text:
    Lee Graff and David Check, Co-Partners d/b/a Graff & Check Real Estate, and Lester Graff, Plaintiffs-Appellees, v. Irene Whitehouse, Defendant-Appellant.
    Gen. No. 50,711.
    First District, First Division.
    May 23, 1966.

      Baraz and Sotos and Perry L. Weed, of Chicago (Perry L. Weed, of counsel), for appellant.
    Cohen & Berger, of Chicago (Samuel S. Berger and Warren Krinsky, of counsel), for appellees.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendant appeals from a judgment entered in favor of the plaintiffs for the sum of $4,500 and costs. Plaintiffs sued for damages sustained allegedly by reason of wrongful acts of the defendant depriving them of real estate broker’s commission on the sale of certain property.

The circumstances developed in the trial are as follows. Plaintiffs have been licensed and practicing real estate brokers in Chicago for many years. Prior to 1954 Lester and Lee Graff participated as brokers in real estate transactions wherein the defendant bought and sold various properties. They also managed several properties owned by her. In the latter part of 1954 Charles Field gave Lee Graff a written 60-day exclusive sales contract regarding property he owned at 54th and Kimbark Avenue. After the expiration of the 60 days, the listing was continued on an oral basis. Field did not list this property with any other broker.

Lester Graff testified that in November 1954 his brother Lee suggested that he get in touch with defendant, Irene Whitehouse, regarding a “good piece of property.” He did call her and made arrangements to have her come to the office of Graff & Check. The next day they met with David Check, Lee Graff and Mr. White-house. All five of them proceeded to the Field property and inspected the outside appearance of the building. Lee Graff, with Mrs. Whitehouse, entered and examined two or three of the apartments. Mrs. Whitehouse indicated that she “liked” the building but did not have sufficient cash to purchase. Lester requested her to make an offer but she refused saying she wanted to think about it. She was then given a statement of the income, expenses and other information concerning the building taken from the files of Graff & Check.

In December 1954 a second meeting and visit was arranged. All five again visited the property and examined the exterior. Lee Graff, David Check and Mr. Whitehouse also inspected the boiler room and basement. Again, when asked to make an offer subject to the cash she had, Mrs. Whitehouse said she wanted to see the building once more. On a third visit in January 1955 she said she wished she could buy it but was short of money.

David Check gave substantially the same account of the three visits. Some time later defendant took away from them the management of her buildings. No reason was given, they did not ask for any, and, according to Check, no animosity was involved. The asking price in the exclusive sales contract for the purchase of the Field property was $92,500 or $93,000, including a commission on the basis of the rates of the Chicago Real Estate Board.

Lee Graff substantiated the testimony of David Check and Lester Graff. The exclusive contract, he said, had expired before he had contacted Mrs. Whitehouse regarding the property. He told Field more than once that he had a “very hot prospect” for the building, but never told Field the name of his prospect. He called defendant after learning that she purchased the building and inquired: “How could you do this to me ?” and she hung up on him.

The owner, Charles Field, real estate broker, insurance broker and attorney, testified that he purchased the property in 1953 with Lee Graff acting as broker. In 1954 he approached Lee, said he was interested in selling the building for $92,500 and gave the exclusive 60-day sales contract. After the expiration of the 60 days, he continued the listing with Graff & Check orally. He gave them income and expense information regarding the property to be passed on to prospective purchasers. In February of 1955, a man came to his home and asked him if he was interested in selling this property. Field told him he was and that the asking price was $92,500. The man then said, “Would you take $88,000 provided we gave you all cash exclusive of the first mortgage. . . . ?” Field asked the man if he represented any broker, particularly “Gold and Graff” [Graff & Check] because he would then be obligated to pay the broker’s commission. The man told him he was representing a relative who would pay him if any commission was involved and Field would not be obligated in any way. Field accepted the proposal. The man took out a prepared contract containing the legal description of the property lacking only the amount of the sale price, which he then filled in with pen and ink. The parties signed, the man gave Field the earnest money check and was seen by Field no more.

A Mr. Clifford Rubin, attorney, called and made the arrangements for the closing of the deal. After a few meetings, the sale was consummated and Field executed the deed to American National Bank as trustee under Trust No. 11023. It was stipulated into the record that defendant, Mrs. Irene Whitehouse, was the beneficiary of this land trust. Field said he was at no time informed by the plaintiffs that they had a prospective customer for the property, nor did he ever meet Mrs. Whitehouse. He also said that plaintiffs never requested that he pay a commission for the sale.

Defendant, Irene Whitehouse, admitted prior dealings with Graff & Check and payment of commissions to them involving purchases by her of property through them. She denied being approached or shown by them the property involved or having conversations with plaintiffs regarding this property. She said she purchased the property through Benjamin Klein, a broker and relative “who works out of an office for Levinson.”

Clifford Rubin, since deceased, was her attorney and closed the deal in her behalf for the price of $88,000. She testified she paid to Klein a commission of $2,500 and to Levinson $4,300 for obtaining a loan to finance the purchase. Klein, she said, approached her in March of 1955 concerning the purchase of the property and gave her a written statement as to income and expenditures. She was shown the property by him in March, 1955, at which time she entered a few of the apartments. She stated she was never approached by Graff & Check for a commission in connection with this sale and her first knowledge of any demands by them was upon being served with summons in the instant case. Klein and Levinson arranged with Field for the necessary secondary financing including a second and third mortgage on some other property.

The trial court found the issues for the plaintiffs and awarded them $4,500 in damages.

Defendant claims that plaintiffs failed to prove any valid and enforceable contract with the seller and that they were the procuring cause of the sale. The seller, Mr. Field, testified to the existence of the 60-day written exclusive contract with the plaintiffs. After the expiration of the 60-day period, he commissioned plaintiffs to continue their efforts to procure a buyer for $92,500 inclusive of the commission of five percent as set by the Chicago Real Estate Board.

No particular form of agreement is required and ordinarily all that is necessary is that the broker act with the consent of his principal whether such consent is given by written instrument, orally, or by implication from the conduct of the parties. Young v. Zimmer, 56 Ill App2d 298, 206 NE2d 281 (1965), and cases cited therein. The evidence is clear, uncontradicted and convincing that Field knew plaintiffs were brokers who would request a commission if they effected a sale of his property and he recognized this when he inquired of the person who procured his signature and consent to the sale, whether he (the man) represented any broker, particularly Graff & Check. The trial court heard the witnesses and concluded that plaintiffs did procure the sale. Evidently, the court gave no credence to the defendant’s story and the evidence in the trial substantiates and does not militate against a finding that the sale was effectuated and procured through the efforts of the plaintiffs. They introduced the defendant to the property, the income and expenditures involved, and the terms of the sale. She expressed her desire to purchase but hesitated because of financing. Plaintiffs repeatedly suggested she discuss her ability to make the purchase or make some proffer subject to her cash resources. Although she declined, claiming inability to meet the terms, she ultimately purchased the property upon a basis within her means and upon terms she could have had through the plaintiffs. The transaction was not consummated on substantially different terms and the record indicates no fundamental differences between the ultimate sale negotiated and the terms of the sale proposed by the plaintiffs. It was clearly an attempt by the defendant to gain advantage by reducing the purchase price through the avoidance of a commission due the plaintiffs.

Defendant contends that plaintiffs abandoned all efforts to effectuate any sale of the property with her when they “did nothing further” after the third visit; that they, therefore, could not be the procuring cause and would not be entitled to a commission from Field. The evidence does not support such a claim. After being shown the property and advised as to the circumstances and conditions involved in the purchase thereof, defendant expressed inability to finance although interested. She intentionally did not discuss with plaintiffs her ability to buy, yet within a short time thereafter entered into the contract of sale through Klein, who had all the terms prepared beforehand. He inserted the price after satisfying Field that no commission would be required of the seller. The evidence clearly established that defendant took advantage of plaintiffs’ efforts and services as brokers and deliberately attempted to deprive them of their commission.

As stated in Hackett v. Farkas, 19 Ill App 2d 309, 314, 152 NE2d 475 (1958): “Under the law in Illinois, following Lumley v. Gye, 2 E & B 216, a defendant is liable for intentionally, and without justification, inducing another person to breach his obligations with a third party whereby the third party suffers damages.” The conduct of the defendant in causing the title to be transferred into a land trust of which she was the beneficiary so soon after her dealings with the plaintiffs, the circumstances of procurement of the contract for sale and its consummation, in view of her knowledge of plaintiffs’ interest, can only be construed as an effort on her part to deprive plaintiffs of a commission which would otherwise be due from Field. Under the principle expressed in Hackett, defendant was answerable to the plaintiffs in damages.

We have considered defendant’s other contentions and find that they do not affect the application of the principle herein quoted from Hackett as being dispositive of this appeal. The allegations, facts and circumstances adduced in the trial support the trial court’s finding that defendant, by her conduct, caused damage to the plaintiffs in the amount assessed. The judgment is affirmed.

Affirmed.

MURPHY and BURMAN, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE ENGLISH

license: Public Domain

text:
    Johnson Ford Company, Inc., Plaintiff-Counter-Defendant, Appellant, v. Philip Lewan, Defendant-Counter-Plaintiff, Appellee.
    Gen. No. 51,075.
    First District, Fourth Division.
    June 3, 1966.

      William S. Blatt, of Chicago, for appellant.
    George D. Karcazes, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

The motion now before us is that of defendant to strike a document entitled “Statement of Facts” filed by plaintiff in the trial court as part of the record in this case. The “Statement of Facts” bears a certification by the trial judge that it is a “correct, full and true statement of the facts material to” the controversy, and indicates that it may be incorporated in the record on appeal in lieu of a report of proceedings.

In the trial court plaintiff gave due notice to defendant that on December 21, 1965, it would move for certification of the “Statement of Facts” by the trial judge. On that date an order was entered which did not purport to continue the motion to a later date, but rather purported only to “extend the time for approving and filing of Statement of Facts to December 27th, 1965.” This does not have the same effect. The establishment of a time within which a document may be presented for approval and filing does not automatically bring the matter before the court on the last day of the authorized period. A motion must be made for that purpose, and on due notice.

When no order of continuance was entered, the validity of the original notice terminated, and no further notice was ever given. Consequently, when plaintiff, ex parte, presented the “Statement of Facts” for the court’s approval on December 27, 1965, there was a failure of compliance with Circuit Court Rule 2.1 pertaining to notice. McFadden v. Wernecke, 35 Ill App2d 441, 183 NE2d 181.

As to its contents, the “Statement of Facts” is governed by Supreme Court Rule 36. Ill Rev Stats (1963), c 110, § 101.36. The document must be a report of proceedings setting forth the testimony, the rulings of the trial judge, etc., pursuant to paragraph (1) (c); or it must be a statement of facts agreed to by the parties on written stipulation, pursuant to paragraph (1) (d). The rule contemplates no other kind of document for preserving a record of the trial proceedings.

The “Statement of Facts” filed in this case is a narrative statement which does not purport to show the testimony as such, nor the names of any witnesses, nor what any particular witness testified to, nor any objections of counsel, nor any rulings of the trial judge (other than the judgment). In short, it obviously does not purport to comply with Rule 36 (1) (c) as a report of proceedings.

The record also discloses that the “Statement of Facts” was not stipulated or agreed to by defendant, so it does not qualify as an agreed statement of facts under Rule 36(1)(d).

The document, therefore, has no standing, and defendant’s motion to strike it is allowed. Feldman v. Munizzo, 16 Ill App2d 58, 64, 147 NE2d 427.

Since the time for filing a proper report of proceedings or agreed statement of facts has expired, and since the only errors relied on for reversal would require consideration of the trial court proceedings, the judgment of the Circuit Court is affirmed. Early v. Early, 13 Ill App2d 394, 141 NE2d 758; Williamson v. Williamson, 11 Ill App2d 572, 138 NE2d 80.

Affirmed.

DRUCKER, P. J. and McCORMICK, J., concur.

       The same case was in this court before on routine appeal under Number 50,607. On June 28, 1965, that appeal was dismissed for failure to file the record in proper time under Supreme Court Rule 36. Ill Rev Stats (1963), c 110, § 101.36.
      Thereafter, on March 7, 1966, we allowed plaintiff’s petition for leave to file notice of appeal instanter under section 76 of the Civil Practice Act and Supreme Court Rule 29. Ill Rev Stats (1963), c 110, §§ 76 and 101.29.

       That rule, in pertinent part, reads:
      (1) Praecipe for Record; Report of Proceedings at the Trial.
      (c) Certification and filing of report of proceedings. This report of the proceedings at the trial, consisting of the rulings of the trial judge, the testimony, all other matters upon which rulings were made, and any other proceedings before the trial judge which the appellant desires to incorporate in the record on appeal, shall be procured by the appellant and submitted to the trial judge . . . and filed, duly certified, in the trial court within 50 days after the notice of appeal shall have been filed.
      (d) Agreed statement of facts. In lieu of a report of proceedings, the parties may by written stipulation agree upon a statement of the facts material to the controversy and present the statement to any judge qualified to certify to the correctness of a report of the proceedings in said case, for his certificate of correctness, and file the same, duly certified, in the trial court within 50 days after the notice of appeal shall have been filed, ....


author: MR. JUSTICE BURKE

text:
    Sherman H. Skolnick and Peter S. Sarelas, Plaintiffs-Appellants, v. Oscar M. Nudelman, Defendant, and Harry G. Fins, Defendant-Appellee.
    Gen. No. 50,934.
    First District, Second Division.
    June 7, 1966.

      Sherman H. Skolnick, pro se, of Chicago, appellant; Peter S. Sarelas, pro se, of Chicago, appellant.
    Harry G. Fins, pro se, of Chicago, appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This appeal is taken from a summary judgment entered in favor of defendant Fins and against plaintiffs Skolnick and Sarelas. The appeal was originally filed in the Supreme Court, but was transferred to this court for lack of a substantial constitutional question. (Skolnick v. Nudelman, Ill S Ct, Gen No. 39210 Sept 28, 1965.)

It appears that prior to October 1962, plaintiff Skolnick was represented by plaintiff Sarelas in three law suits, one in the Superior Court of Cook County and two in the United States District Court. One of the cases in the United States District Court was evidently dismissed, and on October 31, 1962, plaintiff Skolnick wrote a letter to defendant Nudelman, the then President of The Decalogue Society of Lawyers, stating that Skolnick was referred to Nudelman by another attorney, and requesting Nudelman to read and consider four documents relating to the Federal Court action which had been dismissed, namely Skolnick’s complaint, the transcript of proceedings, a letter from the Chairman of the United States House of Representatives Judiciary Committee and several pages from defendant’s answer filed in that action. It further appears that Nudelman gave the letter and the documents to defendant Fins for Fins’ consideration, and that both defendants had a conversation concerning the matter on November 2nd.

Plaintiffs filed this action against defendants on December 13, 1963, alleging (1) a conspiracy between defendants to interfere in the attorney-client relationship of plaintiffs, (2) a conspiracy between defendants to slander the name and reputation of plaintiff Sarelas as an attorney and a person, and (3) a conspiracy between defendants to interfere with plaintiff Skolnick’s civil rights as a litigant and a witness in two law suits pending in the United States District Court.

The complaint alleged, with respect to the slander conspiracy, that in December of 1962 and January of 1963, Nudelman spoke to Skolnick on the telephone and told Skolnick that Sarelas was “a nut,” that Sarelas was “not equipped to handle cases” such as Skolnick’s, and that Fins could better handle Skolnick’s cases. The complaint alleged, with respect to the interference with contract conspiracy, that on July 10, 1963, Fins stated to Sarelas that Sarelas’ client would lose his lawsuit unless Sarelas abandoned the suit, that Fins knew “all about your deposition case, I know all about it,” and that Fins stated to Sarelas that he would lose his lawsuits unless he used Fins’ systems and services of Appellate practice. The complaint finally alleged, with respect to the conspiracy to interfere with Skolnick as a litigant and a witness, that in December of 1962 and January of 1963, Nudelman spoke to Skolnick on the telephone saying that “they’d do a real job on you. . . . When they finished with you, well you’d be sorry you started with bailiffs,” and that “Fins could handle everything,”

On March 30, 1964, defendant Fins filed a motion for summary judgment supported by affidavits and exhibits. Fins’ affidavit alleged, inter alia, that Nudelman turned over Skolnick’s letter to Fins for Fins’ opinion as to whether the decision of the Federal Court was proper and correct, that Fins and Nudelman had a conversation concerning the matter on November 2, 1962, and that no conversation was thereafter held between defendants concerning either Skolnick or Sarelas. A photostatic copy of Skolnick’s letter was attached as an exhibit to the motion for summary judgment.

On June 16, 1964, summary judgment was entered for defendant Fins, and plaintiffs thereafter filed a timely motion to vacate the judgment. On November 18, over five months after the summary judgment order had been entered, plaintiffs filed a motion to file an amended complaint. The amended complaint was directed at Fins, and contained allegations identical to the allegations in the original complaint, in addition to a new allegation concerning the letter from Skolnick to Nudelman and its alleged relationship to the alleged conspiracy. On November 20th, the trial court denied both the plaintiffs’ motion to vacate the summary judgment and their motion to file the amended complaint.

Plaintiffs first maintain that they were deprived of due process of law, equal protection of the law and their rights to a jury trial, by reason of the fact that the trial court entered summary judgment in favor of Fins. No constitutional question is presented, however, since the only question here is whether an issue of fact existed to be tried by a jury. Unless a “genuine issue as to any material fact” is presented by “the pleadings, depositions, and admissions on file, together with the affidavits, if any,” summary judgment shall be granted in favor of the moving party. Ill Rev Stats 1963, c 110, § 57. No issue of fact is tried in a summary judgment proceeding, as plaintiffs maintain, but the summary judgment procedure is employed to determine whether a genuine issue of material fact exists and whether a trial should consequently be had. Proceeding to trial where no genuine issue of material fact is involved would be both frivolous and wasteful. Gass v. Carducci, 52 Ill App2d 394, 202 NE2d 73; Kruse v. Streamwood Utilities Corp., 34 Ill App2d 100, 180 NE2d 731. Unless plaintiffs’ complaint and defendant Fins’ affidavits and exhibits appended to his motion for summary judgment raised a genuine issue of material fact, the trial court properly granted the motion for summary judgment.

At the outset it must be borne in mind that the allegations of the existence of a conspiracy does not of itself constitute an allegation of an actionable wrong upon which liability for damages may be predicated. Rather, it is the wrongful act sought to be accomplished by the alleged conspiracy which may result in liability. Dean v. Kirkland, 301 Ill App 495, 23 NE2d 180; Montgomery Ward & Co. v. United Retail, Wholesale & Department Store Employees, 400 Ill 38, 79 NE2d 46. See also 16 Am Jur2d, Conspiracy, §§ 43-55. Furthermore, it is well settled that an actionable wrong cannot be made out by the vituperous and “profuse interpolation of adjectives characterizing the act to be done” as wrongfully done. See Sulinski v. Humboldt & Wabansia Bldg. Corp., 315 Ill App 392, 402, 43 NE2d 181. The pleading of conclusions alone will not suffice for the factual allegations upon which a cause of action must be based. Sulinski v. Humboldt & Wabansia Bldg. Corp., 315 Ill App 392, 402, 43 NE2d 181.

The allegations of the alleged conspiracy in all three counts of the complaint consist solely of conclusions and “vituperous and profuse interpolation of adjectives.” Count I charges that “the defendant Oscar M. Nudelman, in combination with defendant, Harry G. Fins, who is professedly an attorney, and in furtherance of a conspiracy to malignantly and wantonly inter-meddle with and intentionally interfere with, obstruct, and destroy the aforesaid contractual relationship between the plaintiff, Sherman H. Skolnick and the plaintiff, Peter S. Sarelas; that the said defendant, Oscar M. Nudelman, actively conducted defamation-mongering and rumor-spreading so as to discredit, hinder, and destroy the plaintiff. . . .” Count I then proceeds to set out statements allegedly made by Nudelman to Skolnick concerning Sarelas’ reputation as a person and an attorney. There is no allegation of any statement having been made by Fins directly to any person, other than an allegation based upon hearsay. Plaintiffs attempt to involve Fins in the slander count by way of alleging the conspiracy, thereby attempting to attribute to Fins the remarks allegedly made by Nudelman concerning Sarelas. However, as stated above, the allegations relating to the alleged conspiracy are merely conclusions of the pleaders and are in no way based on any fact tending to show such conspiracy.

Count III restates the conspiracy allegations of Count I and further alleges that “the defendant Oscar M. Nudelman, in combination with defendant, Harry G. Fins, intimidated, threatened and deterred the plaintiff, Sherman H. Skolnick, as a party-litigant and witness in the federal courts in two certain pending lawsuits. . . .” Count HI then proceeds to set out only what Nudelman allegedly said to Skolnick in this regard. Again, Count HI contains no allegation of fact upon which a conspiracy could be based, nor any allegation that Fins made any statement to Skolnick or any one else in this regard. Count III makes out no cause of action against Fins.

Count II restates many of the allegations of Count I and further alleges statements made by Fins directly to Sarelas upon which the claim of interference with contract is based. However, these remarks, that Sarelas drop his lawsuits, that Sarelas employ Fins’ Appellate practice procedures, that Fins was assisting Sarelas’ opponents in those lawsuits in order to defeat Sarelas, and the like, are merely statements generally made by opposing attorneys to one another, and clearly do not constitute actionable wrongs. Furthermore, the fact that Nudelman, an attorney, sought the advice of Fins, another attorney, relative to Skolnick’s letter, does not constitute an actionable wrong.

With regard to plaintiffs’ allegation that Fins inter-meddled in other of plaintiffs’ lawsuits, thereby committing the offenses of champerty and maintenance, the facts alleged show only that Fins stated he was “assisting” plaintiffs’ opponents in those cases. At best, this allegation falls within the interference with contract allegation contained in Count H of the complaint, which has been dealt with above.

An analysis of all three counts of the complaint, together with Fins’ motion for summary judgment, shows that no “genuine issue as to any material fact” was raised which would have required a trial by jury. The trial court correctly entered summary judgment for defendant Fins against both plaintiffs.

Plaintiffs further contend that they were denied due process of law and equal protection of the laws, because “the record does not disclose that the proceedings were in open court . . . and were in fact in chambers and in camera.” No constitutional question is presented by this contention. Furthermore, plaintiffs point to no fact in the record which in any way indicates the proceedings below were not held in open court or were improper in any respect. Upon appeal, every reasonable intendment not negatived by the record will be indulged in support of the judgment. Union Drainage Dist. No. 5 v. Hamilton, 390 Ill 487, 61 NE2d 343; King v. City of Chicago, 53 Ill App2d 484, 202 NE2d 839.

Plaintiffs finally maintain the trial court committed error in denying their motion to file the amended complaint. However, this motion was filed some five months after the entry of the summary judgment; furthermore, the amended complaint was practically identical to the original complaint and the numerous motions and counter-suggestions filed thereafter by plaintiffs. The only new matter raised in the amended complaint was that the letter from Skolnick to Nudelman was used “to set in motion, or to trigger off a natural conspiracy between” the defendants. This matter is again conclusion and speculation, unsupported by any factual allegation. The trial court, in its discretion, properly denied plaintiffs’ motion to file the amended complaint.

The judgment is affirmed.

Judgment affirmed.

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


author: JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ray Brown, Defendant-Appellant.
    Gen. No. 50,413. (Abstract of Decision.)
    First District, Second Division.
    June 7, 1966.
    Marshall A. Patner, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by Not to be published in full.

JUSTICE LYONS.


author: JUSTICE CRAVEN.

text:
    Golda Atherton, Plaintiff-Appellant, v. City of Champaign, a Municipal Corporation, and American Casualty Company of Reading, Pennsylvania, a Corporation, and H. R. Bresee, d/b/a Midwest Adjustment Company, and John Curtis, Defendants-Appellees.
    Gen. No. 10,644. (Abstract of Decision.)
    Fourth District.
    June 6, 1966.

      Mort A. Segall, of Champaign, for appellant; Reno, O’Byrne & Kepley, of Champaign (Vance I. Kepley, of counsel), for appellees, American Casualty Company and City of Champaign; Albert Tuxhorn and T. G. Knappengerger, Jr., of Champaign, for appellee, City of Champaign.
   Opinion by Not to be published in full.

JUSTICE CRAVEN.


author: JUSTICE SMITH.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Larry Jon Sax, Defendant-Appellant.
    Gen. No. 10,695. (Abstract of Decision.)
    Fourth District.
    June 6, 1966.
    Eugene M. Pratt, of Peoria, for appellant; B. H. Hushen, State’s Attorney of Woodford County, of Eureka, for appellee.
   Opinion by Not to be published in full.

JUSTICE SMITH.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Jewell Hopwood, et al., Plaintiffs-Appellants, v. Thomas Hoist Company, an Illinois Corporation, Defendant Appellee and Separate Appellant, v. Sumner Sollitt Company, Third Party Defendant and Appellee.
    Gen. No. 50,180.
    First District, Third Division.
    June 9, 1966.

      Leonard M. Ring, of Chicago, for plaintiffs-appellants.
    Baker, McKenzie & Hightower, of Chicago (Francis D. Morrissey and Thomas F. Bridgman, of counsel), for separate appellant.
    Van Duzer, Gershon & Jordan, of Chicago (Louis Gershon and Horace W. Jordan, of counsel), for third party defendant.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

The plaintiffs, Jewell Hopwood and John Harrod, appeal to this court from a judgment entered on a jury verdict in favor of the defendant, Thomas Hoist Company, and from the trial court’s denial of their motion to set aside the verdict and grant them a new trial. The defendant, Thomas Hoist Company, was also a Third-Party Plaintiff in the lower court and has filed a separate appeal from a directed verdict in favor of Sumner Sollitt Company, the Third-Party defendant, and has also appealed from the trial court’s denial of its motion to set aside this verdict and grant a new trial, in the event that the verdict and judgment is reversed in the original action brought by the plaintiffs against Thomas Hoist.

The contentions of the plaintiffs are: (1) That since a custom cannot reduce the standard of care required by law, it was error for the court to admit into evidence the practice of the defendant not to set certain safety devices upon its hoist until notified to do so by the contractor; (2) that it was improper for counsel for defendant to base his closing argument upon the guilt of the third-party defendant, Sumner Sollitt Company; (3) that prejudicial error was committed by counsel for Sumner Sollitt when he brought out, in the presence of the jury, that plaintiff Hopwood had prosecuted a claim for workmen’s compensation; (4) that the combined prejudicial error in this record resulted in a deterioration of the judicial process to such an extent that the plaintiffs did not receive a fair trial.

The facts are: Plaintiffs brought this action against the defendant hoist company for personal injuries they sustained on September 29, 1955, on a construction project at DeWitt and Chestnut Streets in the city of Chicago. At this time the plaintiffs were employed as carpenters by the third-party defendant, Sumner Sollitt Company, the general contractor of the construction project.

Thomas Hoist was engaged in the business of supplying contractors with hoisting equipment. In September of 1955 it leased to Sumner Sollitt a hoist consisting of a tubular tower made up of different pieces of pipe, a concrete bucket, a platform and cage designed to run along the rail inside the tower after assembly, and a power unit to operate the device. The power unit consisted of three drums, one of which operated the bucket, one the cage, and the other a boom.

The power unit was delivered completely assembled except for the setting of a certain safety device called a Lilly Overwind, which was designed to stop the platform from falling in the event that it descended at a greater speed than that for which it was set. This safety device, although attached to the power unit when it leaves the factory, is set after the equipment is installed in the field and ready for operation. The sections for the tower and the parts for the platform and cage were delivered in a disassembled state; the assembly and erection of the hoist was performed by Archer Ironworks, a subcontractor of Sumner Sollitt.

It was the duty of the general contractor, after the ironworkers finished the installation of the hoist, to enclose the cage with plywood and chicken wire so as to prevent men and equipment from falling out of it, and also to install a gate on the cage, which gate is usually operated by vertical lifting.

After delivery of the hoist and three to four days before the occurrence in question, Mr. Kelly, a workman for Thomas Hoist, visited the job site to install certain fuses which ordinarily were installed prior to delivery. These fuses were necessary so that the iron workers could rotate the drums and unwind the cables that connect the drums on the hoist to the cage. Prior to the installation of the fuses the hoist was not operable, nor was the cage enclosed or ready for carrying personnel.

Mr. Kelly testified that at that time, after installation of the fuses, from his experience it would take approximately 3 to 4 hours to make the hoist operable; also, it would take a week before the cage was readied for carrying personnel. At that time the hoist was not in such an erection state as to enable him to set the safeties. He further stated that when he went to the job site after the accident, the cage was just being installed on the platform.

Mr. Parker, plant superintendent for the hoist company, testified that the safety device is set when Thomas Hoist is notified to do so by the contractor. However, Sumner Sollitt did not so notify Thomas Hoist until after the accident. Mr. Kelly also testified that he was not in the habit of setting the safety until notified to do so, and he had not been notified until after September 29,1955.

At the time of the accident, the hoist was operated by an employee of Sumner Sollitt. Thomas Hoist had no record that the hoist was being used prior to the accident, and likewise had no knowledge that it was being used for the carrying of personnel. The plaintiffs sustained their injuries when the hoist, upon which they were riding, fell from about the 4th or 5th floor to the ground level.

After the accident, Mr. Parker was notified and he came to the site to conduct an investigation. He found that the cable had not broken, and that the braking mechanism, which was new, operated on the hoist without incident when proper pressure was applied thereto. He found that the platform was not enclosed, as was normal when personnel was to be carried upon the hoist.

On August 30, 1956, Jewell Hopwood sued the defendant. Thereafter Sumner Sollitt intervened in that case in order to protect its lien for workmen’s compensation payments made to Hopwood. On October 29, 1962, Thomas Hoist obtained leave to file a third-party complaint against Sumner Sollitt. This was dismissed on motion, as was a later amended third-party complaint. John Harrod filed his suit against the defendant on February 20, 1957. On June 27, 1963, the defendant filed a third-party complaint in the Harrod case against Sumner Sollitt, which was later dismissed.

The two cases were consolidated and started to trial without third-party complaints. This trial resulted in a mistrial on April 10, 1964. After the mistrial the defendant obtained leave to file a second amended third-party complaint in the consolidated actions. The case was assigned for trial on May 27, 1964. After all of the evidence was heard the trial court directed a verdict for the third-party defendant. The jury then returned a verdict in favor of the defendant and against the plaintiffs.

The amended complaints of the plaintiffs contained two counts: Count I was based upon a wilful violation of the Scaffold Act (Ill Rev Stats 1953, c 48, §§ 60-69) in that the defendant failed to erect and construct a safe hoist, allowed said hoist to be used before it was safe for personnel to be carried thereon, failed to attach a certain safety device to said hoist, and placed the hoist upon the job with defective brakes; Count HE was a common law action for negligence wherein plaintiffs recited allegations similar to those in the statutory cause of action.

At the trial instructions were tendered to the jury which discussed the effect of the Scaffold Act upon plaintiffs’ case. Section 69 of the act, imposing liability, provides:

“Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this act, shall comply with the terms thereof. . . .
“For any injury to person or property, occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured. . . .”

The evidence adduced at the trial indicated that the disassembled hoist supplied by Thomas Hoist, which was assembled by Archer Ironworks, an agent of Sumner Sollitt, was not defective. Testings made after the accident disclosed that had sufficient pressure been applied to the new brakes by the operator, who was an employee of Sumner Sollitt, the hoist would not have fallen. Also, the hoist at the time of the accident was completed only for the carrying of materials. There was no obligation or duty on Thomas Hoist to have men stationed at the job site to prevent the employees of Sumner Sollitt from riding on the hoist in its then condition, and until such time as Thomas Hoist knew that the hoist was to be used by personnel, there was no duty upon it to install the safety device.

Furthermore, the rental agreement covering delivery of possession and custody of said hoist in its disassembled state for the Sumner Sollitt Company included the following terms:

“After delivery, the entire control and operation of the hoist, elevators, towers, accessories, operators and/or any other item of construction equipment, together with the appliances connected therewith are under the absolute authority of the lessee (Sumner Sollitt Company).”

The jury was fully apprised of the foregoing facts, and determined by their verdict that the defendant was not liable to the plaintiffs. We agree with the jury. However, the plaintiffs on appeal argue that various alleged trial errors affected the verdict of the jury. These alleged errors will now be considered.

The first contention of the plaintiffs, that it was error to admit in evidence the practice of the defendant not to set the safety device until notified to do so by the contractor, is without merit. We agree with the contention of the plaintiffs that a custom or practice cannot reduce the standard of care required by the law. (Worcester v. Pure Torpedo Co. (7th Cir), 127 F2d 945; ILP, Customs, vol 15, p 447.) However, in the instant case, this evidence was adduced for the purpose of showing that the defendant was not negligent, and to show it did not violate the Scaffold Act; it was not adduced for the purpose of showing a practice of the trade which would tend to relieve the defendant of a standard of care.

The alleged erroneously admitted evidence was actually necessitated by the allegations of the plaintiffs’ complaints. Count I of these complaints alleged that the defendant wilfully violated the Scaffold Act in that it, among other things, permitted the hoist to be operated before it was safe for workmen to be carried thereon; Count II was based upon the alleged negligence of the defendant in supplying a defective hoist and in failing to set the safety device. Since the plaintiffs framed their complaints around these issues the defendant was entitled to present evidence which disproved that it violated the act, and to disprove that it was guilty of negligence.

In the case of Lawler v. Pepper Const. Co., 33 Ill App2d 188, 178 NE2d 687, it was stated at page 194: “The words ‘wilful violations’ in the Act have been construed to be synonymous with the words ‘knowing violations.’ ” (Gannon v. Chicago, M. St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785.) Since Thomas Hoist did not assemble the hoist and since there was no defect in the hoist as assembled by Archer Ironworks, there could be no “knowing violation” of the act by the defendant. Likewise, since the hoist itself was not defective, Thomas Hoist could not be held liable under a common law negligence theory. The unit that was left at the site was not shown to be defective. The brakes were new. They could be used to stop the hoist, as shown by tests made after the accident occurred. The failure of the defendant to put a Lilly Overwind on the hoist could not have constituted negligence on its part without a showing that the hoist company had knowledge that the hoist was being used, or even ready for use.

We hold that the evidence of the practice of the defendant, Thomas Hoist Company, in regard to the setting of the safety device was properly admitted to show that it did not wilfully violate the act and that it was not negligent.

The next point which the plaintiffs raise is that they were prevented from receiving a fair trial by the closing argument made by counsel for the defendant. The record reveals that the closing argument of the defendant contained repeated references to Sumner Sollitt Company. Plaintiffs contend that this was improper since the third-party defendant, Sumner Sollitt, had already received a directed verdict by the trial court.

Plaintiffs have cited several cases to support the proposition that a verdict unfairly obtained will not be permitted to stand. (Peters v. Chicago Rys. Co., 307 Ill 202, 138 NE 629; Hayes v. New York Cent. R. Co., 328 Ill App 631, 67 NE2d 215.) With these cases we are in full agreement. However, upon a close examination of the record, we do not feel that the plaintiffs were deprived of a fair trial by the closing argument made by counsel for defendant. Admittedly facts were included in this argument which tended to place the blame for the accident upon Sumner Sollitt. But the closing argument was merely one based upon evidence in the record. These facts were presented to the jury during the trial, and consequently a repetition of these was not so improper as to deprive plaintiffs of a fair trial. The jury was entitled to draw inferences from these facts to the effect that Thomas Hoist was not negligent, and if anyone was negligent, it was Sumner Sollitt. In an argument to the jury counsel should be allowed to present the evidence in a favorable light to his client. The purpose of a closing argument is to assist the jury in arriving at a verdict, with all facts presented fairly. Considerable latitude of expression on anything that is in evidence must be allowed counsel. It is within the function of an advocate to argue that the client is not liable, which was the real purport of the allegedly improper argument in the instant case. (Chicago City Ry. Co. v. Donnelly, 136 Ill App 204.) When arguing within the limits of admitted or uncontroverted facts, counsel should enjoy the greatest latitude consistent with decorum. (Franko v. Crosby, 278 Ill App 416.) Upon an examination of the record, we do not feel that defendant’s closing argument was improper, nor did it prevent plaintiffs from receiving a fair trial.

The plaintiffs next contend that counsel for the third-party defendant committed prejudicial error by bringing out, in the presence of the jury, that plaintiff Hopwood had prosecuted a claim for workmen’s compensation. The law is clear that such evidence is inadmissible against a plaintiff in either a negligence action or in a suit under the Scaffold Act. (Rylander v. Chicago Short Line Ry. Co., 17 Ill2d 618, 161 NE2d 812; Bryntesen v. Carroll Const. Co., 27 Ill2d 566, 190 NE2d 315.)

However, in the instant, case, no such evidence was offered or received. The only reference to any workmen’s compensation benefits received by Hopwood occurred upon the direct and cross-examination of one Dr. Rabin, the examining physician, pertaining to his testifying at a commission proceeding. Further, the facts reveal that plaintiff’s own attorney was the one who brought out the testimony of the doctor that he had examined Hopwood, and that the X-rays had been given to Hopwood’s attorney for the case before the commission. Having brought out this fact of workmen’s compensation, the plaintiffs cannot now complain that it was improper for counsel for the third-party defendant to cross-examine the doctor on his prior testimony upon direct examination.

The last contention of the plaintiffs is that they did not receive a fair trial since the court committed gross error in directing a verdict for the third-party defendant, Sumner Sollitt Company, after the jury had heard so much evidence about the culpability of said third-party defendant, and especially about its failure to notify the principal defendant to set the safety device. Since we have concluded from a review of the entire record that the plaintiffs received a fair trial as against the principal defendant, there is no reason to decide whether or not the court erred in directing a verdict for Sumner Sollitt. The plaintiffs sued Thomas Hoist Company and it was only against this party that they could recover. Any alleged error made as to the third-party defendant need not be discussed.

In view of the fact that we have affirmed the judgment in favor of the defendant Thomas Hoist Company, we do not have to consider the appeal of Thomas Hoist from the order dismissing Sumner Sollitt as a defendant, which was presented to this court only in the event that the verdict against the plaintiffs should be reversed.

Plaintiffs urge several other trial errors which they contend justify a new trial, or a reversal of the verdict. As we have previously mentioned, we have reviewed the entire record and find that plaintiffs received a fair trial. For the foregoing reasons, the verdict of the trial court is affirmed.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Appellee, v. Harry A. Smith, Jr., Appellant.
    Gen. No. 50,353.
    First District, Third Division.
    June 9, 1966.
    Rehearing denied June 30, 1966.

      Barry Goodman, Bernard B. Brody and Julius Lucius Echeles, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas Regan, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Harry Smith was indicted for attempted murder and after a non jury trial was found guilty and sentenced to a term of one to fifteen years in the penitentiary.

On the evening of March 28, 1963, Barbara Ehrenfeld was walking toward her home in Flossmoor, Illinois. Hearing footsteps behind her, she turned around and saw a person whom she later could describe only as a white man, 5 feet 10 or 11 inches tall and slightly built. He looped a leather belt around her neck and dragged her, half standing and half falling, backward for a half a block. The constriction of the belt prevented her from breathing. She tried to scream but was unable to. He continued to drag her until the belt broke. She then said “Please, don’t” and screamed. The man ran away. Part of a broken belt was found at the place of the attack. As a result of the assault Miss Ehrenfeld had leather bums on the front of her neck, bruises on her nose and a bump on the back of her head.

Miss Ehrenfeld testified that the defendant resembled her attacker but she could not identify him. The only direct evidence connecting the defendant with the crime was the belt, which he admitted was his, and a written confession signed by him. In the confession he described his preparations for the attack and the assault itself, and stated that the belt found at the place of the attack was the one he used.

The defendant raises two points on appeal: (1) his motion to suppress the confession should not have been denied, and (2) the evidence failed to show that he had the intent to commit murder.

After the commencement of the trial the defendant’s lawyer moved orally to suppress the confession on the grounds that: (1) the confession was not voluntary, (2) the defendant was held incommunicado for two days and was told that he would not be released if he did not make a statement and (3) the defendant’s constitutional rights were not explained to him. The judge reserved his ruling until a written motion was filed, and the trial proceeded. Whén the written motion was filed the judge heard evidence as to its voluntariness. The evidence is imprecise as to just when the defendant was first formally questioned about the assault on the prosecuting witness. He had been arrested at 3:15 a. m., March 30, 1963, by the police of Homewood, Illinois, and he was held thereafter in the Homewood jail. For some time after his arrest he was questioned about his activities immediately prior to his arrest. He was twice told he could make a telephone call but he declined to do so. At 5 a. m. he made a statement describing his prearrest activities. He was again questioned briefly around 8 a. m. At noon he was taken to the Flossmoor Police Station and placed in a lineup. From 1:00 p. m. to 5:00 p. m. he was questioned and gave statements pertaining to four offenses not related to this appeal. During the course of the interrogation the defendant was told several times that he could use the telephone and could have a lawyer. It appears that it was about 5:00 p. m. when the questioning turned to the present case. The defendant was informed that if he made a statement it could be used against him and that he would have to make it of his own free will. Chief of Police Clifford Pauling and Officer John Barton of Flossmoor came to the Homewood station and participated in the questioning. They left shortly after 6:00 p. m. They returned around 9:00 p. m. at which time the questioning was resumed and the statement taken. Officer Barton did the questioning in the presence of Pauling and Chief of Police Melvin Meyer and Elliott Marovich of Homewood. Barton advised the defendant of his constitutional rights and the defendant responded that he wanted to confess. Of the four officers present when the confession was taken only Chief Meyer testified at the hearing on admissibility. The State neither called the other witnesses nor did it show that it was not possible or feasible to produce them as witnesses.

After Meyer testified the State rested. No contrary evidence was offered. The defense argued that the motion should be sustained because all the witnesses to the confession had not testified. The court said that the motion alleged two grounds which might make the statement inadmissible: the allegations that the defendant had been held incommunicado for two days before he confessed and that he had been told that if he did not confess he would not be released. The court pointed out that the State had met each of these grounds, that its witnesses had testified that the statement was made voluntarily, that it was made the day of the defendant’s arrest and not after he had been held for two days, and that he had not been told that if he refused to confess he would not be released. The court said that if the defendant would present evidence to rebut the State’s case or if the defendant would particularize his charges, the court would require the State to produce additional witnesses — otherwise, further proceedings on the motion seemed pointless. The defendant did not testify and no evidence was produced in support of the motion, nor were the charges specified as the court had suggested. The motion was thereupon denied, the trial was resumed and the confession was received in evidence. The court’s ruling was correct. When a motion is made to suppress a confession on the ground that it is not voluntary, the burden of going forward with the evidence and the burden of proving that the confession is voluntary is on the State. Ill Rev Stats, ch 38, § 114-11 (d) (1963). The dual burdens, however, do not have to be met simultaneously. In People v. Fox, 319 Ill 606, 150 NE 347 (1926), the court stated:

“The order of proof is largely within the discretion of the trial judge. While the burden of showing that no improper inducement existed when the confession was made is upon the prosecution, it is not necessary for the prosecution to produce all its evidence before any evidence is produced on behalf of the accused. After the State has made a prima facie case, then the burden of going forward with the proof properly shifts to the accused. . . . After the accused has made his case, the prosecution may produce evidence in rebuttal to meet that offered against the competency of the confession. In order to meet its burden of showing the confession to be voluntary, the prosecution must show by its witnesses the circumstances under which the confession was made, with sufficient detail to enable the court to determine the question.”

This statement was quoted and approved in People v. Davis, 10 Ill2d 430, 140 NE2d 675 (1957), cert den 355 US 820.

It is true, as the defendant states, in Illinois the rule is that when there is evidence that a confession has been coerced, the confession should not be admitted in evidence until each material witness on the issue is either produced or his absence explained. People v. Bullocks, 23 Ill2d 515, 179 NE2d 628 (1962). Convictions are reversed if this rule is not followed. People v. Wright, 24 Ill2d 88, 180 NE2d 689 (1962); People v. Dale, 20 Ill2d 532, 171 NE2d 1 (1960). In the instant case, however, there was no evidence that the confession was made involuntarily. There was nothing but an allegation to that effect. The allegation that the defendant was held incommunicado for two days proved to be groundless in the face of proof that his confession was given on the first day of his arrest. The further allegation that he was told that he would not be released unless he made a statement was most general; the person who made the threat or those present when it was made were not identified or described. The time when the threat was made, whether at the arrest, the period of detention, or the interrogation, was not specified. The place where the threat was made, whether at the Flossmoor police station where the defendant was placed in a lineup or at the Homewood police station where he was questioned, was not designated. No reason was given why the circumstances in which the threat was made could not be clarified. Furthermore, the alleged trust was refuted by the State’s witnesses. The last allegation, that his constitutional rights were not explained to him, was not a basis for suppressing the confession (People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33 (1964), cert den 380 US 961; People v. Lewis, 32 Ill2d 391, 207 NE2d 65 (1965)) and, in any event, Chief Meyer testified that the defendant had been advised of his constitutional rights before he confessed.

At this posture of the case the State had met its burden of going forward and the court had heard enough evidence, absent contrary proof, to decide the issue. It would have been useless for the court to have heard further evidence rebutting charges that the defendant was unable or unwilling to support. Moreover, the motion which the court indulgently permitted to be filed after the trial had started was not made specific despite the invitation to do so and the court’s statement that if done the State would be compelled to produce all witnesses. The defendant argues that to require him to particularize the time or place of the threat, or to describe the person who made it or the persons present when it was made, as a condition precedent to the State’s duty to produce all the witnesses to the coercion, is to transform the State’s burden to prove a confession voluntary into a burden on the defendant to prove it involuntary. This argument confuses the burden of persuading the trial court that the confession was voluntary — a burden which the State bears always — and the burden of bringing forth evidence as to its being involuntary — a burden which shifts to the defendant after the State has made a prima facie case, and shifts back to the State when the defendant has produced evidence. People v. Davis, 10 Ill2d 430, 140 NE2d 675 (1957).

The competency of a confession allegedly procured through coercion is for the trial court to determine upon a preponderance of the evidence and a court of review will not disturb the finding of the trial court unless it is against the manifest weight of the evidence. People v. Joe, 31 Ill2d 220, 201 NE2d 416 (1964). In this case there is no reason to disturb the court’s ruling which was proper procedurally and correct evidentially.

The second point raised by the defendant (that since the evidence failed to show that he had an intent to commit murder, he could not be guilty of attempted murder) must be assayed in relation to his confession and the testimony of Barbara Ehrenfeld. The defendant did not testify at the trial and no witnesses were called in his behalf. The fact that he discontinued his attack when his victim said “Please, don’t” is offered as evidence of his lack of intent to murder. Excerpts from the confession — “. . . I . . . vaguely remember putting my belt around her head and starting to pull her back up the street, until such time as I heard her say ‘Please, don’t.’ At that time I suddenly remembered what I was doing, and I dropped her and the belt and started running back towards the car” — are offered as evidence of his lack of conscious awareness of the nature of his conduct and, hence, evidence of his lack of conscious objective or purpose.

Section 8-4 (a) of the Criminal Code of 1961 (Ill Rev Stats, ch 38, sec 8-4 (a) (1963)) provides that “a person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” An intent to kill or to do great bodily harm to the victim is an intent to commit the offense of murder. Ill Rev Stats, ch 38, sec 9-1 (a)(1) (1963). Section 4-4 of the Criminal Code defines “intent”:

“A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.”

As the Supreme Court noted in People v. Coolidge, 26 Ill 2d 533, 187 NE2d 694 (1963), intent is a state of mind and if it is not admitted, it can be shown only by surrounding circumstances; consequently, an intent to commit murder may be inferred from the character of the assault, the use of a deadly weapon and other circumstances. A sane man is presumed to intend all the natural and probable consequences of his own deliberate act; if one voluntarily and willfully does an act the direct and natural tendency of which is to destroy another’s life, the conclusion, in the absence of qualifying facts, is that the taking of the other person’s life was intended. People v. Brooks, 52 Ill App2d 473, 202 NE2d 265 (1964); People v. Coolidge, supra. The evidence was that the defendant placed a leather belt around Miss Ehrenf eld’s neck and used it to drag her backwards; that the belt prevented her from breathing; and that Miss Ehrenf eld was released only by the breaking of the belt. This evidence makes clear that the direct and natural tendency of the defendant’s act would be to destroy his victim’s life, and supports the conclusion that he intended to take her life. Miss Ehrenf eld would have been strangled if the belt had not broken. That the attack ceased when the breaking of the belt allowed Miss Ehrenf eld to say “Please, don’t” and to begin screaming is evidence that the intent to murder was frustrated rather than evidence that the defendant lacked this intent.

The fragments quoted from the confession as evidence of his lack of intent, when placed in context, do not indicate that the defendant was unaware of what he was doing:

“I turned the [automobile] lights off but left the engine running; the radio was playing. I got out of the car and headed east on Hawthorne Lane and turned into a driveway and concealed myself in [a] garage, assuming the girl would come down this street. The garage had a recess [ed] entrance in which I stood. I saw her coming and as she passed I followed her down the street. As she approached the dormer and I said ‘Hi.’ At this time I was pretty close to her and vaguely remember putting my belt around her head and starting to pull her back up the street, until such time as I heard her say ‘Please don’t.’ At that time I suddenly remembered what I was doing, and I dropped her and the belt and started running back towards the car. I got in the car, turned the corner going north and then turned on my headlights.”

The defendant parked his automobile with the motor running, so that he could leave quickly, but left its headlights off, so that the parked auto would not attract attention. He went where he thought his victim would pass by; he found a place where he would be concealed as she passed by, so that he could attack from the rear. To prevent identification of his auto or license number as he fled, he did not turn on the headlights till he had driven some distance.

The defendant’s confession is not a document drafted by a lawyer; the language used by the defendant, whose choice of words no doubt was affected by his emotions and his education, cannot be subjected to the same type of construction as the language of a commercial contract. If there are inconsistencies between the defendant’s description of his careful preparations for the attack and his description of the attack itself, the trial court, as trier of fact determining the credibility of the confession, could accept all, part or none of the confession. People v. DiGerlando, 30 Ill2d 544, 198 NE2d 503 (1964). We find no error in the court’s conclusion that the evidence established the defendant’s guilt beyond a reasonable doubt.

The judgment of the trial court is affirmed.

Affirmed.

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


text:
    Jamal Haleem, et al., Plaintiffs-Appellants, v. Marcelle Onate, Defendant-Appellee.
    Gen. No. 50,404.
    First District, Third Division.
    June 9, 1966.

      Gomberg & Missner, of Chicago (Sidney D. Missner and John M. Murtaugh, of counsel), for appellants.
    Orner & Wasserman, of Chicago (Norton Wasserman, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The sole question raised by this appeal is the adequacy of damages awarded to three plaintiffs for personal injuries sustained in a motor vehicle collision. The plaintiffs rely chiefly on the fact that the damages awarded to them by the jury amount to less than their expenses for medical treatment and lost earnings.

The accident occurred on June 4, 1962, when the defendant’s automobile, going ten miles an hour or less, struck the rear of the plaintiffs’ vehicle which was stopped in a line of traffic on 63rd Street in Chicago. The impact appears to have been light: there was no damage to the rear end of the plaintiffs’ car and the defendant’s automobile sustained only a broken head lamp; the plaintiffs’ car was pushed a few feet forward into the auto ahead of them.

The plaintiff Haleem, the driver of the car, claimed that he was rendered unconscious and that his neck, shoulder, chest and back were injured. He testified that he was hospitalized two days, that he was out of work over a week and had been unable to work overtime since the collision and that, at the time of the trial in 1964, he still suffered from headaches and pain in his left arm. At the hospital his doctor believed that he had suffered a mild concussion and diagnosed his other injuries as contusions of the cervical and thoracic areas of the spine. The doctor considered these injuries to be nonpermanent. Haleem received a $47 bill from his doctor, a $139.40 hospital bill and claimed loss of earnings in the sum of $73.60. The jury awarded him $47.

The second plaintiff, Shalabi, testified that his neck, back and knee were injured, that he spent a week in the hospital and recuperated at home a second week, that he missed two weeks of work and that he had headaches for a year after the accident. Upon arriving at the hospital he complained of pain in his neck, left knee, ribs, back and of headache. His injuries were diagnosed as a mild concussion, a black and blue mark on his left knee and contusions of the thoracic and lumbar regions of his back. His physician did not believe that these injuries were permanent. Shalabi had a $99 doctor’s bill, a $232.25 hospital bill and claimed lost wages amounting to $151.20. The verdict in his favor was for $250.

Halley, the third plaintiff, sustained a laceration of his forehead which required six sutures and he complained of shoulder pains. He testified that he suffered headaches and dizziness for a month afterwards and that his back and neck had hurt for three or four months. He was in the hospital for a week, left the hospital in a wheelchair but then got on a bus and went home. When his doctor last saw him a short time after he left the hospital he was considered to be on the road to recovery. Halley received a doctor’s bill of $89 and a hospital bill of $242.25. The jury awarded him $332.

This court has frequently expressed its reluctance to interfere with the discretion of the jury as to the amount of damages to be awarded in personal litigation. This is particularly true in a case such as here where the trial was free of error. No complaint is made as to the instructions given to the jury on the measure of damages. There is no claim that evidence was improperly admitted or rejected. There is no indication that the verdicts were influenced by prejudice. Under such circumstances we have held that the amount of damages awarded by the jury will not be disturbed unless it is palpably inadequate or unless it is clear that the jury disregarded a proven element of damages. Ward v. Chicago Transit Authority, 52 Ill App2d 172, 201 NE2d 750 (1964); Corsello v. Warren, 51 Ill App2d 367, 201 NE2d 155 (1964); Giddings v. Wyman, 32 Ill App2d 220, 177 NE2d 641 (1961).

To determine whether an award is grossly unfair or the result of a clear oversight by the jury necessarily requires a review of all of the testimony surrounding the claimed items of damage. The mathematical computation of bills received and the alleged loss of earnings represent only a part of the total evidence. Therefore, we do not accept the plaintiffs’ contention that the sum of the claimed special damages automatically constitutes a minimum level of recovery which is binding upon both the jury and a court of review. Special damages often may be a useful measure; they need not be an incontestable basis in the determination of a proper award.

There are other evidentiary matters to be considered. The testimony surrounding the claimed injuries may have been impeached or it may be contradictory or unreliable. There may be evidence which carries an implication that the injuries have been exaggerated or even feigned or that the medical treatment was either unnecessary or prolonged. There may be evidence which makes doubtful the necessity of the time alleged to have been missed from work. All of these and like factors must be weighed. And if there appears to be evidence suggesting a genuine conflict as to the legitimacy of the expenses incurred, then the verdict of the jury should not be disturbed on review. The jury has the function of determining the credibility of witnesses and the weight to be given their testimony. It is usually instructed to consider all of the evidence in the light of its own experience in the affairs of life. This prerogative should not be withdrawn from the jury if there is any evidence tending to support its conclusion as to the amount of damages actually sustained. Thus this court has said that it will affirm verdicts, however low, which are sustained by evidence or the absence of particular evidence. Daly v. Vinci, 51 Ill App2d 372, at 386, 201 NE2d 200, at 207 (1964). In Jeffrey v. Chicago Transit Authority, 37 Ill App2d 327, 185 NE2d 384 (1962), a rear-end collision case, we affirmed a verdict of no damages where the plaintiffs’ testimony was impeached and self-contradictory and the testimony of the treating physician could have been deemed unworthy of belief.

The plaintiffs cite several cases where Hlinois courts have awarded plaintiffs new trials on the issue of damages because the verdicts of the jury amounted to less than the claimed out-of-pocket expenses. We have read these decisions and find that in each instance there was neither conflict nor dispute in the evidence surrounding the injuries or special damage claims. These cases are not applicable here.

A survey of the testimony in this case reveals that the jury had ample reason to question the injury and the expense claims of the three plaintiffs. Despite the physical evidence indicating a light impact between the two cars, the plaintiff Haleem claimed he was knocked unconscious for two or three minutes. Yet there is no evidence that he sustained any bump or bruise in the head region and shortly thereafter he was able to walk unaided to a police station. Haleem claimed he suffered dizziness for 13 months but his own doctor testified that his concussion was only mild and not as strong a blow as the type football players get. Likewise this plaintiff complained that his headaches and pains persisted to the time of trial and that he was still unable to use his left arm. This testimony could have been viewed with suspicion because his doctor, at the time he was examined and treated, believed his injuries were not permanent and that continued treatment would restore his normal muscle function. Haleem further testified that after he left the hospital he remained at home in bed for three days. His employment records, however, showed that he worked the three days following his release from the hospital. He also claimed that he was unable to do overtime work for a year because of these injuries, yet there was proof that even during the two week period subsequent to the accident he worked more than six hours of overtime. The lost earnings claim of this plaintiff was certainly contradicted by the record.

The testimony of the other plaintiffs was also suspect. Shalabi claimed that he was in pain for several months after the accident and that he had headaches for a year. His own physician testified that Shalabi’s concussion was mild and that he had improved by the time he left the hospital and should have had a complete recovery following normal treatment. His two-week absence from work might have seemed unnecessary in view of the fact that he was able to work seven hours overtime in the first week of his return to work. Malley claimed he had stiffness and pains in his neck for four months. His doctor did not believe that he had these pains; he testified that the hospital records did not show that Halley complained of neck pains. Shalabi and Halley testified that they stayed a week in the hospital; the doctor testified that both left the hospital on the fourth day after the occurrence. There clearly was evidence from which the jury could reasonably infer that the injury claims of these plaintiffs were exaggerated.

There was also evidence indicating that the medical treatment received may have been unwarranted. The plaintiffs were given blood counts, urinalyses, electrocardiograms and hemoglobin treatments although no explanation was made connecting these tests and treatments with the diagnosed injuries. Extensive X rays were taken of parts of the plaintiffs’ bodies which were in no way involved in the accident. In addition to the other drugs given the plaintiffs, the doctor administered a “special formula” of his own which admittedly duplicated the effect of the other drugs. Further, the jury could have taken into account the fact that each of the bills that the plaintiffs received from their doctor included a $25 charge for writing a report to the plaintiffs’ attorney. The cost of trial preparation is not a proper element of special damages. Then too the jury may have considered the fact that the doctor, who treated all three plaintiffs, had a controlling ownership in the hospital into which they were admitted. He stood to personally profit by the treatment given in the hospital and the duration of the plaintiffs’ stay therein. These facts justified the jury’s scrutiny of the necessity and reasonableness of the plaintiffs’ medical expenses.

We conclude that there was enough evidence in the record to establish a genuine conflict as to the nature and extent of the plaintiffs’ injuries and the validity of their special damage claims. The credibility of the plaintiffs was shaken and their evidence sharply disputed. The verdicts under these circumstances were not palpably inadequate and it has not been convincingly shown that the jury disregarded a proven element of damage.

The judgments of the court are affirmed.

Affirmed.

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


author: JUSTICE McCORMICK.

text:
    Thomas Paulson, d/b/a Paulson Plastering Service, Plaintiff-Appellee, v. Joseph Aides, Defendant-Appellant.
    Gen. Nos. M-50,270, M-50,271. (Abstract of Decision.)
    First District, Fourth Division
    June 10, 1966.
    John C. Gekas, of Chicago, for appellant; no brief filed for appellee.
   Opinion by Not to be published in full.

JUSTICE McCORMICK.


author: MR. JUSTICE MCCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Prowse, Defendant-Appellant.
    Gen. No. 49,973.
    First District, Fourth Division.
    June 10, 1966.
    James J. McPolin, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and George Saméis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

CHARGE: Theft.

DEFENSE AT TRIAL: Does not appear in the record.

JUDGMENT: The defendant was tried before a jury. The jury returned a verdict finding him guilty and the court sentenced him to one to ten years.

POINTS RAISED ON APPEAL:

(1) Defendant was denied his right to a speedy trial.

(2) Defendant did not waive his right to counsel.

(3) Defendant was denied his right to effective counsel.

(4) Defendant was denied constitutional due process.

STATEMENT OF FACTS: The following facts appear in the record. On October 30, 1963, the defendant was arrested, and after a preliminary hearing on November 12, 1963, was held over for the grand jury which voted a true bill on December 23,1963.

Defendant was arraigned on December 31, 1963, and the Public Defender was appointed to represent him. Defendant’s plea of not guilty was entered and the court continued the matter to January 15, 1964, on which date defendant requested a Bar Association lawyer instead of the Public Defender. The court advised defendant that if his requests were granted the delay of the trial would be charged to the defendant and the four-months statutory period would not start to run until the next continued date. Defendant acknowledged that he understood, and the case was continued to February 17, 1964. On February 17 Thomas P. Cernek was appointed to represent the defendant, and filed his appearance. The case was again continued to March 12, 1964, on order of the court, and on that date the defendant himself presented a motion to dismiss, which Attorney Cernek dedined to present on the ground he did not “understand the rationale” of the motion. The motion was denied and Mr. Cernek answered ready for the defendant and demanded trial. On motion of the State the case was continued to April 20, 1964; the case was advanced to March 17, 1964, when Mr. Cernek and Eloise Johnstone [who represented in the motion that she, as well as Cernek, had been appointed to defend] moved to withdraw as defendant’s attorneys. The grounds for the motion were that the attorneys had thoroughly investigated the facts and circumstances and researched the law, and had numerous conferences with the defendant, advising him of his rights, the defenses available to him and the law involved, and all matters relating to his trial; “that by reason of defendant’s refusal either to cooperate with counsel, or to accept the advice of counsel, it will be impossible for present counsel to represent defendant in the within matter.” It was also stated by Attorneys Cernek and Johnstone that they had received a letter from the defendant asking that they withdraw as his attorneys. The following colloquy took place between the court and the defendant:

The Court: You understand that if they withdraw, I will have to reappoint the Public Defender, and the Bar Association will not appoint other lawyers?
Defendant: I can’t ask for a specific attorney?
The Court: No, you cannot.
Defendant: Well, I will either go with a Public Defender or defend myself.

Leave was granted to Attorneys Cernek and Johnstone to withdraw, and the Public Defender was again appointed to represent defendant.

On April 20, 1964, the defendant stated to the court that he could not go to trial with Mr. Kelly of the Pub-lie Defender’s office and that he wanted another Public Defender appointed to represent him. The defendant then asked for a jury trial, and on the motion of the State and over the objection of the defendant, the case was continued to May 20,1964. On May 20 the defendant again objected to the particular Public Defender assigned to him and requested another Public Defender or another attorney. After the court had stated that it would not appoint another attorney but that the Public Defender’s office would be asked to send another Public Defender, the following exchange took place:

Defendant: Well, is he here now ?
The Court: No, he is not here now, and I am not going to have them sent up so you can look them over to decide whether or not they are satisfactory.
Defendant: Well, I’m ready to go trial. I don’t want to have any more continuances.

Both the People and the defendant declared themselves ready for trial and the defendant wanted a Public Defender other than Mr. Kelly. The court agreed to talk to the Public Defender’s office and stated that if that office would not assign another assistant to the case the court would ask Mr. Kelly to sit with the defendant during the trial and give him any advice he might require. On May 25 the case was again called for trial and the defendant answered ready. The trial commenced and it was arranged that Mr. Kelly should remain in the court room and be available if needed. Thereafter the defendant conducted his own defense.

OPINION:

(1) The defendant was tried on May 25, 1964. He was arrested on October 30, 1963; the indictment was returned on December 23, 1963; and he was arraigned on December 31, 1963, at which time the Public Defender was appointed to represent defendant. On January 15, 1964, the defendant caused a delay to February 17, 1964, by objecting to the Public Defender and demanding an attorney from the Chicago Bar Association. The case was continued to March 12. Under the circumstances the delay was caused by the defendant. In People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323, affd, 34 Ill 2d 179, 214 NE2d 765, the court said: “Release is afforded only if delay is not occasioned by the defendant and, wisely we think, the statute does not concern itself with the reasons therefor.” The defendant’s counsel argues that defendant’s trial was delayed by his efforts to obtain adequate counsel. There is nothing in the record which would indicate that the various counsel appointed for the defendant were not adequate and competent. The defendant himself was responsible for any delay in his trial.

(2) The court bent over backwards as far as the defendant was concerned and the defendant, having full knowledge of all the circumstances and taking an autocratic view, waived counsel, as he had a right to do. People v. Saxton, 400 Ill 257, 79 NE2d 601. In People v. Gray, 33 Ill2d 349, 211 NE2d 369, the court held that where a defendant had permitted an appointed counsel other than a Public Defender to withdraw, he had no right to a second lawyer other than the Public Defender. He must then accept a competent attorney selected by the court, whether Public Defender or otherwise; the choice is the court’s and not the defendant’s.

(3) The defendant here argues that he refused to accept counsel openly antagonistic to him. A better statement would be that the defendant was openly antagonistic to all counsel appointed to defend him. From the record it appears that the defendant was of the opinion that a record made at the pretrial hearings was essential to his case, and that he requested both the Public Defender and his Bar Association attorney to obtain the record. The court advised the defendant that if he would indicate that any witness who testified there in a manner substantially contradictory to any testimony the witness may have given in the preliminary hearing, the court would see that the records were made available to him. In People v. Morris, 30 Ill2d 406, 197 NE2d 433, it was held that the State had no constitutional duty to provide indigent persons with a free transcript of the preliminary hearing. In the instant case the defendant indicated to the court that he wished to recall a certain witness. The court asked him what the witness had testified to at the preliminary hearing that was different from his testimony on the stand, and the defendant failed to point it out. Consequently, the court properly ruled that he was not entitled to the record of the preliminary hearing.

(4) There is nothing in the record to indicate that the defendant was denied due process of law, and we think this entire matter is covered in the previous discussion in the opinion.

In this court the abstract of record and a brief were filed by an attorney appointed to handle this appeal. The defendant apparently became dissatisfied with that attorney and filed a reply brief pro se. We have carefully examined that brief and find nothing therein to change our opinion in the case.

We have nothing before us concerning the testimony presented in court with reference to the alleged crime. We are asked to reverse solely because of the points mentioned.

DECISION: The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

DRUCKER, P. J. and ENGLISH, J., concur.

       Ill Rev Stats 1965, eh 38, § 16-1.