text:
    The People of the State of Illinois, on the Relation of Lewis Talerico, et al., All Being Candidates Under the Name and Description of Right Party, Plaintiffs-Appellees, v. George J. Lata, Individually, and as Village Clerk of the Village of Bridgeview, Cook County, Illinois, Honorable James E. Murphy, Joseph M. Berta, Sr., and M. M. Miller, Being and Constituting the Municipal Officers Electoral Board of the Village of Bridgeview, Cook County, Illinois, Defendants-Appellants, and John A. Oremus, et al., Defendants-Intervenors-Appellants.
    Gen. No. 52,515.
    First District, Second Division.
    May 21, 1968.

      Harry G. Fins, Lawrence Morell Gross, and Ancel, Stonesifer, Glink & Levin, of Chicago, for appellants.
    Leonard V. Solomon, of Chicago, and Walter C. Wellman, of Lyons, for appellee.
   On Rehearing

MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Relators instituted this action in March 1967 for a Writ of Mandamus to compel the Municipal Officers Electoral Board and the Village Clerk of the Village of Bridgeview, to place the names of the relators on the ballot as candidates for various Village offices in an election to be held on April 18, 1967. Nomination petitions filed by the relators with the Village Clerk were objected to on the ground that they failed to conform to the statutory provision that they be fastened together in a “secure and suitable manner.” After a hearing was had, the objection was sustained by the Electoral Board and the names of the relators were denied a place on the ballot.

On April 11, 1967, the trial court, after a hearing, ordered that the names of the relators be placed on the ballot and a Writ of Mandamus issued. On the same day, April 11th, respondents filed a notice of appeal to the Supreme Court. On April 12th the trial court ordered that respondents’ notice of appeal stand as a supersedeas. The appeal was transferred to this court on August 28, 1967, for want of a substantial constitutional question.

The Village election was held on April 18, 1967, without the names of the relators appearing on the ballot. The intervenors-defendants are the successful candidates in that election. On May 2,1967, the relators filed a petition in the Supreme Court in connection with the appeal then pending, for declaratory relief, requesting the court to declare the April 18th election null and void; the petition was taken with the case.

Respondents urge that the matters raised in this appeal are moot inasmuch as the mandamus action sought to have the names of the relators appear on the April 18th ballot, whereas the April 18th election is an accomplished fact. We disagree. The Writ of Mandamus issued below, but its force and effect was suspended by the act of the respondents in filing their notice of appeal which was allowed to act as a supersedeas, Western United Dairy Co. v. Miller, 40 Ill App2d 403, 412-414, 189 NE2d 786, thereby postponing a decision by the reviewing court as to the matters raised until after the election was held. The trial court found that relators had a right to have their names appear on the ballot and consequently the question presented did not become moot and may be considered on appeal. See Daniels v. Cavner, 404 Ill 372, 374, 88 NE2d 823; People ex rel. Giese v. Dillon, 266 Ill 272, 107 NE 583.

The case of Sokolowski v. Board of Election Commissioners, 89 Ill App2d 60, 232 NE2d 229, cited by the respondents in support of their position is not in point as the mandamus relief there sought was not allowed by the trial court and the court on appeal properly held that the issues presented had become moot with the passing of the election.

Relators maintain that the petition for declaratory relief filed in the Supreme Court and taken with the case constituted an election contest. They argue that their petition challenged the physical makeup of the ballot employed in the election, in that the ballot failed to provide the electorate with adequate space to afford an opportunity to write in votes for candidates whose names did not appear in print on the ballot form. A consideration of the petition for declaratory relief reveals that the April 18th election was being challenged on the ground that respondents acted in violation of the Writ of Mandamus in “failing and refusing” to place the names of the relators on the ballot used in the election. As shown above the trial court allowed respondents’ notice of appeal to stand as a supersedeas, thereby suspending the force and effect of the Writ of Mandamus pending the outcome of this appeal. Consequently the Village authorities were under no obligation to place the names of the relators on the ballot in time for the April 18th election. The ground set forth in the relators’ petition to declare the election null and void is unavailing.

Relators maintain that their petition for declaratory relief is an adjunct to their original mandamus action and that a court of review is empowered to consider and pass upon all matters raised in connection with the original action. However, it is clear that the contest of the April 18th election on the ground that the ballot employed therein failed to provide the electorate with adequate space on which to insert the names of “write-in” candidates bore no relationship to the original mandamus action to compel the Electoral Board and theVillage Clerk to place relators’ names on that ballot. A court of review has no original jurisdiction in election contest cases. See Ill Rev Stats 1965, c 46, par 23-5. Furthermore, the fact that the Supreme Court took relators’ petition for declaratory relief with the case does not in any way reflect upon the legal sufficiency of that petition.

Section 10-10 of the Election Code provides that “the decision of a majority of the electoral board shall be final” as to the validity of all nomination papers and any objections filed thereto. Ill Rev Stats 1965, c 46, par 10-10. It is well established that such decisions are final and, unless “clearly fraudulent,” will not be reviewed. Coles v. Holzman, 55 Ill App2d 93, 100, 204 NE2d 162; Hatch v. Holzman, 55 Ill App2d 168, 174-175, 204 NE2d 157.

In the instant case there was presented to the trial court no evidence that the action of the Electoral Board, in allowing the objection filed against relators’ nomination petitions, was fraudulent. The Electoral Board heard evidence and found relators’ petition failed to conform to the requirements of the statute. Without a showing that the Electoral Board’s action was “clearly fraudulent,” its order denying relators’ names a place on the ballot for the April 18, 1967 election should not be upset.

For these reasons the judgment is reversed.

Judgment reversed.

BURMAN and LYONS, JJ., concur.


source: Caselaw Access Project

author: EBERSPACHER, P. J.

license: Public Domain

text:
    Helen M. Freberg, First National Bank of Deerfield, Plaintiffs-Appellees, Charles Freberg, Plaintiff, v. Coronet Insurance Company, Defendant-Appellant, Personal Insurance Agency, Frank R. Munch and Jack Lane, Defendants.
    Gen. No. 51,827.
    First Judicial District.
    May 22, 1968.

      M. A. Haft & Associates, of Chicago (Lee Phillip Forman, of counsel), for appellant.
    James R. Mitchell and John W. Damisch, of Chicago (Jurco, Damisch & Sinson, of counsel), for appellees.
   EBERSPACHER, P. J.

This is an action by Helen Freberg, her son Charles Freberg and the First National Bank of Deerfield against Coronet Insurance Company, Personal Insurance Agency, Frank R. Munch and Jack Lane. The suit against Coronet Insurance Company is based upon an insurance contract issued to Helen M. Freberg. The suit against the remaining defendants is based upon negligence of these parties in the preparation of the application and other documents pertaining to the insurance contract issued by the defendant Coronet. The case was tried without a jury. At the conclusion of the trial the court entered judgment for the plaintiffs Helen M. Freberg and the First National Bank of Deerfield against Coronet Insurance Company. The court further found in favor of the defendants Jack Lane, Frank R. Munch and Personal Insurance Agency and in favor of all of the defendants as to the claim of Charles Freberg. This appeal has been brought by Coronet Insurance Company.

From the evidence it appears that in June of 1964 Helen Freberg purchased a 1963 Buick automobile. Mrs. Freberg made a down payment and the balance was financed at the First National Bank of Deerfield. The car was registered in Mrs. Freberg’s name. Although Mrs. Freberg owned another automobile she did drive the car in question occasionally, but the car was primarily used by her son, Charles Freberg, who at the time in question was 21 years of age and employed at a service station.

Shortly after the purchase of the car Jack Lane, an insurance broker, met with Charles Freberg at the latter’s place of employment for the purpose of obtaining auto insurance for the 1963 Buick. Lane took down information concerning the car, ownership, type of insurance desired, the driver’s license numbers, dates of birth and driving record of Charles and his mother, as well as information as to who was to be the prime driver and the percentage of use of each party. Although the automobile was at the service station at this time Lane did not examine it.

Lane then gave this information to the secretary of the defendant, Frank R. Munch, via telephone. Munch was a general agent for certain companies but not for Coronet. Munch transmitted the information to the Fine Agency and the Fine Agency placed the insurance with the defendant Coronet Insurance Company. Coronet issued the policy covering the 1963 Buick for liability and comprehensive, including theft, with Mrs. Freberg as the named insured. The policy contained a loss payable clause in favor of the plaintiff, First National Bank of Deerfield.

The policy was sent by Coronet to the Fine Agency. Fine delivered it to Munch, Munch to Lane and Lane to Freberg. The policy was eventually delivered to the First National Bank of Deerfield and retained in their file.

In October of 1964 Coronet sent notification of cancellation of the policy to Mrs. Freberg for nonpayment of premium. Later Charles Freberg contacted Lane and arrangements were made to have the policy rewritten or renewed. Again Lane contacted the Munch Agency and the request for the rewriting followed the same course except that Munch went through Personal Insurance Agency instead of Fine to Coronet.

A new policy was issued which is the subject matter of this law suit. The evidence is undisputed that neither the original application nor the renewal application were attached to the policies or made a part thereof. On the contrary the application remained in the files of Coronet. However, there is some evidence that a copy of the original application was sent to Mrs. Freberg. The applications were signed by neither Mrs. Freberg nor her son.

On the night of January 30, 1965, the car while parked at the home of Charles Freberg mysteriously disappeared and has not been recovered. Coronet denied a claim filed for the loss which resulted in this suit.

In answering the complaint filed by plaintiffs, the defendant Coronet, affirmatively pleaded in defense that the policy was issued in reliance upon misrepresentation made by the plaintiffs. The court, in reaching its decision in favor of the plaintiffs, found that the alleged misrepresentations were material to the risk involved but also found that the defendant was precluded from asserting the defense by the provisions of chapter 73, § 766, Ill Rev Stats.

In its effort to reverse the judgment of the trial court, the defendant asserts that the court erred in its application of section 766, that there was insufficient evidence as to the condition and value of the vehicle and that the plaintiffs failed to sustain their burden of proving the loss itself.

Section 766 of the Insurance Code (c 73, § 766, Ill Rev Stats 1965) provides:

“No misrepresentation or false warranty made by the insured or in his behalf in the negotiation for a policy of insurance, or breach of a condition of such policy shall defeat or avoid the policy or prevent its attaching unless such misrepresentation, false warranty or condition shall have been stated in the policy or endorsement or rider attached thereto, or in the written application therefor, of which a copy is attached to or endorsed on the policy, and made a part thereof. No such misrepresentation or false warranty shall defeat or avoid the policy unless it shall have been made with actual intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the company. This section shall not apply to policies of marine or transportation insurance.”

It is undisputed that the applications containing the alleged misrepresentations were not made a part of the insurance policies. In fact, it is clear that the unsigned applications remained in the files of the defendant Coronet, although Coronet bases much of its argument on the fact that Mrs. Freberg testified that at one time, it is unclear if it was before or after the issuance of the policy, she had a copy of one of the applications, which she did not examine. It is clear, however, that the applications were not attached or made a part of the policies. Upon this evidence the plain language of the statute bars the defendant Coronet from using the alleged misrepresentations contained in the application as a defense. Anderson v. John Hancock Mut. Life Ins. Co., 316 Ill App 338, 45 NE2d 39 (1942); Lovings v. Allstate Ins. Co., 17 Ill App2d 230, 149 NE2d 641 (1958).

The defendant’s assertion that the plaintiffs failed to sustain their burden of showing the vehicle was in fact lost or stolen is also without merit. Mrs. Freberg testified, without objection, that her son informed her that the car was stolen during January of 1965 and that she had not seen it since. A co-worker of Charles Freberg testified that he had regularly seen the car at his place of employment but had not seen it since January 1, 1965. Also a claim adjuster for defendant testified that he had investigated the case and that he was unable to locate the car. The evidence was more than sufficient to support a finding of loss or theft. Simond v. Liverpool & London & Globe Ins. Co., Ltd., 219 Ill App 300 (1920).

The last allegation of error by the defendant is that the plaintiffs failed to sustain their burden of proving damages. More specifically, the defendant argues that there was no evidence as to the condition of the vehicle on or before the date of the loss.

The general rule as to the measure of damages where there is loss or destruction of personal property is its value or reasonable worth at the time and place of its taking or destruction. New York C. & St. L. R. Co. v. American Transit Lines, Inc., 408 Ill 336, 97 NE2d 264 (1951).

Three witnesses testified as to the value of the automobile without objection. The first witness was familiar with the specific car in question and offered his opinion as to the fair cash market value of the car in the area on the date of the loss. The second witness was a car salesman in the area who gave his opinion as to the value of a 1963 Buick with equipment as the Freberg car on the date of the loss. The third opinion as to value was offered by the defendant.

The first witness was familiar with the specific car and presumably took into consideration the condition of the auto in giving his opinion. His opinion was given without objection. The third witness was called on behalf of the defendant. The defendant will not be heard to say at this point that this opinion was erroneous.

The finding of the court as to value was within the limits of the testimony and will not be disturbed.

For the above reasons the judgment of the court below shall be affirmed.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.


author: EBERSPACHER, P. J. GOLDENHERSH, J.,

text:
    Roger M. Simpson, Plaintiff-Appellee, v. Compagnie National Air France, a Corporation Doing Business as Air France, Defendant-Appellant.
    Gen. No. 51,939.
    First District.
    May 22, 1968.
    GOLDENHERSH, J., dissenting.
    Harvey Wienke, James H. DeVries, James H. Ryan, and McBride, Baker, Wienke & Schlosser, of Chicago, for appellant.
    James H. McFarland, of Chicago (Ralph S. McFarland, of counsel), for appellee.
   EBERSPACHER, P. J.

Defendant, Compagnie Nationale Air France, a corporation doing business as Air France, appeals from the judgment of The Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County, entered after trial without a jury, in the amount of $1,241.

In his complaint, plaintiff alleged that on January 24, 1963, he purchased air transportation on defendant’s airline for two persons from Rome, Italy to Chicago, Illinois via Paris, France, through Elizabeth H. Larkin Travel Service, Inc., defendant’s authorized agent, through whom it advertised and sold its services; that the tickets were purchased at a cost of $1,341.40, that on February 21,1963, plaintiff cancelled the reservations, and according to the custom in the travel industry, and to defendant’s express undertakings and representations, plaintiff became entitled to a refund of the amount paid; that he has repeatedly demanded repayment but defendant’s agents have wilfully and vexatiously refused to pay him the sum due.

In its answer, defendant denied that the Elizabeth H. Larkin Travel Service, Inc. was authorized to act as its agent in any way, or to bind it by any contract, other than by issuing an official ticket, and denied that it ever advertised to the contrary; denied that plaintiff purchased air transportation as alleged in the complaint; denied that the Elizabeth H. Larkin Travel Service, Inc. was authorized to act for it in any way other than in the manner aforesaid; denied that any accommodations were cancelled; denied that plaintiff ever had reservations or tickets for the trip alleged; denied any express undertakings or representations that it would pay the sum referred to; denied that any custom exists in the travel industry which would entitle plaintiff to a refund, and denied that there was any vexatious refusal to pay the sums demanded.

In a separate and additional defense, defendant alleged that the Elizabeth H. Larkin Travel Service, Inc. was at all times acting as the agent of the plaintiff, and not as the agent of the defendant.

The plaintiff testified that in January of 1963, he requested Elizabeth Larkin, of the Elizabeth Larkin Travel Agency, to plan a trip to Europe for his wife and himself. He had engaged her in connection with prior trips, and was satisfied with her services. On January 24, 1963, at the first planning session, after reviewing the proposed plans, Mrs. Larkin requested that he pay the full cost of the planned trip in advance, because “accommodations and transportation would be in such demand at the very time of their trip, which was at Easter time, that only by putting cash on the line, so to speak, could he be assured of the desired reservations.” When plaintiff questioned the necessity of the prepayment, Mrs. Larkin assured him that she was acting in his best interests by sending the money along with the request for transportation and reservations. Plaintiff issued his check to the Elizabeth H. Larkin Travel Service in the amount of $3,368.38, the check is in evidence, and the endorsement shows it to have been deposited to the account of the Elizabeth Larkin Travel Service.

Mrs. Larkin prepared, and gave plaintiff a detailed itinerary commencing with sailing to Gibraltar on the R.M.S. Mauretania on March 28, 1963, and terminating with the following: “April 17, 1963 — Fly home to O’Hare via Air France.”

In February, 1963, plaintiff became ill and was hospitalized for a period of time. It appeared that he would not have sufficiently recovered to make the trip as planned, so he advised Mrs. Larkin that it would be necessary to cancel the trip, and she promised him a refund.

Repeated telephone calls were made to the office of the travel agency resulting in promises that the refund check would be forthcoming, but no check was ever sent. In response to one telephone call, plaintiff was advised that the office of the agency was closed, that an administrator “had taken over” and plaintiff was then advised that Mrs. Larkin had filed a voluntary petition in bankruptcy.

On May 2, 1963, plaintiff wrote the defendant advising it of the occurrence, and requesting a refund in the amount of the cost of first-class air transportation from Rome to Paris, and from Paris to Chicago. Defendant refused to make payment, and this suit was filed.

Other than the flight from Paris to Chicago, the only air transportation included in the proposed itinerary was a flight from Rome to Paris on April 12, 1963. Plaintiff testified that Larkin scheduled his flight on Air France on both the flights from Rome to Paris on April 12 and Paris to Chicago on April 17; no airline is named in the itinerary for the flight on April 12th. Provision is made for transportation by private car to the Rome airport shortly after luncheon to board a flight for Paris leaving late p. m. and arriving in Paris approximately 5:00 o’clock p. m. The record shows that defendant’s only scheduled flight on that day from Rome to Paris was scheduled to leave Rome at 8:35 p. m. and arrive in Paris at 10:30 p. m. Defendant’s Chicago district manager testified that he had examined defendant’s records and no tickets were issued in plaintiff’s name during January, February or March 1963.

Exhibits, offered and admitted in evidence by stipulation of the parties, show that the Elizabeth H. Larkin Travel Service, Inc., hereafter referred to as Larkin, on June 12, 1961, entered into a passenger sales agency agreement with the International Air Transport Association, and it is stipulated that defendant had issued a “Certificate of Appointment” authorizing Larkin to represent it “in promoting and selling air transportation in accordance with and subject to all of the terms and conditions of the I.A.T.A. Sales Agency Agreement.” The pertinent provisions of the I.A.T.A. agreement are (a) The agent shall request reservations only when he has had a request therefor, and if required by the carrier, a deposit has been paid, (b) the agent may represent himself as “Agent” or “Booking Agent” but not as “General Agent” and may not use the designations “Airline Ticket Office” or “Consolidated Ticket Office,” (c) the agent is to display advertising material supplied by the carrier, (d) moneys collected for transportation sold are the property of the carrier and shall be so retained by the agent until satisfactory accounting is made therefor, (e) the carrier may, at its option, furnish agent with tickets and exchange vouchers, (f) prior to issuance of a ticket, agent is to secure confirmation from the carrier that a definite reservation has been made for a particular flight except that “open date” tickets may be issued if marked to indicate that no specific accommodation has been reserved.

By stipulation of the parties, there was admitted into evidence a copy of a proof of claim filed by plaintiff in the matter of the bankruptcy of Elizabeth H. Larkin Travel Service, Inc., stating that he had prepaid for travel fares and accommodations in the amount of $3,368.38, had received a refund from Cunard Steamship Company in the amount of $1,222.00, leaving a net balance of $2,146.38. This we consider to be of comparatively insignificant evidentiary value.

Plaintiff testified that all of his flights prior to the dates upon which the proposed flights were to be made, were first class. The judgment entered is in the amount of the published rate for first-class accommodations for two persons from Rome to Chicago.

As grounds for reversal, defendant contends that Larkin was a special agent, that plaintiff dealt with it at his peril, and is bound to know the extent of its authority and the evidence shows the travel agent was acting as plaintiff’s agent, not defendant’s, and defendant is not bound by its acts.

Plaintiff argues that Larkin was acting within its apparent authority, and defendant is liable for the acts of its agent within its actual or apparent authority.

There is no question that the I.A.T.A. agreement conferred upon Larkin the authority to agree on defendant’s behalf to furnish transportation via Air France. In fact the principal purpose of the certificate of appointment was to give her that authority, with the expectation that she would use it for the profit of this defendant. By the provision which we have heretofore referred to as “(d — moneys collected for transportation sold are the property of the carrier and shall be so retained by the agent until satisfactory accounting is made therefor),” Larkin unquestionably had authority to collect money from prospective Air France passengers who had agreed with her to use Air France, and such money as she collected for Air France flights immediately became the property of Air France, even though the agreement permitted her to retain custody of it until an accounting was made. Even though she had authority to issue “open date” tickets, the issuance of any ticket is not by the provisions of the agreement, a condition upon which money collected for Air France flights, became the property of Air France.

Both plaintiff’s testimony and the itinerary are to the effect that Larkin and plaintiff had a complete meeting of the minds, Larkin on behalf of Air France, that Air France was to furnish transport from Paris to Chicago and that portion of the expense of the entire planned trip was included in the check plaintiff gave Larkin. There is absolutely nothing in the record to contradict the evidence that Larkin sold plaintiff passage on Air France from Paris to Chicago for April 17, and that Larkin had authority to do so. The instant the check was honored, a check being only conditional payment, that part of the proceeds covering the flight from Paris to Chicago, stipulated by the parties to be $1,098.00, became the property of Air France, for transportation which they did not furnish. While it is true that Larkin did not issue a ticket to plaintiff, there is nothing in the agreement that makes the issuance of such ticket a condition of her collecting money from prospective passengers, for defendant, nor is the issuance of such ticket a condition to such money as she collects on behalf of Air France, immediately becoming the property of Air France. As a result it makes no difference whether she issued a ticket, placed a reservation with Air France, or requested Air France to issue a ticket. Likewise, the fact that the I.A.T.A. agreement provided “that monies are deemed to be due the carrier when the ticket or exchange order is issued” is of no consequence; Larkin had the money which was the property of Air France, but she was not as yet obligated to pay it to Air France; she and defendant had agreed that she was to keep it for defendant, not for plaintiff.

The provision that “all moneys collected by the Agent for transportation . . . are the property of the carrier and shall be retained by the Agent as property of the carrier until satisfactorily accounted for to the carrier” was obviously made for the carrier’s protection against its agent, in order that the carrier might claim a priority on any funds in the hands of its agent, as against creditors of the agent. We are not here concerned with the fact that Air France has not seen fit to exercise its priority on such funds in the bankrupt estate of their agent. They of course would lose little by failing to make such a claim, since they did not furnish the transportation for which plaintiff paid, if they could disclaim the acts of their agent. We are not here involved with the proposition that a third party dealing with a special agent is bound at his peril to know the extent of the agent’s authority; our concern is with the authority the special agent had and whether her acts were within the extent of that authority. We find that she had authority from Air France to sell passage on Air France, that she sold passage on Air France from Paris to Chicago, that she had authority to collect the fare for such passage, for her principal Air France, that she did collect such fare for such principal, and that upon collecting money for such fare the money became the property of Air France.

With reference to the flight from Rome to Paris, which plaintiff contends was also to be via Air France, and for which he also recovered below, we consider the situation differently. Despite his testimony that Air France was intended for that flight, the itinerary does not designate Air France as the carrier from Rome to Paris; in fact, it designates a flight arriving in Paris at approximately 5:00 p. m. Defendant has presented evidence that on April 12 its only scheduled flight from Rome to Paris by Air France departed Rome at 8:35 p. m. arriving in Paris at 10:30 p. m. (Defendant did not offer any proof that there were no scheduled flights from Paris to Chicago on April 17.) With the record in this state we cannot say that plaintiff has proven by a preponderance of the evidence that there was a meeting of the minds on the carrier to be used from Rome to Paris and that the payment included an Air France flight from Rome to Paris. Having received the money without any commitment that Air France would furnish air transport from Rome to Paris, the portion of the money for such flight did not become the property of Air France, because the preponderance of the evidence does not show that such portion of the money was collected for transportation on Air France.

The judgment of the Municipal Court of Chicago, First Municipal District of Cook County is affirmed as to the amount of $1,098 and costs, and is reversed as to the remainder.

Affirmed in part, reversed in part.

MORAN, J., concurs.

GOLDENHERSH, J., dissents.

GOLDENHERSH, J.,

dissenting.

I respectfully dissent from the majority opinion and would reverse the judgment.

The record discloses that Larkin was a dual agent, employed by, and acting for, both of the parties.

There is no question that the I.A.T.A. agreement conferred upon Larkin the authority to collect funds and issue tickets in defendant’s behalf. It is equally clear that it was, at the same time, acting as plaintiff’s agent, for the purpose of procuring hotel and travel accommodations. Larkin’s relationship with both parties was one which is usual and customary in the business in which it was engaged, and only the conversion of the funds distinguishes the transaction from countless others. The precise issue for determination here is the point at which the funds ceased to be the property of plaintiff, and ownership passed to defendant.

The question is somewhat similar to that discussed in the caveat to section 313, Restatement of Agency 2d, and in an article which appears at 64 Harvard Law Review 431, entitled “Embezzlement by Agent of Two Principals: Contribution?” It is also analogous to the situation presented in Bloxom v. Deitchler, 175 Wash 431, 27 P2d 720, in which the court held that an innocent party who entrusts money to the agent of himself and another, with instructions to pay the funds to the other principal, must stand the loss caused by agent’s larcency of the money, unless it had been paid to, and stolen from the other principal.

As stated in the majority opinion, the I.A.T.A. agreement provides that monies collected by the agent for transportation sold are the property of the carrier and are to be so retained by the agent until satisfactory accounting is made therefor. The agreement further provides that the agent is to account for and remit to the carrier monies due it for transportation sold not less than once each month. Monies are deemed to be due the carrier when a ticket is issued, and it is this act of issuing the ticket that transfers ownership of the funds from the client of the travel agent to the carrier.

In my opinion, at the time of the Larkin defalcation, no action had been taken which could effect transfer of ownership of the funds from plaintiff to defendant; the money, when stolen, was plaintiff’s property, and he, and not defendant, must bear the loss.


author: ALLOY, P. J.

text:
    James T. Brewer, Plaintiff-Appellee, v. William M. Martin, Defendant-Appellant.
    Gen. No. 52,310.
    First Judicial District.
    May 22, 1968.
    Rehearing denied July 1,1968.

      Mortimer, Nolan, O’Malley & Dunne, of Chicago (Patrick W. Dunne and Kieran P. O’Gallagher, of counsel), for appellant.
    Peter Fitzpatrick, George Kaye, and Francis W. Gulbranson, of Chicago, for appellee.
   ALLOY, P. J.

The genesis of this case was an alleged assault during a baseball game between the Cincinnati Redlegs and the Chicago Cubs on August 4, 1960. The defendant, William M. Martin, was a baseball player for the Cincinnati Redlegs and the plaintiff, James T. Brewer, was a pitcher for the Chicago Cubs. Martin was at bat with James Brewer pitching. The first pitch was near Martin’s head. Following the second pitch, Martin’s bat either left his hands or was thrown and landed between the pitcher’s mound and the first base. Martin walked out apparently to retrieve his bat. An argument ensued between Martin and Brewer. On the basis of the record, it appears that the parties both proceeded toward each other with clenched fists and that Martin struck Brewer in the face. A general melee or brawl then followed on the baseball field. There was some evidence that another member of the Cincinnati team also struck Brewer. Brewer sustained a broken orbital bone and fracture in the cheekbone area. The injury was a severe one and apparently impaired Brewer’s ability to pitch thereafter.

Plaintiff Brewer and the Chicago Cubs corporation filed a civil action against defendant Martin for damages. Acting through Cincinnati attorneys, the Cincinnati Redlegs engaged a certain Chicago law firm to represent Martin and the Cincinnati organization initially paid this firm an attorney’s fee. This Chicago law firm filed an appearance and answer and continued to represent Martin in the action, although there was very little activity and Martin had limited contact with this law firm. In December of 1960 this firm got in touch with Martin with respect to having his deposition taken. The deposition was taken in California in December of 1960. At the time of making such arrangements in 1960, Martin was still a member of the Cincinnati Redlegs, but just prior to the taking of the deposition he was traded by the Cincinnati Redlegs to the Milwaukee Braves. He thereafter was traded to the Minnesota Twins in Bloomington, Minnesota.

The cause was not reached for trial until 1966. During such six-year period there was no contact between Martin and the Chicago law firm which represented him, except with respect to the deposition in December of 1960 and on a couple of other occasions which will be referred to later in this recital of facts. During such period there were also various stories and reports carried in the news media to the effect that the lawsuit would be dropped. There was, however, no official notice of any such dismissal given to defendant Martin. The record discloses that in a conversation between a representative of the Chicago law firm and Martin in 1960 at the time of the taking of the deposition, there was discussion of the possibility that Cincinnati Redlegs were not going to continue to pay Martin’s attorneys since he had been traded by Cincinnati. This firm, however, continued as Martin’s counsel until 1966 without contact, so far as the record discloses, either verbal or written, with defendant Martin.

As trial time approached, the Chicago law firm, realizing they were not going to be paid by Cincinnati Redlegs and because Martin himself had not offered to pay them, made plans to withdraw as counsel for Martin. On April 14, 1966, a member of this Chicago law firm, which represented Martin, wrote Martin in care of the Minnesota Twins in Bloomington, Minnesota, and advised Martin that the Cincinnati Redlegs had refused to pay the attorney’s fees since Martin was traded to Milwaukee. The letter then continued as follows:

“I have not formally withdrawn from the case because from time to time Plaintiff’s attorneys have suggested that the case would be dismissed. I have been informed today that the insurance company which paid Brewer’s doctor bills is insisting that the case be tried.
“The case will probably be on the trial call subject to trial in a week to ten days. However since you, the Plaintiff, and the witnesses are baseball people, I anticipate no difficulty in having the case continued for trial until the end of the baseball season.
“This letter is to inform you that I can no longer continue to act as your attorney without adequate fee arrangements. After the case has been continued I shall make a motion to withdraw from the case. I would suggest that you immediately make arrangements for another lawyer to act in my place. Unless you secure counsel a default judgment can be entered against you which will, of course, endanger any assets you may have and would make your present salary subject to whatever legal procedures are available in Minnesota.”

The letter was sent by Registered Mail and the return receipt showed the signature of a girl who worked in the Minnesota Twins’ office. Martin acknowledged receipt of this letter and talked with a representative of the Minnesota Twins, his employer, at that time, about the lawsuit. He was told not to worry about the case as it would probably be dropped.

Thereafter, on May 23, 1966, a member of the same Chicago law firm sent Martin a Registered Letter containing a notice that the firm would appear in court on June 3, 1966, and move to withdraw as his attorneys. A girl in the office of the Minnesota Twins signed the return receipt. Defendant Martin asserted that he never saw or heard of this notice. On June 3, 1966, an order was entered allowing the Chicago law firm to withdraw as his attorneys and this firm then sent Martin a copy of such order by ordinary mail. Martin states that he never actually received a copy of such order. The Chicago law firm which had withdrawn then wrote the attorneys for plaintiff stating that they “assume that no action will be taken in the case without giving Mr. Martin himself notice at his address: William Martin, c/o Minnesota Twins, Bloomington, Minnesota.” Apparently, no copy of this letter was sent to Martin. Martin had no further actual knowledge of the status of the lawsuit until after the default judgment.

As the case came up for trial, a jury was impaneled and heard evidence presented by the plaintiff only. No one appeared for Martin. The jury returned a verdict of $100,000 against Martin and specifically found that malice was the gist of the action. Judgment was entered upon the verdict by the court on November 28, 1966. Defendant Martin, who apparently heard of the action only after newspaper publicity brought it to his attention, immediately retained attorneys who filed a post-trial motion upon his behalf within 30 days after the entry of such judgment. These attorneys now represent Martin in the present proceeding. The motion sought to set aside the judgment under section 50(6) of the Civil Practice Act (1965 Illinois Revised Statutes, c 110, § 50 (6)). Following a hearing on the motion the trial judge reduced the judgment to $35,000 but retained the finding that malice was the gist of the action and also refused to set aside the default judgment. It is from such action of the court that defendant Martin has now appealed to this Court.

The issue before the Court is whether the trial court properly exercised its discretion in refusing to set aside the default judgment as against the defendant Martin. On appeal in this Court, defendant asserts that the determination of whether or not a court should set aside a judgment in the nature of default should be resolved so as to do substantial justice between the parties with the objective in mind of carrying out insofar as it is possible the determination of the matters involved on their merits. Defendant recognizes that in resolving this problem a court may well consider whether or not a defendant has a meritorious defense and whether or not defendant’s delay in responding to the court’s command actually jeopardized plaintiff’s basic position. Defendant vigorously contends that the overriding reason, however, should be whether the result is fair and just. It is pointed out that a default is one of the most drastic actions a court may take to punish for disobedience, and unless there is a flagrant disregard of the court’s command, a default (particularly with malice as the gist of the action) should be set aside on a motion made within 30 days of a judgment entry.

The issue which is presented in this case has been the subject of much analysis and discussion in recent cases in the State of Illinois. A general rule had evolved that a prompt application within a period of 30 days after entry of judgment should normally justify setting aside a default judgment, if there was a showing of a reasonable excuse for not having appeared or made a defense within the proper time, and also that the moving party had a meritorious defense.

The courts of this State in determining these issues have, however, outlined standards which primarily stress the basic concept of fundamental fairness and the furtherance of justice rather than compliance with certain rigid standards. In Widicus v. Southwestern Elec. Cooperative, Inc., 26 Ill App2d 102, 167 NE2d 799, the court emphasized the rule of fairness and the furtherance of justice and stated (at page 108) :

“In view of the fact that the statute, as it now stands, does not contain the requirement that good and sufficient cause appear, we do not believe that a court now must categorically determine that a meritorious defense or a reasonable excuse be proven to justify setting aside a default. We believe that the discretion will be properly invoked if it is based upon principles of right and wrong and is exercised for the prevention of injury and the furtherance of justice. . . .
“The question of whether or not a court should set aside a default should be so resolved as to do substantial justice between the parties and with the idea in mind of carrying out, insofar as it is possible, the determination of matters upon their merits. In resolving this problem, a court may well consider whether or not a defendant has a meritorious defense, and whether or not defendant’s delay in responding to the court’s command actually jeopardizes plaintiff’s basic position. But this should not be the only, nor necessarily, the determining factors. It seems to us that the overriding reason should be whether or not justice is being done. Justice will not be done if hurried defaults are allowed any more than if continuing delays are permitted. But justice might, at times, require a default or a delay. What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome.”

In the Widicus case the court had indicated that this consideration is addressed to the sound discretion which the court is required to exercise in considering a motion to set aside a default. Succeeding cases have reiterated the same principles as expressed in the Widicus case (Kehrer v. Kehrer, 28 Ill App2d 296, 171 NE2d 239; Lynch v. Illinois Hospital Services, Inc., 38 Ill App2d 470, 187 NE2d 330).

The basic concept with which the courts are concerned is that of attaining justice through the exercise of fairness to both parties. In this connection, necessarily, the court can and should examine into such considerations as the reasons for failure to present a timely defense and also whether a reasonable basis for a meritorious defense in fact exists. Another important consideration is the determination of whether or not setting aside the default will operate as a hardship on the party who obtained the default judgment. As stated in Mieszkowski v. Norville, 61 Ill App2d 289, 209 NE2d 358 (at pages 297-298):

“The setting aside of such judgment should be tested by the principle of fundamental fairness, and should be an exercise of the court’s discretion, wherein it seeks the prevention of injury and the furtherance of justice. In exercising this discretion, it is essential that the court ascertain if some reason exists for the failure to present a defense in apt time; that the court decide whether some meritorious defense exists so that vacating the judgment will not be a patently useless act; and that the court determine if some particular hardship will result to the plaintiff. These determinations should be made, however, within the framework of the legal philosophy that litigation should be determined on its merits, if possible, and according to the substantive rights of the parties. Rights should be determined by default only as a last resort.”

In applying the tests to which we have referred, and which have been summarized in Mieszkowski v. Norville, supra, we must conclude that there was in effect an improper application of the court’s discretion when it failed to set aside the default judgment in the case before us. The record in the instant case indicates that there was no knowledge on the part of defendant that the case was coming up for trial at the time it was tried. There was actually no showing that defendant knew that he was not being represented by an attorney at the time. Defendant lived over 500 miles from Chicago and apparently was not familiar with legal proceedings since he was a baseball player and had no legal training. So far as the records of the court were concerned they disclose that defendant’s attorneys had withdrawn so that the trial court could presume that defendant was without an attorney. There was no correspondence or testimony to show that defendant actually knew that he did not have an attorney. There was no showing of any notice transmitted by plaintiff to defendant of the type referred to in the letter from the Chicago attorneys who had withdrawn when they sent a notice of withdrawal to attorneys for plaintiff.

On the basis of the record before us, there was also enough evidence to show that a question of fact was raised as a result of the conduct of plaintiff and defendant prior to the injury to plaintiff and the words of provocation which were alleged to have been asserted during the baseball game might have been considered sufficient to indicate the probability of a meritorious defense. Since this was an unusual case, it appears to us that a special effort should have been made to avoid a determination by default unless a strong showing was made of failure on part of defendant to respond to the commands of the court.

The defendant was in no respect responsible for the delay of the six-year period before trial. The relative inactivity in the progress of the suit during all this period of time would also have tended to lull defendant into believing that the cause was either being disposed of or not being pushed aggressively, and that he would be advised in time to make arrangements to defend. It is notable that when the publicity disclosed the entry of a judgment against him, defendant acted promptly in retaining attorneys personally. The record also indicated nothing which would justify the conclusion that plaintiff would be jeopardized by having the case tried upon its merits.

We recognize the broad discretion of a trial judge in determining a motion of the type under consideration in this case. On the record, it appears that defendant was neither advised that he was without attorneys representing him nor did he know when the case was going to be reached for trial. We feel, therefore, that the basic principle of fairness and furtherance of justice, on the basis of the record before us, requires that this cause be reversed. This cause will, accordingly, be reversed and remanded to the Circuit Court of Cook County with directions to set aside the default judgment heretofore entered herein and to proceed with trial and disposition of this cause with reasonable dispatch.

Reversed and remanded.

STOUDER and HOFFMAN, JJ., concur.


author: MR. JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Williams, Defendant-Appellant.
    Gen. No. 50,685.
    First District, Third Division.
    May 23, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a conviction of robbery. The defendant was sentenced to a term of one to three years in the penitentiary after a jury trial.

The issue presented for review is whether the State failed to prove the defendant guilty of the crime beyond a reasonable doubt.

On July 9, 1964, about 11:50 p. m., Melvin Cairns, a bus driver for South Suburban Safeway, was driving his bus near 130th Place and Ellis Avenue. He saw two men running across a lawn toward the bus and stopped so they could get on, although it was not a regular stop. One of the two men reached into his pocket as if he was going to get some money. The other man stepped behind Cairns, put a knife into his ribs and said: “Stop this bus. This is a robbery. This is a holdup.” The man with the knife told the other man to “grab his changer and his box.” The other man was standing to the right of the driver during the whole episode. Cairns kept watching him during the robbery. The dome lights were on all the time and Cairns was able to see the man on his right very well for the three to five minutes the men were on the bus. A total of $32.80 was taken.

That night Cairns described the robbers to police. Both were Negro. One (later identified as defendant) was five feet eleven and wore a brown jacket and a black cap. The other was short and stocky, wore gray pants and a gray shirt and had a mustache.

The following day Cairns and his supervisor went to the police station to view a lineup. In the lockup room there were several men facing the wall. They were told to turn around and as soon as they did Cairns recognized defendant as one of the men who robbed him. Defendant was the taller of the two robbers and had stood next to Cairns during the robbery. Cairns paid no attention to the men other than Williams in the lineup and could not, at the trial, describe any of the others.

Defendant, his wife, his mother and Johnny B. Smith, a boarder at defendant’s mother’s house, all testified (with minor inconsistencies) that defendant came home about 10:15 or 10:30 p. m. on July 9th. He and Smith then went to a nearby store for some candy and Kool-Aid. They returned within 15 minutes and watched television. They went to bed about 12:00 or 12:30 a. m. Defendant denied committing the crime.

Defendant contends that where the identification by the victim is subject to doubt, unsatisfactory and difficult to reconcile with the entire record and leaves the court with a grave and substantial doubt of the defendant’s guilt, the court is required to reverse the conviction. That is certainly a valid statement of the law but it is also true that the credibility of the witnesses and the weight to be given to their testimony is primarily a function of the trier of fact. People v. Henderson, 23 Ill 2d 225, 210 NE2d 483; People v. Carpenter, 28 Ill2d 116, 190 NE2d 738.) It is also well settled that the testimony of one witness as to identification, if positive and the witness credible, is sufficient to convict even if that testimony is contradicted by the accused. (People v. Perkins, 17 Ill2d 493, 162 NE2d 385; People v. Jennings, 84 Ill App2d 33, 228 NE2d 566.) The credibility of alibi testimony is also for the trier of fact. People v. Ault, 28 Ill2d 34, 190 NE2d 815.

In the instant case the complaining witness had the opportunity to observe the robber identified as defendant in a well-lighted bus at close range for a three to five minute period. He described the man, including his clothing, that night to police and was able to identify defendant in a lineup the following day. At the trial his identification was positive. Although the defense made much of the fact that Cairns was unable to describe any of the other men in the lineup or any of the legal personnel at the various hearings prior to trial, we do not agree that this shows he is not a very observant person. He had no reason to remember the other persons about whom he was questioned. On the other hand he had a good reason to remember the appearance of the defendant and did so ably.

Defendant argues that the witness’ identification of him was based solely on the similarity of clothing of the robber and the defendant at the time of the lineup. According to defendant’s testimony the only clothing of similar type was a black tam. Cairns had also told the police that the robber wore a brown jacket. Defendant testified that at the lineup he wore a pinstriped sport shirt. Furthermore, Cairns testified that he had looked carefully at defendant’s face to be “definitely sure” of his identification.

Defendant also points out the alibi testimony of his witnesses. This conflict in evidence is a matter of credibility of the witnesses and that is properly a function of the trier of fact, who had the opportunity of observing the witnesses. The State points out that defendant’s wife admitted during cross-examination that she might have told a police officer, the day following the crime, that she did not remember whether her husband had been home the previous night. It may be that this caused the trier of fact to discount her testimony. Whatever the reasons, however, the acceptance or rejection of alibi testimony was a matter of credibility and was to be determined by the trier of fact.

Defendant admits in his brief that Cairns’ identification of defendant was positive and included the clothing worn by the robber. In no respect was his testimony shaken at the trial and that testimony, if believed, was sufficient to prove defendant guilty beyond a reasonable doubt. The judgment of the trial court is affirmed.

Affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    Edward Horst, Plaintiff-Appellee, v. Morand Brothers Beverage Co., an Illinois Corporation, DefendantAppellant.
    Gen. No. 51,742.
    First District, Third Division.
    May 23, 1968.

      Richard C. Bleloch and Carmen V. Speranza, of Chicago, for appellant.
    Schaffenegger & Watson, of Chicago (Jack L. Watson, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

In this personal injury action arising from a vehicular collision, a judgment for $19,500 was entered in favor of the plaintiff, Edward Horst, at the termination of a jury trial.

On appeal the defendant, Morand Brothers Beverage Co., maintains that: (1) a verdict should have been directed in its favor; (2) the verdict was contrary to the manifest weight of the evidence; (3) improper evidence was admitted; (4) erroneous instructions were given, and (5) the verdict was the result of prejudicial argument.

About 4:00 a. m. on Monday, June 16, 1958, Horst was driving a bakery truck north on State Street in Chicago. He was on his way downtown to make deliveries for the bakery which employed him. The weather was clear, traffic was sparse, and he was travelling approximately 27 miles per hour. He had the green light as he crossed 39th Street, but halfway through the intersection his truck was struck on the left side by an auto travelling east on 39th which had ignored the red light. The collision turned the truck on its side and pushed it onto the sidewalk on the northeast corner. Horst was knocked unconscious as the truck turned over.

He was taken to a nearby hospital where first aid was administered to him. He was removed to another hospital where he was examined by his family physician and was then sent home where he spent the remainder of the week. He returned to work the following Monday, taking along his ten-year-old son to assist him with deliveries. On the same day an extremely itchy rash broke out on his legs. The condition spread and in August he was admitted to a hospital where he spent four days. He was away from work an additional two weeks at this time. By October, the rash and the swelling which accompanied it had reached such magnitude that he was forced to discontinue working. His legs and feet were so swollen that he was unable to get his shoes on. He did not return to work until March of the following year.

Between the time of the accident and December 1958 Horst visited his family doctor on approximately 33 occasions. He was also treated by a dermatologist who testified that the plaintiff’s skin condition — diagnosed as erythema multiforme — could only have been caused by the accident. The plaintiff’s medical expenses amounted to approximately $400 and at the time of the accident his net salary was $120 per week. All of his medical problems had abated by the time of trial.

The identity of the driver of the automobile was never ascertained. When the police arrived the driver had disappeared and ownership of the auto was traced through its license to Morand Brothers.

The defendant admitted owning the auto but denied operating it at the time of the accident. Donald Romano, Morand’s general manager, testified that the car was one of five which belonged to the corporation and that it had been assigned to him for business and personal use. He denied driving the auto the morning of June 16th and said that he had no notion as to the driver’s identity. He explained that two weeks before June 16th the auto had been damaged in another accident; that at his request his brother-in-law, Victor Taglia, had taken the car to a friend named Richard Edwards, who was a used car dealer; that Edwards turned the auto over to someone else to be repaired, and that the next time he saw it was after June 16th. He said that this was the only time a car owned by Morand Brothers had been repaired through Edwards; that this was done after he had made out a report of the accident for Morand’s insurance company; that the agent of the insurance company gave him permission to have the car repaired by Edwards; that he chose Edwards because of the high quality of his repair work and his cheaper price, and that he thought he would thus save money for the insurance company.

Taglia testified that he received the auto from Romano, turned it over to Edwards who operated a used car lot and repaired automobiles, and that he did not see it again until after the 16th of June.

In rebuttal, the plaintiff called the claims manager of the insurance company to whom Romano said he had reported the accident. The claims manager stated there was no record of an accident prior to June 16, 1958, in the company’s files. The plaintiff also called as a witness the claim agent who Romano testified had given him permission to have the auto repaired by Edwards. The agent said that he had no recollection of an accident being reported by Morand Brothers before June 16th and that his records did not contain a report of such an accident.

In order for the owner of a motor vehicle to be held liable for the negligent operation of the vehicle by another it must be shown that the relationship of principal and agent existed between the owner and the driver at the time of the negligent operation. Once ownership is established, a presumption or inference arises that the vehicle was being operated by the owner’s agent and a prima facie case for recovery has been made. Robinson v. Workman, 9 Ill2d 420, 137 NE2d 804 (1956); Watt v. Yellow Cab Co., 347 Ill App 307, 106 NE2d 760 (1952). The presumption is rebuttable and shifts the burden of going forward with the evidence to meet the presumption upon the owner. McElroy v. Force, 38 Ill2d 528, 232 NE2d 708 (1967). If evidence is introduced to show nonagency the presumption may be dispelled. If the presumption is overcome, the overall burden of proving agency remains with the party who asserted it. Brill v. Davajon, 51 Ill App2d 445, 201 NE2d 253 (1964). The weight to be given the presumption, whether it has been overcome, and whether agency has been proved are, ordinarily, questions for the trier of fact.

The defendant admits that, because of the presumption, the plaintiff made out a prima facie case of agency but argues that the presumption disappeared when its witnesses testified; that after Romano explained the circumstances surrounding his nonpossession and control of the auto it became incumbent upon the plaintiff to prove that the driver of the auto was an agent of the defendant, and since the plaintiff did not do so, this essential element of his cause of action was lacking and a verdict should have been directed against him.

In support of this contention the defendant refers to the language of Paulsen v. Cochfield, 278 Ill App 596 (1935), wherein it was stated:

“The testimony of one uncontradicted and unimpeached witness tending to overcome a prima facie case cannot be ignored by the court or jury, unless such testimony from its nature is not credible. . . . A prima facie case, based solely on an inference, or presumption, does not preclude the withdrawal of the case from the jury after all the evidence has been submitted.”

In relying upon this language the defendant has assumed that Romano’s testimony was uncontradicted and unimpeached. However, such was not the case. The credibility of his testimony was first brought into question when he stated that a record had been made of the damage the auto received in the prior accident, but was unable to produce it at the trial. He then said that he did not remember whether or not a record was kept. His testimony that he reported this accident to Morand’s insurance company and that he spoke to its agent about repairing the auto was contradicted. He also said that the color of the auto which was involved in the prior accident was a two-tone blue. A police officer testified that the auto which ran into Horst was green. Romano also testified that he asked Edwards who was going to repair the auto; at a depositen he stated that he had not asked Edwards about the repairman. Although Edwards had died before the trial, no one who may have been associated with him or engaged by him to repair the auto was called as a witness. No explanation was offered as to the existence or nonexistence of a repair bill, or of records pertaining to the auto which may have been made by Edwards or the repairman while the auto was purportedly in their possession.

All this removed Romano’s testimony from a category which might be considered unimpeached as a matter of law. His credibility was for the jury to decide and whether his testimony overcame the presumption of agency was also a jury question. The defendant’s motion for a directed verdict was properly denied.

The verdict rests entirely upon the presumption of agency, but it was contrary to the manifest weight of the evidence only if the defendant’s testimony is accepted as true. The defendant presented testimony which completely rebutted the presumption. However, evidence contradictory to this testimony cast doubt upon its truthfulness and suggested the possibility that the defendant’s auto was not being repaired because of an accident which had taken place prior to June 16, 1958. If the jurors disbelieved Romano and his brother-in-law, as they obviously did, there was no explanation why the auto was not in the defendant’s possession and under its control at the time it ran into the plaintiff — and the presumption, therefore, remained in force. Jurors are the sole judges of the credibility of witnesses and the weight to be given their testimony. Jeffrey v. Chicago Transit Authority, 37 Ill App2d 327, 185 NE2d 384 (1962). In view of the impeaching evidence presented by the plaintiff it cannot be said that the verdict is contrary to the manifest weight of the evidence.

The defendant complains that the trial court erred in admitting evidence that it was insured. It accuses the plaintiff of deliberately injecting this subject and of relentlessly pursuing it with the purpose of discrediting Romano in the eyes of the jury. Not only did the defendant’s general manager initially volunteer the information that it had insurance (the record discloses that Romano mentioned his insurance company three times before the cross-examiner questioned him about his report to the company and his conversation with its agent) but the cross-examination itself was completely proper. One of the volunteered statements by Romano was that he had reported the earlier accident to his insurance company. Left unchallenged, this statement would have bolstered his assertion that there had been a previous accident and that he did not have possession or control of the auto on the morning the plaintiff was injured. The cross-examiner delved into his professed report and in doing so laid the foundation for his impeachment. The foundation and the subsequent impeaching testimony were relevant to a material issue and as such were proper. Evidence that a defendant is covered by insurance is generally inadmissible in a personal injury action because it is irrelevant to the question of negligence. Wiersema v. Lockwood & Strickland Co., 147 Ill App 33 (1909). However, if the fact that the defendant has insurance becomes relevant to another material issue in the case it need not be excluded. Cf. Vacker v. Yeager, 151 Ill App 144 (1909); Seyferlich v. Maxwell, 28 Ill App2d 469, 171 NE2d 806 (1961). Evidence otherwise inadmissible may be received for impeachment purposes (Eizerman v. Behn, 9 Ill App2d 263, 132 NE2d 788 (1956)) and this may be done even if the admitted evidence reveals or elaborates upon the defendant’s insurance coverage.

The defendant also complains about two instructions which were given at the plaintiff’s request. One of these was on the presumption of agency and was adapted from Illinois Pattern Jury Instructions No. 50.07. The instruction stated that if the jury decided that the auto was owned by the defendant it could infer that the driver was acting as the agent of the owner, unless it found that the inference was overcome by other believable evidence. The defendant’s argument appears to be that the presumption had vanished because believable evidence had been introduced to overcome it. This contention has been discussed and decided adversely to the defendant. The instruction was correct and the court did not err in giving it.

The second instruction is another matter. It told the jury that the defendant had to prove that the automobile was not driven by its agent. This was an incorrect statement of law. As we have seen, proof of the defendant’s ownership raised a presumption of agency and the burden of going forward with the evidence thereupon shifted to the defendant. The defendant’s burden was to offset the presumption; it was not to disprove agency. The overall burden of proving agency remained with the plaintiff. Brill v. Davajon, supra.

It was error to give this instruction but the error was induced by the defendant. To place the error in its proper perspective it is necessary to resort to the pleadings which gave rise to it. The complaint contained the following allegation:

“4. That at the time and place aforesaid, the defendant, and each of them, individually, or by and through their agents, servants or employees, acting in their behalf, owned, operated, maintained, controlled, and were in the possession of a certain motor vehicle then and there being operated in an easterly direction on the aforesaid 39th Street.”

The defendant answered the above allegation as follows:

“4. This defendant admits that it owned one of the automobiles involved herein but denies all the remaining allegations of paragraph 4.”

The defendant was not content with this denial. It went further and in paragraph 10 of its answer stated:

“10. As a further defense this defendant states that at the time of the accident involved herein its automobile was not being operated, driven or controlled by any employee, agent or servant of this defendant nor was it being operated by any one with the knowledge or consent of this defendant.”

The plaintiff filed a reply to this affirmative defense.

There was no reason for the defendant to plead an affirmative defense. The criteria to be applied in determining if a defense is or is not of an affirmative nature is whether, by the raising of it, a defendant gives color to his opponent’s claim and then asserts new matter by which the apparent right is defeated. Cunningham v. City of Sullivan, 15 Ill App2d 561, 147 NE2d 200 (1958). If a particular issue is raised by denial, there is no need to assert it as an affirmative defense. The defendant had already denied agency in paragraph four of its answer. Issue was thus joined on this question. Paragraph ten added nothing. It admitted no apparent right and interjected no new matter which would have the effect of defeating the plaintiff’s allegation.

The defendant’s initial mistake was compounded by an instruction. At the conference on instructions the defendant objected to the plaintiff’s instruction on the issues and submitted its own which the court accepted. In part it was as follows:

“The defendant also sets up the following affirmative defense:
“The defendant denies that at the time of the accident involved herein, its automobile was being operated, driven, or controlled by any employee, agent or servant of the defendant, nor was it being operated by anyone with the knowledge or consent of the defendant.”

The burden of proving an affirmative defense is upon the party asserting it. Krueger v. Dorr, 22 Ill App2d 513, 161 NE2d 433 (1959). In accordance with this rule the court gave the jury the plaintiff’s burden of proof instructions which stated, in part:

“In this case defendant has asserted the affirmative defense that its motor vehicle was not being driven by any agent of the defendant. The defendant has the burden of proving this defense.”

The giving of this instruction was error, but it was error brought about by the defendant’s injection of the affirmative defense into the case in its answer and the repetition of it in its instruction. A party cannot object to an instruction which it has invited, nor can it complain of an erroneous instruction caused by its improper pleading in the first instance. McNealy v. Illinois Cent. Ry. Co., 43 Ill App2d 460, 193 NE2d 879 (1963).

The defendant’s final contention is that the verdict was the result of prejudicial argument. Only one allegedly prejudicial comment of the plaintiff’s counsel was included in the defendant’s post-trial motion. The other comments complained of are therefore waived. Hoff v. Yellow Cab Co., 53 Ill App2d 333, 203 NE2d 8 (1964); Richichi v. City of Chicago, 49 Ill App2d 320, 199 NE2d 652 (1964).

In his closing argument the plaintiff’s attorney asked the jury to look kindly upon the plaintiff. The defendant’s objection was sustained. The attorney then told the jury that the plaintiff was not looking for sympathy and that he was not entitled to it. The court’s ruling and the attorney’s apologetical retraction removed any prejudice that could possibly be attributed to his original statement.

The plaintiff testified that his medical expenses, lost wages and the loss he suffered by having to relinquish his investment in a delicatessen store totaled $5,834.75. His testimony as to damages was uncontroverted. In light of these damages the jury’s verdict was not excessive.

The judgment is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.


text:
    Philip Pollack, Plaintiff-Appellant, v. Jack Kuhn and Beatrice Kuhn, Defendants-Appellees.
    Gen. No. 52,681.
    First District, Third Division.
    May 23, 1968.

      Marvin Patrick Cohen, of Chicago, for appellant.
    Alfred M. Rogers, Jr., George V. Bobrinskoy, Jr., and Neil G. Bluhm, of Chicago (Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of counsel), for appellees.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiff-appellant, Philip Pollack, seeks to recover the rental value of a home occupied by the defendants, Jack Kuhn and his wife, Beatrice. The trial court held that the action was barred by a decree entered in a prior partition proceeding.

The house, located in Skokie, Illinois, was owned in joint tenancy by the Kuhns. In March 1965 Pollack bought the undivided one-half interest of Jack Kuhn, less his estate of homestead. The purchase was made from the trustee in Jack Kuhn’s bankruptcy proceeding and the purchase price was $1,000. In the same month, Mrs. Kuhn conveyed her undivided one-half interest in the home to her son, Neil Bluhm.

Thereafter, in April 1965, Neil Bluhm and Jack Kuhn brought suit in the Circuit Court of Cook County to partition the property. Pollack was named as a defendant. He was served with process but failed to appear or answer and in August 1965 an order of default was entered against him. In November a decree of partition was entered and the case was referred to a master in chancery. In January 1966 Pollack petitioned the court for leave to file his appearance and his claim for the rental value of the house during the partition proceeding. The petition was referred to the master. Although the master’s report had not been filed at this time, the case had been closed and the master recommended that the petition be denied because of Pollack’s failure to justify his late appearance. The court denied the petition.

A decree of sale was entered in August 1966 and the house was sold in November at a public sale at which Neil Bluhm prevailed over Philip Pollack for a sum insufficient to cover more than the mortgage loan, the costs of the suit and the expense of preserving the property during the partition suit. In January 1967, by final decree, the court approved the partition sale.

Pollack did not object to or attempt to appeal from the partition decree. Instead, in March 1967, he filed the present action against Jack and Beatrice Kuhn in which he sought to recover rent for their use of the residence between March 1965 and November 1966. The defendants moved to dismiss on the ground that the action was barred by a prior judgment. (Ill Rev Stats 1965, c 110, § 48(1) (d).) The motion was sustained. The order of dismissal is the subject of this appeal.

Pollack contends that the action is not barred because the issue of rent was not decided on the merits in the partition suit. He concedes that if the action is barred against Jack Kuhn it is also barred against Beatrice Kuhn even though the latter was not a party to the prior proceeding.

Section 5 of the Partition Act (Ill Rev Stats 1967, c 106, § 48) provides:

“The court shall ascertain and declare the rights, titles and interest of all the parties to such suit, the plaintiffs as well as the defendants, and shall give judgment according to the rights of the parties.”

Under this provision, all parties to a partition action are required to assert their claims with respect to the real estate involved so that their interests may be protected by the decree of the court; after the decree has been rendered, the parties are bound by its terms and cannot impeach it or set it aside in a collateral proceeding. Murch v. Epley, 385 Ill 138, 52 NE2d 125 (1943); Chapman v. Chapman, 256 Ill 593, 100 NE 166 (1912).

In the Chapman case, James Chapman, a cotenant, conveyed his interest in some land to a third person, who in turn conveyed the interest to Charles Chapman. In a partition suit brought by another cotenant to which both Chapmans were defendants, a decree was entered naming Charles the owner of the portion formerly owned by James. Thereafter, James brought suit against Charles claiming that Charles held the property in trust for him and demanding an accounting of the profits and conveyance of the land. The court held that the decree in the partition suit was a bar to the subsequent suit since the ownership of the land could have been litigated between James and Charles in the partition proceeding.

In Rhodes v. Rhodes, 78 Ill App 117 (1898) the court held that the whole subject of rents could be adjudicated in an equity suit for partition:

“A proper division of rents and profits is germane to a bill in partition, and relief on that subject will be granted by the decree in the partition suit.”

The court in Graham v. Koop, 213 Ill App 576 (1919) adjudicated mechanics’ liens in a partition suit despite the separate statute for the enforcement of such liens. The court said:

“It is well settled that if a court of equity acquires jurisdiction on any equitable ground, it will retain the cause and afford complete relief, although it becomes necessary to enforce purely legal rights.”

The court cited Sherlock v. Village of Winnetka, 59 Ill 389 (1871) wherein it was stated:

“It is an established rule, that where chancery takes jurisdiction for one purpose, it will retain it for all purposes necessary to complete justice between all parties interested in the subject matter.”

Section 5 of the Partition Act and the cases arising under it are determinative of the present action. Pollack was a party to the partition proceeding and was served with process. If he had appeared without undue delay, he could have litigated his interest in the Skokie residence vis-a-vis that of Jack Kuhn. Having failed to take advantage of this opportunity and having failed to appeal from the partition decree or the order denying him leave to file his claim, he is now bound by the decree which declared his interest to be a one-half ownership subject to Jack Kuhn’s estate of homestead and he cannot now insist upon any rights in that property which were not protected by that decree.

The judgment is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.


author: SMITH, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jere Price, Defendant-Appellant.
    Gen. No. 10,915.
    Fourth District.
    May 23, 1968.
    Rehearing denied and supplemental opinion July 16,1968.

      McGrady & Madden, of Gillespie, and Emerson Baez, of Alton, for appellant.

      Thomas P. Carmody, State’s Attorney of Macoupin County, of Carlinville, and John W. Russell, Assistant State’s Attorney, for appellee.
   SMITH, P. J.

The defendant was sentenced to the penitentiary for a period of 2-9 years on a jury’s verdict finding him guilty of forcible rape. He seeks a reversal in this court on the ground that his guilt was not established beyond a reasonable doubt. In the alternative, he seeks a new trial on the ground that three of the People’s instructions were prejudicially erroneous and deprived him of a fair trial.

Ida Bell Reynolds, the prosecutrix, a married woman, working in Alton, and living with her husband and small children near Wilsonville, left Alton alone in her car about 11:00 p. m. on the night in question. As she drove homeward along a secondary highway known as the Fosterburg Road, a car followed her with its bright lights on, then dimming and finally displaying a flashing red light. She pulled to the side of the road and stopped. The driver came to her car and told her that she had run a speed trap in going through Fosterburg and that the patrolman there had sent him to bring her back so that a ticket could be issued. She got into his car and proceeded back towards Fosterburg. After driving around for some time, the man finally said that he supposed that the patrolman was not coming and he would take her back to her car. Following further aimless driving, he asked her to undress and, on her refusal, he pulled a gun, pointed it at her and said, “I said take off your clothes.” When she hesitated, he said, “I’ll give you to three” and started counting and clicked the gun. She then stripped. The act of intercourse took place in the front seat of the car and at its conclusion, he directed her to dress. He also told her that he was sorry and asked her forgiveness and told her if she ever told anybody, he would get rid of her and her family by shooting them. The defendant’s automobile was a golden brown with light-cream colored top with the interior, including the seats, a brown trimmed in white. The car had a floor shift and the seats went all the way across. She described her assailant as a rather short man around 5'8"; shorter than that, around 5'6"; had brown hair and rather fat jaws which made his eyes small and squinty; that he was very, very plump with a stomach that almost hung over his belt, and that his hair was short with a rather long crew cut. He had on a pair of Levis, a very large belt with a large buckle, a sports shirt and a lightweight jacket and was very neat. She returned to her car, sobbing, and on reaching her home, she found her husband waiting up for her around 1:15 a. m. Her clothes were all wrinkled up and messy and very wet from the act of rape. He assisted her in cleaning herself and they then went to bed. The following evening they reported the incident to the police officer at Bunker Hill. The sheriff and the State’s Attorney’s office investigated. She went to Alton, Illinois, to check out a suspect, but that suspect did not turn out to be the person who had attacked her.

Some six months later, the husband and wife were out driving on a road near Alton and she saw a car that resembled the one driven by her assailant, and Mrs. Reynolds identified the occupant when they turned around and came back so she could face him. Her husband testified that she started “shaking and crying” and identified him. She also identified him in court and further stated that when he returned her to the car, he told her that she had better not “tell anybody what happened or that he would get rid of me and my family by shooting us.”

Her husband testified and confirmed her testimony as to the post-occurrence events, her description of the car and the man and the identification. He further testified that when she got home, she jumped out of her car, left the lights on and the door of the car ajar and told him that it was awful, that he threatened her with a gun, and he would kill her if she told anyone and stated that a man raped her. She was crying and sobbing bitterly.

The police officer in Bunker Hill testified that the husband and wife reported to him about 7:00 p. m. the following day and testified that she related to him the circumstances of the occurrence. The details of her story as told to him are substantially the same as those related by her above.

The defendant testified that on the day in question, he did not wear Levis, and did not own any and had never worn any, that he had never had a black belt, had never owned a gun, and didn’t own one now. He described the car that he owned in substantially the same fashion as she had. He further testified that on the night in question, he was at his girl’s house from about 11:30 and left there about 2 hours later. He testified that her parents came in while they were there. The girl friend testified substantially the same thing, as did her father. The defendant’s father and mother testified that he didn’t own Levis or a belt with a large buckle.

Another witness testified that on the evening in question the defendant and his girl friend came to the Moonlight Restaurant about 10:00 p. m. and stayed there until about 11:30 and left together. He further testified that the defendant was wearing a sports coat, was neat and well dressed, he had on dress pants and a white shirt and he thought he had on a tie. He didn’t remember any one of the 10 to 20 other people there that night.

In rebuttal, the State produced a service station operator who was acquainted with the defendant. He testified that the defendant told him that he belonged to the Junior Deputies and they talked about a flashing red light. Defendant told him that he used this red light in case of emergencies and would drive out and find spooners at night and when he pulled up on them and turned this red light on them, they would get scared and you would really see them take off. The witness told him he was going to get himself in trouble with it and he just laughed. This witness did not see the red light. Another witness in rebuttal testified that he knew the defendant and talked with him about a pellet gun in the summer of 1965, and that Jere told him he had a pellet pistol. He also testified that the Chevrolet automobile owned by the defendant was a copper bronze. Another witness in rebuttal testified that he had a conversation with the defendant in December and discussed a great big gun with a white handle or bone handle. Defendant said that it was his Dad’s or Ed’s gun. In surrebuttal, the defendant said that he could not recall saying that he was a Junior Deputy, could not recall any conversation about a red light, did not recall any conversation about his ownership of a pellet pistol, and testified that the conversation about the second gun was a year after the incident in question.

The testimony of the prosecutrix, uncontradicted and not implausible, establishes that a rape was committed. Defendant asks us to remember the venerated observation of Lord Hale years ago that accusation of rape is easily made, difficult to prove, and even more difficult to be defended by an innocent man. It is pointed out that here the issue of force and against her will rests solely in the testimony of the alleged victim. It is urged that it is possible that she was returning from a voluntary and amorous siesta with an unidentified swain and, finding her husband up and awaiting her, fabricated the story of rape to avoid an accusation of infidelity. The Kinsey Reports are cited as some authority for the proposition that in the moral atmosphere of 1966, the cogency of Lord Hale’s remarks has greater significance than when they were made. It is further suggested that her identification of the defendant some six months after the incident may well have been prompted by her desire to conclusively establish in her husband’s mind that she had not been unfaithful. If these seeds were planted in closing arguments to the jury, they fell on barren ground and never sprouted. The jury, to whom under our system is accorded the evaluation of such inferences, gave them little weight. They have gained neither weight nor substance enroute to this court.

The principal thrust against proof beyond a reasonable doubt is based on the proposition that a positive alibi established by the defendant and three other witnesses cannot be disregarded where the only evidence contradicting it rests upon the identity of the defendant and where from the entire record there is a reasonable doubt of the guilt of the defendant because of the uncertainty of identification (citing People v. Kidd, 410 Ill 271, 102 NE2d 141). Where such is the case, our Supreme Court has not hesitated to reverse. People v. McGee, 21 Ill2d 440, 173 NE2d 434; People v. Gardner, 35 Ill2d 564, 221 NE2d 232. Neither the rule stated nor the cases cited fit into the factual groove of this case. Defendant’s position was effectively repudiated in People v. Wheeler, 5 Ill2d 474, 126 NE2d 228. It was there noted that alibi is an affirmative defense and where the corpus delicti is proved, together with evidence tending to show the guilt of the defendant, the burden of establishing the alibi rests on him even though upon the whole case his guilt must be proved beyond a reasonable doubt. It was further stated that where the identification of a defendant is positive and credible, a guilty verdict may be sustained notwithstanding there may be otherwise uncontradicted alibi evidence and even though the alibi witnesses may be greater in number than those identifying the accused. People v. Renallo, 410 Ill 372, 102 NE2d 116; People v. Lamphear, 6 Ill2d 346, 128 NE2d 892. In People v. Mack, 25 Ill2d 416, 185 NE2d 154, a rape case, the prosecutrix saw the defendant on the streets in Chicago the day after the incident and it was there held that where the disputed testimony is not on the issue of whether the crime was committed, but rather on the identity of the defendant as the person who committed the crime, corroboration is not necessary if the testimony of the prosecutrix is not inconsistent nor does there appear to be any reason for regarding it as unworthy of belief. That rule applies here. In addition, however, we may point out that the red light, the car, and the gun, circumstantial as it is, is nevertheless some corroboration which places the defendant at the scene of the crime. The suggestion that the six-month interval between the incident and her identification would tend to minimize her precise identification, would also impugn the recollection of the alibi witnesses who, unlike the prosecutrix, had no compelling reason to remember that occurrence date or their own whereabouts. There is nothing in this record to suggest that the jury did not properly consider and weigh all of these circumstances. We are not at liberty to substitute our judgment for theirs where the question of credibility and plausibility has been properly considered.

Criticism is leveled at People’s Instruction 11 which was as follows:

“The court instructs the jury that the State is not obligated to produce every witness to a crime and the failure to produce a witness does not give rise to a presumption that the testimony of that witness would be unfavorable to the prosecution.”

In the instruction conference, the defendant objected to this instruction stating “no authority for that. I would like to know what it is. I failed to find any.” The State’s Attorney replied, “That’s included in the model set.” This is the sum and substance of the assistance given to the trial court in the conference. The double-barreled attack against this instruction asserts (a) the judge effectively told the jury that a crime had been committed and that was the basic issue in the case and (b) there was a witness to the crime which the State had not produced when in fact there was no such eyewitness. While these criticisms might very well have been obviated by specific objections in the trial court at the conference on instructions, they are, nevertheless, not ipso facto waived under Supreme Court Rule 451, which states that “. . . substantial defects are not waived by failure to make timely objections thereto if the interests of justice require.” Ill Rev Stats 1967, c 110A, § 451. This rule does not remove the necessity for making specific objections to instructions in the conference on instructions in the trial court. Rather it places squarely upon the shoulders of a defendant who seeks to avoid a waiver in the reviewing court the obligation to establish (a) that the defects in the instruction are substantial and (b) that its giving resulted in denying to the defendant justice and a fair trial. People v. Knutson, 17 Ill App2d 251, 149 NE2d 461, is no barrier to this conclusion for the very simple reason that in that case this issue was neither presented to nor decided by the court (see committee’s comments following Rule 451). In civil cases, the lifeblood of an instruction is made up of legal principles supported by evidentiary facts which require instruction by the court for the guidance and direction of the jury in arriving at a proper result. Shore v. Turman, 63 Ill App2d 315, 210 NE2d 232; Turner v. Seyfert, 44 Ill App2d 281, 194 NE2d 529. The State justifies the giving of this instruction on the ground that it would explain why they did not call Dr. Webbe, who did not examine the prosecutrix two days later because she had started her menstrual period or the mother of the prosecutrix, who was not told about the rape because of her nervous condition, or a police sergeant who testified concerning the prosecutrix’ refusal to identify a suspect in Alton. These witnesses were not endorsed on the indictment and the subject matter of their testimony related only to facts which would tend to corroborate the statements of the prosecutrix on collateral, incidental and inconsequential matters. None of them were in any sense of the word witnesses “to a crime.” While the plea of not guilty placed the fact of rape in technical dispute, there is in this case no evidence contradicting that fact. Indeed the inquiry of the jury in this case and the profile of the issues presented to the jury was not whether in fact a rape was committed, but “whodunit.” The occurrence events were factually undisputed and the occurrence events established the corpus delicti. Nevertheless, the argued conclusion that the court was telling this jury that there was another witness available to the State who observed the physical act which constitutes the crime; that said witness need not be called by the State and that failure to call such witness created no presumption that his testimony would be adverse to the State is to unduly denigrate the common sense of the jury. Where, as here, the act of rape was conclusively established by the evidence and its details wholly uncontradicted, we fail to see that the giving of this instruction was so substantially erroneous as to deprive the defendant of a fair trial. The determination of guilt in this case rested not on whether the crime of rape had been committed, but whether or not the defendant participated in it. Errors, defects or irregularities which do not affect substantial rights should be disregarded. Ill Rev Stats 1965, c 38, § 121-9.

People’s Instruction 26 reads as follows:

“The court instructs the jury that it is not necessary in every rape case that medical testimony be produced. The fact that rape was committed may be proved by testimony, other than medical testimony.”

The prosecutrix stated that she had been examined by a doctor two days after the occurrence, but then stated that he didn’t examine her because she had begun her menstrual period. The objection to the instruction now raised is that the court was telling the jury that in every case the crime of rape may be established without medical testimony and that this is simply not true. We think this is a strained construction of the language used and it is certainly not clear to us how it in any way prejudiced the defense. The prosecutrix herself negated any evidence of bruises, lacerations or a ruptured hymen. Under the facts in the case the most that a medical examination might have established was through the presence of sperm that sexual intercourse had taken place and this was undisputed. Such testimony would have been consistent with both the theory of the State that a rape had been committed and with the theory of the defense that the prosecutrix was engaged in a volitional pleasurable, nocturnal jaunt of her own. On this record, we are unable to see where this instruction was substantially defective or how in any way it might have misled the jury.

People’s Instruction 21 defined reasonable doubt as requiring an “abiding conviction of the truth of the charge.” A defendant’s instruction advised the jury not to condemn unless the evidence excludes from his mind a reasonable doubt as to the guilt of the accused and “unless he is so convinced by the evidence ... of the defendant’s guilt that as a prudent man he would feel safe to act upon that conviction in the matters of the highest concern and importance to his own dearest personal interest under circumstances where there was no compulsion resting upon him to act at all.” The giving of instructions defining and refining the term “reasonable doubt” has been criticized by the Supreme Court. People v. Davis, 406 Ill 215, 92 NE2d 649. We join in expressing considerable dubiety about the value or the utility of such instructions. They generally degenerate into an endless litany of words less meaningful to the jury than the mere statement that the evidence must establish the defendant’s guilt beyond a reasonable doubt. In the instant case, we are of the opinion that this instruction is neither substantial error nor can it be characterized as depriving the defendant of a fair trial.

We, therefore, conclude that there was no reversible error in the trial of this case and that this judgment should be and it is hereby affirmed.

Affirmed.

TRAPP and CRAVEN, JJ., concur.

Supplemental Opinion on Denial of Petition for Rehearing.

The nature of the Petition for Rehearing suggests the propriety of further comment. The jury was strongly and adequately instructed by the trial court upon the presumption of innocence, the prosecution’s burden of proof, that the jury should not single out any particular instruction to the exclusion of others, and that in the giving of any instruction the court was not indicating any opinion as to the facts or the innocence or guilt of the defendant. Indeed in one instruction, the court used the phrase “if any such offense was committed.” We further note that defendant’s given Instruction No. 15 contained the language “that the defendant was not in the place where the crime was committed, but elsewhere.” Defendant’s given Instruction No. 13 contains the language “you have a reasonable doubt that the defendant was present at the scene of the crime and participating in the same when the crime was committed.” Two other instructions tendered by the defendant used like or similar language in reference to the crime and were refused by the trial court.

If the seeds of misunderstanding on the part of the jury was engendered by People’s Instruction No. 11, it seems abundantly clear that they were fertilized by the defendant’s tendered instructions, given instructions and theory of defense. “He was then satisfied that the error alleged was not substantial and did not prejudice his case before the jury. . . .” People v. Keagle, 7 Ill2d 408, 414, 131 NE2d 74, 78.