1961, although it knew or should have known of the dangerous condition then existing at the school and in permitting a dangerous condition to exist at the school.

The City’s motion to strike Count I of the complaint alleged that the operation of the police department was a governmental function rather than a proprietary function, and that it was therefore immune from liability for any acts or matters alleged in the count.

Plaintiff requests this Court to "take one step further in the decimation of the doctrine of governmental immunity,” by holding the City liable as a matter of law. Plaintiff reasons that because the death of Mrs. Keane occurred after the decision in the case of Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill2d 11, 163 NE2d 89, which altered the doctrine of governmental immunity from liability arising out of the torts committed by governmental employees, but before the effective date of the “Local Governmental and Governmental Employees Tort Immunity Act” of 1965 (Ill Rev Stats 1965, c 85, Par 1-101 et seq.), this Court may and should extend the doctrine set out in the Molitor case to include the circumstances of the instant case.

Failure on the part of a municipality to exercise a governmental function does not, without more, expose the municipality to liability. See Adamczyk v. Zambelli, 25 Ill App2d 121, 166 NE2d 93; Olipra v. Zambelli, 28 Ill App2d 460, 171 NE2d 798; Arms v. City of Knoxville, 32 Ill App 604, 611. Liability may be imposed upon a municipality where the tortious acts of its employees are either affirmative or wilful in nature, or where the municipality’s employees’ acts are “ministerial” or “proprietary,” rather than “governmental.” See e. g., Peters v. Bellinger, 22 Ill App2d 105, 159 NE2d 528; Free v. Hymbaugh, 23 Ill App2d 211, 162 NE2d 297. See also Gardner v. Village of Chicago Ridge, 71 Ill App2d 373, 219 NE2d 147, where liability was imposed upon the municipality due to the nonfeasance of its police officers when they affirmatively assumed a “special duty” to care for the safety and well-being of the plaintiff by placing him in a position where injury to him was foreseeable.

In the instant case, the duty of the City to protect Mrs. Keane from criminal acts was no more than the general duty to all citizens to protect the safety and well-being of the public at large. Failure of a policeman to prevent others from violating the law, to the injury of some third party, does not of itself subject the municipality to liability for the injuries. Adamczyk v. Zambelli, 25 Ill App2d 121, 128, 166 NE2d 93. To hold that under the circumstances alleged in the complaint the City owed a “special duty” to Mrs. Keane for the safety and well-being of her person would impose an all but impossible burden upon the City, considering the numerous police, fire, housing and other laws, ordinances and regulations in force. The trial court correctly found that the ultimate facts alleged in Count I of the complaint do not state a cause of action. Kay v. Ludwick, 87 Ill App2d 114, 117, 230 NE2d 494.

For these reasons the order is affirmed.

Order affirmed.

MCNAMARA and LYONS, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    Abbey Electric Company, an Illinois Corporation, Plaintiff-Appellant, v. Hilmon Simpson, Defendant-Appellee.
    Gen. No. 52,344.
    First District, Fourth Division.
    July 24,1968.

      Friedman and Rochester, of Chicago (Richard R. Rochester, of counsel), for appellant.
    Minn and Auslander, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff appeals from the order of March 29, 1967, vacating a default judgment entered against defendant on November 14,1966.

Plaintiff’s complaint filed in November of 1964 alleged that in addition to the $3,471 worth of labor and materials called for under a contract with defendant, it provided $2,594.09 more labor and materials at defendant’s instance, that defendant paid only $3,000 and that plaintiff was still owed $3,065.09. On December 2 defendant attempted to make a special and limited appearance in order to move to quash plaintiff’s summons. On March 3, 1965, the court ordered that the special appearance stand as a general appearance, denied the motion to quash and set the trial for May 24. Defendant moved for a bill of particulars on March 16 and plaintiff filed its amended complaint on June 23. On October 27, 1966, having served notice, plaintiff moved for a default judgment for failure to file an answer. The court entered the motion and continued the cause until November 14 and when defendant then failed to appear granted the default judgment for $3,065.09 and costs. On December 12, 1966, defendant filed a motion to vacate the judgment and dismiss the action. No action was taken on this motion. On January 3, 1967, defendant filed another motion to vacate supported by an affidavit identical to the affidavit filed with the December 12 motion. On January 3 the court denied the motion. On February 24 defendant again moved to vacate the judgment and dismiss the suit supported by an amended affidavit. The motion to vacate was again denied. Finally, on March 29, 1967, after being served with a citation to discover assets, defendant again moved to vacate the judgment by filing a petition under section 72 of the Civil Practice Act. On this occasion the judgment was vacated, leave to file an answer granted and the cause set for trial. Defendant filed an answer generally denying the allegations of the complaint.

Plaintiff contends that the court erred on March 29, 1967, in vacating the judgment of November 14, 1966, because (1) on two other occasions the court had denied defendant’s motions to vacate and (2) defendant’s petition shows his own negligence. In In re Estate of Schwarz, 63 Ill App2d 456, 212 NE2d 329, we held that a denial of a motion to vacate precluded the filing of a second motion to vacate, stating on page 459:

Furthermore, if the proliferation of such motions were permitted to its logical extreme, neither appellate review nor finality of judgments could ever be accomplished.

A petition under section 72 of the Civil Practice Act may be filed after thirty days. In Esczuk v. Chicago

Transit Authority, 39 Ill2d 464, 236 NE2d 719, the court stated:

Section 72 of the Civil Practice Act substitutes a simple remedy by petition for various forms of post-trial relief and enables a party to bring before the court rendering a judgment matters of fact which, if known to the court at the time judgment was entered, would have prevented its rendition. (Brockmeyer v. Duncan, 18 Ill2d 502; Glenn v. People, 9 Ill2d 335.) However, a party may not avail himself of the remedy provided by section 72 “unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. (Citations.) Such a motion or petition is not intended to relieve a party from the consequences of his own mistake or negligence.” (Brockmeyer v. Duncan, 18 Ill2d 502, 505.) The burden is upon the petitioner under section 72 to allege and prove the facts justifying relief.

In the instant case we find that defendant’s petition relied on the same grounds for vacatur as had been twice ruled on unfavorably by the trial court; that defendant did not contest the entry of the default judgment although proper notice had been served; and that thereafter defendant did not proceed with diligence. Therefore defendant was not entitled to relief under section 72. Defendant argues that the court’s aim is to do substantial justice and that since he filed his first motion to vacate within thirty days after judgment, the rule of liberal construction found in cases where the motion is made within thirty days should be applied here. However, if defendant desired the application of a rule of construction which he claims is found in cases where a motion to vacate is filed within thirty days, he could have appealed the denial of his first motion. Defendant cites Grizzard v. Matthew Chevrolet, 39 Ill App2d 9, 188 NE2d 59, but in that case the Appellate Court reversed the trial court and denied relief under section 72 on the ground that defendant was negligent in not filing an answer in time. In Nagel v. Wagner, 46 Ill App2d 2, 196 NE2d 728, also cited by defendant, the court affirmed a finding by the trial court that defendant was not negligent since he had not received notice of the trial date.

Since we find no basis for the trial court’s order, the order of March 29, 1967, vacating the judgment of November 14,1966, is reversed.

Reversed.

MCCORMICK, P. J. and ENGLISH, J., concur.

       The Civil Practice Act, section 72 (Ill Rev Stats (1966) c 110, § 72) reads in part as follows:

        (1) Relief from final orders, judgments and decrees, after 30 days from the entry thereof, may be had upon petition as provided in this section.


text:
    Erasmo Ferrer, a Minor, by His Mother and Next Friend, Erma Ferrer, Plaintiff-Appellee, v. Chuck Vecchione and Joseph Vecchione, Defendants-Appellants.
    Gen. No. 52,422.
    First District, Fourth Division.
    July 31, 1968.

      Philip W. Tone, Donald R. Harris, Ernest K. Koehler, and Herbert E. Cleveland, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellants.
    Unger & Unger, of Chicago (Louis P. Miller, of counsel) , for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendants appeal from a judgment in the sum of $150,000 entered upon a jury verdict in favor of plaintiff for injuries he sustained when struck by an automobile driven by defendant Chuck Vecchione (hereinafter referred to as Chuck). Plaintiff sought to establish the liability of Joseph Vecchione, Chuck’s father, (hereinafter referred to as Joseph) on the principle of respondeat superior. On appeal defendants contend that their case was prejudiced (1) by improper cross-examination and (2) by plaintiff’s closing argument to the jury. Defendant Joseph Vecchione also contends that the judgment against him was not supported by sufficient evidence and that a finding of no liability should be entered on his behalf.

Plaintiff received his injury in an accident which took place during the daylight hours on April 21, 1961. Plaintiff, then four years old, was crossing Jackson Boulevard near the intersection of Jackson and Damen Avenue in the company of his father when he was struck by a car driven by defendant Chuck Vecchione. Plaintiff sustained a fractured skull requiring the insertion of a metal plate. There was medical testimony presented at the trial that it was not possible to predict the duration of the resulting nausea and headaches but that plaintiff still suffered these symptoms and that there was a twenty percent chance plaintiff would develop epilepsy. There was some conflict as to whether plaintiff was crossing at the crosswalk or whether he had run out from between parked cars as well as to whether or not defendant had a green light. The investigating officer testified that at the hospital after the accident Chuck appeared confused, and his eyes were red but that he was not intoxicated. Chuck testified that his eyes were red because he had cried a great deal after the accident. The sufficiency of the evidence establishing the liability of defendant Chuck is not questioned.

Defendants first argue that they were prejudiced by repetitive cross-examination of Chuck about his use of drugs in view of Chuck’s denial of such use and the failure to impeach or refute his negative answers. The questions were:

Were you taking anything at all that could influence your judgment or make you confused? [Objection sustained.]

On April 21, 1961, were you using or were you in the habit of using medicine or drug of any kind? [Objection sustained.]

With regard to your physical condition at the time that you gave the deposition, were you at that time using any drug of any kind ? [Witness answered no.]

Had you been using any drugs before the time of the deposition? [Objection overruled. Witness answered no.]

As you are now on the witness stand and you are sworn and giving testimony, from the time of the deposition that you gave in 1965 until this time have you used any drugs of any kind? [Objection overruled. Witness answered no.]

While defending his right to pursue this cross-examination, plaintiff’s counsel said in the presence of the jury:

All right. But I want to ask him with regard to these habits, if I may sir?

Plaintiff now urges that narcotics use is a legitimate area of inquiry, citing People v. Crump, 5 Ill2d 251, 125 NE2d 615. However, in arguing to the trial judge that he should be permitted to pursue this line of questioning, plaintiff’s counsel asserted that these questions were necessary to lay a foundation for subsequent impeachment. Thereupon the court overruled defendants’ objections. The following questions were then asked and answered in the negative:

[F]rom the time of the deposition that you gave in 1965 until this time have you used any drugs of any kind?

Have you been treated in connection with the use of any drugs ?

No evidence was adduced by plaintiff indicating any use of drugs by Chuck at any time. In Gordon v. Checker Taxi Co., 334 Ill App 313, 79 NE2d 632, counsel asked a series of questions concerning whether or not plaintiff had suffered the same injuries for which she was then suing in a previous accident. The court said at pages 318 and 319:

The questions propounded on cross-examination of plaintiff, except the last one, were proper if asked in good faith for the purpose of impeachment in the event of denial, and had objection been made the court would be obliged to overrule the objection. Proof of the facts involved in such questions would obviously affect plaintiff’s present claim for injuries, pain and suffering. Innuendoes involved in such questions are sometimes more damaging than an effort to prove the impeaching facts. When no witness is offered to impeach plaintiff and, therefore, no opportunity for cross-examination, presented, the prejudicial effect springing from such questions cannot always be overcome, and results in an unfair trial to a plaintiff. If, under the guise and pretense of laying a foundation for impeachment, a plaintiff could be asked questions that would affect her credibility, such as a supposed former conviction for a felony (c 51, § 1, Ill Rev Stats 1947 [Jones Ill Stats Ann 107.067]), where production of the record of conviction is not required, and no proof made or offered, when there is a denial of the fact; or suppose questions were asked concerning alleged conversation with others, which involves very damaging supposed admissions against interest, and though denied by the witness, no proof is offered to impeach, such type of cross-examination, if approved, could succeed in defeating many a meritorious cause.

Since defendant answered in the negative to each of the questions relating to drugs and since no impeaching evidence was introduced, we believe the cross-examination of defendant was prejudicial. See also Miller v. Chicago Transit Authority, 3 Ill App2d 223, 121 NE2d 348. This error was aggravated when in closing argument plaintiff emphasized this cross-examination as follows:

Well, the defendant was not intoxicated; and I asked him if he took drugs or medicines and he said no.

For that reason I asked him these questions to explain his red, bloodshot eyes; to explain his disorganized, confused state; his unawareness of where the accident happened.

What does that mean? Does that mean that this defendant was more than confused, or that he was more than disorganized ?

Defendants’ next contention is that another part of plaintiff’s closing argument to the jury was also prejudicial. Plaintiff’s counsel told the jury:

Ladies and gentlemen, this defendant, this man, was present at the scene of this accident who caused this condition of this boy. ... He is not with us. He is not present here today. He didn’t favor us with his appearance yesterday either ....

What interest he has in this case, its outcome; what he cares about it .... He wasn’t here.

But the family of Erasmo Ferrer are here, because they are very interested in the case.

He again referred to defendant’s absence in his argument in reply. In Reed v. Johnson, 55 Ill App2d 67, 204 NE2d 136 counsel argues, at page 76:

He tells that story. That is his sworn version. I believe he is sadly mistaken, and let me say right now there is nothing personal about this. You folks can bring in anything from fifty to one hundred thousand dollars, which is the amount of the ad damnum, which is the right amount here and we are not going to have any personal concern, and the Johnson Bros, don’t. There is nothing personal.

The court there said:

In stating that defendant had no personal concern about the amount of the verdict, counsel clearly and, we think, deliberately implied the existence of insurance.

Plaintiff contends that his argument in the instant case did not imply the existence of insurance. We believe, however, that his argument that defendant was not concerned about the case carried with it a strong implication of insurance. Moreover, defendant’s attitude toward the outcome of the case is in no legitimate way relevant to his liability. This argument was improper and prejudicial.

Defendants also complain of plaintiff’s argument to the jury that plaintiff “will suffer with epilepsy all his life.” The evidence was that there was only a twenty percent chance that plaintiff would ever develop epilepsy. It is well established that counsel’s arguments are limited to the evidence presented. He cannot testify or supply new facts during the closing arguments. Owen v. Willett Truck Leasing Corp., 61 Ill App2d 395, 209 NE2d 868. Plaintiff argues, however, that defendants’ failure to object to this argument bars its review on appeal. In Belfield v. Coop, 8 M2d 293, 313, 134 NE2d 249, the court said that failure to object did not bar review where otherwise “parties litigant cannot receive a fair trial and the judicial process stand without deterioration. . . .” We believe that under this standard this matter is reviewable. The argument was improper.

In view of these prejudicial errors we are reversing the judgment and remanding for a new trial as to both defendants.

Defendant Joseph Vecchione also contends that the judgment against him was not supported by any evidence tending to establish that Chuck Vecchione was acting as his agent when the accident occurred and that the judgment against Joseph should be reversed with a finding that he is not liable. The police officer, after examining a police report, testified that Joseph owned the automobile. Chuck’s testimony that he owned the car was objected to on the ground that the pleadings admitted that Joseph was the owner and that Chuck was his agent. The court ruled it would “sustain the pleading.” Joseph testified that Chuck was the owner and that Chuck was not employed by him. During the trial, plaintiff moved for the admission into evidence of the pleadings. Defendants’ objections thereto were overruled but we cannot ascertain from the record whether or not they were actually received in evidence. We assume, however, that they were, since in defendants’ post-trial motion the following appears:

14. The Court erred in admitting into evidence the complaint and amendment or amendments thereto and the admission of such pleadings in evidence was prejudicial to the defendants.

15. The Court erred in admitting into evidence the original answer filed in the action and the admission of this pleading in evidence was prejudicial to the defendants.

The following instruction to the jury was given:

If you decide that the automobile being driven by Chuck Vecchione was owned by the defendant, Joseph Vecchione, you may infer from such evidence that defendant, Chuck Vecchione was acting as the agent of the owner and within the scope of his au7 thority, unless you find that inference is overcome by other believable evidence. You may consider that inference and any other evidence in the casé in deciding whether defendant, Chuck Vecchione was act-, ing as agent and within the scope of his authority as defendant, Joseph Vecchione’s agent.

This instruction was not objected to either at the trial or on appeal. Under the testimony and other circumstances heretofore mentioned, we believe there was sufficient evidence of Joseph’s ownership of the car to support a verdict against him. Since we are reversing and remanding for a new trial as to both defendants for trial errors, we need not consider the other contentions of Joseph that he be granted a new trial.

The judgment is reversed and the cause remanded for a new trial as to both defendants to be conducted in a manner not inconsistent with this opinion.

Reversed and remanded with instructions.

MCCORMICK, P. J. and ENGLISH, J., concur.

       The answer and amended answer filed on behalf of both defendants admitted that Chuck Vecchione, as the agent, servant and employee of defendant, Joseph Vecchione, was driving the automobile and that Chuck, with the knowledge and consent of defendant Joseph was driving the automobile and that Joseph was the owner thereof.

       At the close of the evidence the court permitted the filing by Joseph of an amendment to the amended answer in which Joseph denied he was the owner of the automobile and denied the agency as alleged in the complaint. No amendment was filed on behalf of Chuck.


text:
    Morris Kozak, Plaintiff-Appellee, v. Pearl Kozak, Defendant-Appellant.
    Gen. No. 52,272. (Abstract of Decision.)
    First District, Second Division.
    August 6,1968.
    Rehearing denied September 9,1968.
    Gromer, Abbott & Wittenstrom, of Elgin (Clarence F. Wittenstrom, Jr., of counsel), for appellant; David J. Zimring, Arnstein, Gluck, Weitzenfeld & Minow, of Chicago (Leo H. Arnstein, Arthur L. Klein, and Robert J. Geiger, of counsel), for appellee.
   Opinion by JUSTICE LYONS. Not to be published in full.


text:
    Monika Andes, Plaintiff, v. Abraham Roskin and Richard Neuberg, Defendants. Richard Neuberg, Counterplaintiff-Appellee, v. Abraham Roskin, Counterdefendant, and Oliver E. Meyer, Third Party Defendant-Appellant.
    Gen. No. 52,227. (Abstract of Decision.)
    First District, First Division.
    September 16,1968.

      Lazzara & Narusis, of Chicago (Holland H. Stimson, of counsel), for appellant; Hubbard, Hubbard, O’Brien & Hall, of Chicago (Alvin G. Hubbard and Edward C. Purcell, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE BUR-MAN. Not to be published in full.


text:
    John Engels, Plaintiff-Appellant, v. R. Antos, Defendant-Appellee.
    Gen. No. 52,319.
    First District, Third Division.
    September 19,1968.
    James L. Tuohy, of Chicago (John L. Martin, of counsel), for appellant.
    Walter C. Wellman, of Lyons, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff sued to recover damages sustained in a collision between two automobiles. In a nonjury trial the court found for the defendant at the close of plaintiff’s case, and the plaintiff now appeals from that judgment. The facts follow.

Plaintiff first called defendant as an adverse witness under section 60 of the Civil Practice Act. Defendant testified that on the day of the accident he got into his car, which was parked facing north on Vernon Street in Brookfield, Hlinois, started the engine and prepared to move from his parking space. He looked to the rear and then forward and saw a truck proceeding in a southerly direction. He waited until the truck had passed and looked again to the rear. Seeing only the rear of the truck which had just passed, he looked again to the north and began to pull out into the street. He further testified that a very short time had elapsed between the time he saw the rear of the truck and the time he looked north and pulled out; that as he was pulling out, the plaintiff’s right front fender struck the left rear quarter panel of his car; and that he did not see the plaintiff’s car, which was traveling north on Vernon Street, until after the collision.

The only other testimony was that of the plaintiff himself. He testified that he was traveling north on Vernon Street at a speed of about ten miles per hour and that the street was icy. He saw a truck drive toward him and pull in to park about two or three parking spaces behind defendant’s car on the same side of the street. He then saw the defendant move his car one or two feet into the street. At that time he estimated that he was going less than ten miles per hour and that he was about thirty feet from the defendant. He testified that he applied his brakes and down shifted, but could not stop his car from sliding into the defendant’s car. He further testified that after hitting defendant’s car he “slid off” into the curb and then struck another car. He stated that the defendant’s car was half way out into the street when he hit it. Thereupon the plaintiff rested his case and the court on defendant’s motion made a finding for the defendant and entered judgment thereon.

Plaintiff contends that the trial court erred in finding in favor of defendant at the close of plaintiff’s case. He argues that the same rule applies here as applies in directing verdicts and that it makes no difference whether the case is tried with or without a jury. Spitzer v. Bradshaw, Praeger & Co., 10 Ill App2d 445, 135 NE2d 114. The instant case differs from the Spitzer case, however, in that here the judge had heard both parties and it was apparent that nothing more could be added to the evidence which had not already been adduced at the trial. Both parties had testified fully as to their versions of the collision. Plaintiff’s own testimony showed that he was driving on a narrow, icy street at a speed which did not permit him to slow down enough in thirty feet to prevent a collision of such force as to cause his car to hit the defendant’s car and then bounce into a curb and from the curb into another car.

The trial judge having heard all the evidence available to both parties was convinced that his finding should be for the defendant. To have proceeded any farther would have been a waste of the court’s time. The judgment will be affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Appellant, v. Jerry Hambrick, Appellee.
    Gen. No. 52,463.
    First District, Second Division.
    September 17,1968.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellant.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Stephen W. Stoll, Theodore A. Gottfried, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

The People appeal from an order sustaining a motion to suppress evidence. The ruling was made on the basis of stipulated facts. The defendant was arrested in a tavern on a citizen’s complaint charging unlawful use of weapons. The police found a loaded revolver on the defendant’s person. He was taken to a police station and was charged with the unlawful use of a weapon. At the station the police followed the regular procedure in processing a prisoner in that they began to inventory the personal effects of the prisoner. During the course of the inventory they found in one of defendant’s pockets an envelope containing marijuana. The marijuana thus found is the basis of the charge against the defendant.

The issue is whether the discovery and seizure of contraband during the course of a normal police inventory of a properly arrested person’s personal property constitutes an unreasonable search and seizure? In Baskerville v. United States, 227 F2d 454, the court sustained the admissibility of evidence secured by an examination of defendant’s personal property which, upon his entry to jail, was placed in an envelope and given to a property custodian. In Cotton v. United States, 371 F2d 385, the defendant was arrested for prowling private property. He was taken to a police station where, pursuant to inventory policy he emptied his pockets which contained an identification card later introduced into evidence against him. The court affirmed. See also United States v. Caruso, 358 F2d 184; Robinson v. United States, 283 F2d 508 (cert den 364 US 919) ; Charles v. United States, 278 F2d 386.

In the recent case of People v. Ambrose, 84 Ill App2d 128, 228 NE2d 517, the court considered the question whether a loaded revolver seized during the search at the jail prior to the confinement of defendant pending trial for disorderly conduct, was constitutionally admissible as evidence against him at a trial for unlawful use of weapons and decided that it was admissible and that the motion to suppress this evidence was properly denied. In Ambrose the court concluded that the fact that the defendant was not convicted of disorderly conduct is not determinative of whether the arrest was valid, since it is elementary that the quantum of proof necessary to establish reasonable cause for an arrest is much less than the proof beyond a reasonable doubt required to sustain a conviction for the same charge. In the instant case the trial judge relied heavily on People v. Bowen, 29 Ill2d 349, 194 NE2d 316. We do not think that the factual situation in the Bowen case gives any support to the position of the defendant in the instant case where there was a lawful arrest. Because of this the police had a right to search him and to inventory his personal effects. The marijuana was found during the making of this inventory.

The defendant was lawfully arrested. At the time of his arrest he was armed. This fact alone justified a careful search and inventory before the defendant was to be put in a cell. The officers also inventoried the defendant’s effects for the purposes of safekeeping. The inventory was conducted in the ordinary course of police practice. We conclude that the seizure of the marijuana detected during the inventory of the personal property of the defendant after his arrest and before placing him in a lockup cell was proper. Therefore, the order suppressing the evidence is reversed and the cause is remanded for further proceedings consistent with these views.

Order reversed and cause remanded with directions.

MCNAMARA and LYONS, JJ., concur.