author: MR. JUSTICE DEMPSEY

text:
    William Coursey, Plaintiff-Appellant, v. Board of Fire and Police Commissioners of the Village of Skokie, Illinois, and Kenneth B. Chamberlain, Chief of Police of the Village of Skokie Police Department, Defendants-Appellees.
    Gen. No. 50,682.
    First District, Third Division.
    November 30, 1967.

      Gene J. Shapiro and Edward G. Raszus, of Chicago (Gene J. Shapiro, of counsel), for appellant.
    John E. Toomey and Lee M. Burkey, of Chicago, amici curiae.
    Marvin J. Glink, of Chicago, for appellees.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

William Coursey, a policeman of the Village of Skokie, was charged with several violations of its police department’s rules. After a hearing before the Board of Fire and Police Commissioners he was discharged from service. He filed suit for administrative review. The trial court affirmed the board’s decision and he has appealed.

The charges against Coursey were based upon his conduct in regard to certain juvenile violators of the village’s curfew ordinance, his failure to report the incident fully and his refusal, during the subsequent investigation, to take a polygraph examination. It is his position that the findings of the board were arbitrary, capricious and contrary to the manifest weight of the evidence.

On the night of April 25th and the early morning of April 26th, 1964, Coursey was on duty and assigned a specific beat to patrol in his squad car. Shortly after midnight, while making his rounds, he stopped at a bowling alley to check for violations of the curfew. The manager of the alley told him that a young boy was alone in a car in the parking lot. Coursey went to the car to question him. The boy, 13 years old, told him he was waiting in the family car for his sister and her girl friend. Coursey took the boy inside the bowling alley while he looked for other violators of the curfew. About half an hour after midnight an automobile with two teenage couples in it entered the parking lot. The boy said he thought the auto was the one his sister was in and that she had been “out whoring around.” He also used other vulgarisms. Coursey asked if one of the occupants of the auto was the boy’s sister and Cathy, 17 years old, said that she was. She told Coursey that her brother had been left behind because he had been causing trouble and using foul language. Coursey told them they were in violation of the curfew, asked if they had identification cards and wrote down their names, addresses, ages and telephone numbers. He reprimanded them and told the boys to go home. He offered to take the other girl, Helen, home and said he would explain to her parents why she was late coming in. Helen said she had come with Cathy and would leave with her. Coursey then said he would follow to make sure she arrived without hindrance. He escorted the car to Helen’s home in Morton Grove without having requested permission to leave Skokie. At Helen’s home he again said that he wanted to speak with her parents but she told him that her parents were in bed. He then told her to tell Cathy to meet him at the parking lot of the Niles Township High School so that he could talk to her about the language her brother was using.

The evidence as to what transpired at the high school parking lot is conflicting. Coursey’s testimony before the board follows: Cathy and her brother met him at the parking lot. He called the boy over to the squad car and asked him about the vulgar words he was using. After talking about five minutes, he told the boy to tell Cathy to come over to the car. He questioned her about the boy’s language and suggested that she tell her mother about it. He talked to her for five to seven minutes and then, about 1:45 a. m., she and her brother drove away. He followed their car for a short distance and continued his patrol when they turned off.

Cathy and her brother related a very different version of what took place. The boy testified that Coursey called him into the squad car, asked him why he called the girls the names he did and if he knew the meaning of the words. He was then told to send his sister over to the squad car. Cathy stated that her brother came to their car and said Coursey wanted to talk to her. She entered the squad car and Coursey asked where her brother learned that language. He asked how broadminded she was and if she “ever had it.” He asked her to conduct an experiment to help her brother: to expose herself to him, to let him touch her and to keep a record of their reactions. Shortly before the conversation ended, Cathy asked what time it was and was told it was 2:00 a. m. When she returned to her car, she drove away and Coursey followed. Several blocks later he signalled for her to stop; she did so and then entered the patrol car. He told her to start the experiment immediately, to unfasten her bra and let her brother touch her; he said, “Well, let me help you undo your bra.” She refused, went back to her car and sped away. Coursey followed for a short time and then turned back.

When Coursey finished his eight-hour shift at 7:00 a. m., he returned to the station house and filed an “activity report.” The report did not show that he had detained and questioned violators of the curfew or that he had left his beat or the village.

The following day, after completing his tour of duty, Coursey told his supervisor he was worried about an incident which happened the night before; that he had ejected some teenagers from the parking lot of a bowling alley and one girl said she would make trouble for him. Coursey said that was all that happened and that the manager of the alley was there at the time. He was told not to worry. He did not disclose that he had left his beat and that he had stopped the teenagers again in the high school parking lot.

Cathy, her brother and their mother made a complaint to the state’s attorney and a police investigation began. Coursey was questioned by the state’s attorney and a police detective and, according to the latter, did not attempt to withhold information from them. Shortly thereafter the chief of police sent Coursey a written order to submit to a polygraph examination. Coursey did not appear for the test. Soon afterward the following charges were placed against him:

(1) failure to obey the order directing him to take the polygraph examination;

(2) insubordination in failing to comply with the order;

(3) professional misconduct on the evening of April 25th tending to bring the police department into disrepute;

(4) leaving his assigned beat and duty without being relieved, and

(5) failing to properly complete his activity report for his period of duty from 11:00 p. m. on April 25th to 7:00 a. m., April 26th.

The Board of Fire and Police Commissioners found him guilty of all except the third charge; no decision was rendered on that charge because of the board’s findings on the other four charges, but the board stated that his conduct on the night in question was unprofessional.

The statute under which the board acted provides, in relevant part, that . . no officer ... of the . . . police department . . . shall be removed or discharged except for cause. . . .” Ill Rev Stats, c 24, § 10-2-17 (1963). Although “cause” is not defined by the statute, the courts have construed it to be some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position. Murphy v. Houston, 250 Ill App 385 (1928). The rule to be applied in determining whether the appellant is correct in his contention that the board’s findings against him must be reversed is that a decision of an administrative agency is not to be set aside unless it is against the manifest weight of the evidence. Avent v. Police Board of City of Chicago, 49 Ill App2d 228, 199 NE2d 637 (1964).

The board’s finding that Coursey was guilty of leaving his assigned beat and the village limits of Skokie without authorization is unexceptionable, for he admitted that he went to Morton Grove and that he did not have permission to do so. He explained that he felt it was his job to see that the teenagers got home. However, he did not explain why, having escorted Helen to her home outside of Skokie, he did not also accompany Cathy and her brother to their home which, too, was beyond his jurisdiction. Nor did he offer justification for his failure to obtain permission to leave his beat or his failure to radio the police station that he was departing from his assigned patrol. The gravity of his act is intensified by the fact that less than six months previously he had been reprimanded for a similar offense, advised that at no time was he to leave his beat unless authorized and warned that further conduct of this nature would result in more stern disciplinary action. Although there may be circumstances which would require a police officer to leave his beat and would prevent Ms requesting permission or giving immediate notice to Ms superiors, they were not present in the situation confronting Coursey, on the evening of April 25th. The situation did not call for speedy and uninterrupted action from him; there was no emergency and he was not in pursuit of a known or suspected criminal. By leaving his beat and going out of the village without permission, Coursey disabled himself from responding quickly to whatever jeopardy might threaten the lives and property of those within his jurisdiction, and seriously weakened the plan of community protection established by his superiors. This conduct was detrimental to the discipline and efficiency of the police department, and the board’s decision that this was cause for his discharge was not improper. Hammers v. Board of Fire and Police Com’rs, 10 Ill App2d 218, 134 NE2d 647 (1956).

The charge that Coursey failed to complete the activity report was based upon his failure to record his prolonged detention of Cathy and her brother and the circumstances under which he abandoned his beat. His explanation for not including these items in his report was that he did not think they were necessary. His report showed only that he made a “premises examination” at the bowling alley, one other “premises examination,” and spent the balance of his period of duty — seven and a half hours— on patrol. The report was incomplete and the testimony indicated that Coursey’s familiarity with departmental requirements should have apprised him of this. His immediate supervisor stated that the interrogation of the adolescents for a period of two hours should have been noted on the activity report. Another superior testified that the detention of juveniles in excess of an hour also should have been noted on the report. He testified further that all the Skokie police officers were advised of the importance of keeping a log of activities and of accounting for their duty time, and that he had discussed with Coursey the procedure to be used in filling out the report. Coursey was familiar with the function of the report: to provide the administrators of the police department with the information necessary for an evaluation of the effectiveness of current practices and an assessment of the performance of each officer. His failure to include the names and addresses of the detained juveniles might not by itself have rendered the report incomplete, but his total suppression of the events occurring after his initial questioning of them made it inaccurate and misleading. The report not only did not disclose that a significant part of his time was taken up in questioning the teenagers ; it also implied that during this time he was actively patrolling his beat. That Coursey violated a departmental rule and that the violation was serious was established by the evidence.

The board’s finding that Coursey was guilty of insubordination in not taking the polygraph examination has been argued more extensively than all other points. Interest engendered by this finding brought requests for filing of amici curiae briefs; the requests were granted and briefs have been accepted on both sides of the issue. Epitomized, the arguments made by Coursey and in his behalf are these:

He had the right not to take the examination; therefore, his refusal to take it was not insubordination and should not be regarded as an admission of guilt.
Despite this, the invocation of his right colored the board’s thinking on the other charges against him and was the real reason for the severe penalty imposed on him.
The order of the chief of police was unauthorized by State statute, village ordinance or police department rule.
It was unnecessary because he had cooperated with his interrogators and had answered all questions put to him.
It was unreasonable because a polygraph examination is fallible and without probative value.
It was useless because the chief of police testified that the outcome would not have been used for or against him and the board conceded it would not have considered the result if the test had been taken.
It was unjust because willingness or unwillingness to take a polygraph examination is inadmissible in civil, criminal or administrative proceedings.

Illinois courts have held that disobedience to a proper order given by a superior officer is cause for discharge (Zinser v. Board of Fire and Police Com’rs, 28 Ill App2d 435, 172 NE2d 33 (1961)) and that an officer’s refusal to sign an immunity waiver before testifying before a grand jury is ground for dismissal (Drury v. Hurley, 339 Ill App 33, 402 Ill 243, 88 NE2d 728 (1949), cert den 339 US 983; Moretti v. Civil Service Board, 2 Ill App 2d 89, 118 NE2d 615 (1954)), but there has been no Illinois decision as to whether a police officer’s refusal to submit to a polygraph examination is cause for his discharge. There are decisions outside of Illinois which hold that it is and this also is the opinion of the Attorney General of Illinois: Fichera v. State Personnel Board, 217 Cal App2d 613, 32 Cal Rep 159 (1963); Frazee v. Civil Service Board, 170 Cal App2d 333, 338 P2d 943 (1959); Illinois Attorney General’s Report and Opinions, No. 346 (1962). On the other hand, Stape v. Civil Service Commission, 404 Pa 354, 172 A2d 161 (1961) is to the contrary. Also, in administrative proceedings, the National Labor Board and the Board of Review of the Labor Department of Illinois have rejected an unfavorable inference of guilt from failure to take a lie test. Lone Star Co., 149 NLRB, No. 67, 1964, 57 LRRM 1365; Wieboldt Stores, Inc., 65-BRD-111; Montgomery Ward & Co., 65-BRD-112; Monogram Models, Inc., 65-BRD-113.

No question of the constitutional privilege against coerced self-incrimination is involved in this case. Coursey did not refuse to submit to the test on the ground that it might have resulted in his making self-incriminating statements which could be used against him in a subsequent criminal proceeding. Nor did the board derive any imputation of guilt from his refusal — for it made no finding concerning his alleged unprofessional conduct in relation to the juveniles. The precise issues, then, are whether the chief of police had authority to order him to take the examination and whether the order was reasonable and, if so, whether his refusal to follow the order was a proper reason for his discharge.

The corporate authorities of each municipality may prescribe the duties and powers of all police officers. Ill Rev Stats, c 24, § 11-1-2 (1963). Although no rule of the Skokie Police Department specifically covers polygraph examinations, one of the department’s rules is that the officer assigned to investigate a complaint by a citizen against a member of the department:

. . shall conduct a thorough and accurate investigation. Such investigation shall include formal statements from all parties concerned, when necessary and pertinent, . . . and all other information bearing on the matter.”

The authority of the police chief to order an officer to take a polygraph examination, and to determine when the order should be given, can be derived by implication from this rule. But more important than this, the authority of a police chief under proper circumstances to issue such an order, like any other sound and reasonable order for the good of the service, is inherent in his position.

There may be circumstances wherein a superior officer’s order that a subordinate submit to a polygraph test would be arbitrary, but here, with conflict between the juveniles’ accusations and Coursey’s denials, the order was reasonable. What is more, it would not have been useless. The case was of public interest (see Coursey v. Greater Niles Tp. Pub. Co., 82 Ill App2d 76, 227 NE2d 164 (1967)) and the citizens of Skokie were entitled to assurance that the village’s police force was above reproach. The chief of police was confronted with a situation where public confidence in his department might be undermined by the accusations made against one of its members. The chief would naturally want his subordinate exonerated and his department vindicated. A successful lie test by the truth-asserting officer would be a long step toward these ends — for in the public mind the result of such a test is often conclusive. In a situation like this, arranging for a polygraph examination and requesting the officer to take it was neither unreasonable nor useless. The chief would expect the officer to pass the test, and publication of the anticipated result would, from the public’s view, clear the officer and restore confidence in the department.

The statutes prohibiting a court from requiring or suggesting that the defendant in a criminal trial or the plaintiff or defendant in a civil trial submit to a “polygraphic detection deception test” apply neither in terms nor in principle to a proceeding before a Board of Fire and Police Commissioners. (Ill Rev Stats, c 38, § 158-1 (1961); Ill Rev Stats, c 110, § 54.1 (1963).) The board is required to investigate the charges of misconduct placed against an officer, and in its investigation it has power to secure by its subpoena the attendance and testimony of witnesses. Ill Rev Stats, c 24, § 10-2-17 (1963). The board’s assessment of the officer’s fitness for the responsibilities of police duty should be based upon all the information reasonably related to his fitness, and his willingness or unwillingness to submit to a polygraph test when accused or suspected of a crime, or of conduct detrimental to the police force, is certainly a factor to be weighed.

Effective and efficient operation of a police department requires that allegations of police misconduct be thoroughly investigated. The polygraph machine can be a useful investigative tool when the test is skillfully prepared and is administered and interpreted by a qualified person; while it is not accurate to the degree that absolute judgments can be made as to the veracity of the person tested (People v. Triplett, 37 Ill2d 234, 226 NE2d 30 (1967)) the results are often reliable within recognized limits. Thus, for example, the results of a polygraph examination may be of help in narrowing the field of persons suspected of an offense or may assist in a determination whether to commence disciplinary action when, as here, there is an accusation against a police officer which he insists is untrue. Be that as it may, the issue is not the accuracy of a polygraph examination, but Coursey’s failure to take an examination.

The chief of police did not exceed his authority in ordering Coursey to take the examination and his authority was not arbitrarily exercised. As a private individual Coursey did not have to submit to the examination, but as a policeman he did not have the privilege of refusing; having refused, he forfeited any right he had to be retained on the police force because his refusal was in conflict with his obligation as a policeman to obey the order of his commanding officer. His refusal impeded the investigation of a serious charge affecting the whole police department as well as himself. To sustain his action would be to vitiate the systematic authority and discipline upon which proper enforcement of the law is dependent. The evidence was sufficient to sustain all the factual findings made by the board. And it therefore became the board’s responsibility to evaluate the gravity of the proved violations and to determine what disciplinary sanction should be imposed for the infractions of the police department regulations and the noncompliance with the instruction of the department’s commanding officer. The decision to remove Coursey from the force was not capricious; it was reasonably related to his misconduct, to the discipline and efficiency of the department and to the maintenance of public confidence in the department.

The judgment of the Circuit Court upholding the decision of the Board of Fire and Police Commissioners of the Village of Skokie is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    Adolph Roth, et al., Plaintiffs-Appellees, v. William Nauman, Defendant-Appellant.
    Gen. No. 51,459.
    First District, Third Division.
    November 30, 1967.

      Joseph A. Bailey and Jerome H. Torshen, of Chicago, for appellant.
    Nathan Shavin and Seymour Scheffres, of Chicago (Edward Wolfe, of counsel), for appellees.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal by defendant from a directed verdict and judgment thereon in favor of the plaintiffs for personal injuries sustained in an automobile accident.

Defendant contends on appeal that the court erred in finding defendant guilty of negligence and plaintiffs free from contributory negligence as a matter of law; that, as a matter of law, defendant was not negligent, and that, as a matter of law, plaintiff Roth was guilty of contributory negligence.

The accident occurred at approximately 5:30 p. m. on June 3, 1959, in the intersection of Cicero and Caldwell Avenues in Chicago. The evidence showed that it was a clear day, the streets were dry and the visibility was good.

Cicero Avenue, at the intersection with Caldwell, has three lanes of traffic in each direction. At the time of the accident northbound traffic was heavy and southbound traffic was light. The speed limit on Cicero at that point is 30 miles per hour.

Plaintiff Roth testified that he was driving a 1954 Oldsmobile in a southerly direction on Cicero in the innermost (farthest easterly) lane. When he reached the intersection here involved he stopped to make a left turn onto Caldwell. It is not clear from the evidence whether he stopped at the north end of the intersection or at the center of Caldwell. He waited there approximately thirty seconds until an opening appeared in the innermost northbound lane. That opening was about fifteen feet wide. Roth started for the opening. A car in that lane stopped and waved him through, so he inched into that space. In the next lane a car stopped and also waved him through. The cars that stopped for him did so almost simultaneously. At that time he could not see what was in the third lane so he inched his way along into that lane where he was hit by defendant’s automobile. Roth stated that when he first saw defendant’s automobile coming towards him it was about fifteen feet away and he estimated defendant’s speed to be between 25 and 30 miles an hour. Roth slammed on his brakes and stayed right there and was hit. He saw no cars moving in defendant’s lane from the time he reached the intersection until he saw defendant’s automobile.

Plaintiff Pime was a passenger in the Roth automobile and the two men, along with plaintiff Zalinski, were longtime friends. Pime’s testimony was similar to that of Roth. He stated that they waited 15 to 20 seconds before beginning the turn. He did not see defendant’s automobile before the accident and had no idea how fast it had been going. Upon deposition he had stated that he had seen defendant’s car ten or fifteen feet away and thought it was going 25 or 30 miles an hour.

Plaintiff Zalinski testified that the first northbound car to stop for Roth’s car was about twenty feet south of them. He stated that the innermost lane stopped first then the middle lane stopped “and then you take your chances on number 3.” Roth stopped the car while in the first lane for 5 or 6 seconds while waiting for the second lane to stop. When he got into the third lane he was creeping along about 3 or 4 miles per hour and then came the impact.

Defendant Nauman testified that on the day in question he was driving a 1959 Ford northbound on Cicero. He got into the curb lane about 70 yards south of Caldwell since the other two lanes were filled with cars whereas the third was comparatively empty. There was another car in the curb lane preceding him by approximately 80 yards. He was traveling about 20 miles an hour and when he was approximately 15-20 feet from the point of impact he saw the first car in the middle lane stop abruptly and then saw plaintiffs’ car coming into his lane. He applied his brakes and tried to swerve before the impact occurred.

A disinterested witness, Richard Whaler, testified that he was stopped on Caldwell waiting to turn onto Cicero when the accident occurred. He stated that plaintiffs’ automobile had made an accelerated start into a momentary break in traffic and that the center and middle lanes opened at the same time allowing plaintiffs’ automobile to enter. He estimated defendant’s speed at 20 to 25 miles an hour. He said that defendant’s lane was the only one freely moving northerly at the time. Defendant was passing cars in the middle lane as he came up to Caldwell. Plaintiffs’ car was not moving slowly as it entered the curb lane of northbound traffic.

At the close of all the evidence the court granted plaintiffs’ motion for a directed verdict and the case went to the jury on the issue of damages only. Verdicts aggregating $1,310, were returned. Defendant appealed.

Defendant first contends that the issues of negligence and contributory negligence should not have been resolved against him as a matter of law. A directed verdict is proper if all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 229 NE2d 504.

Defendant refers us to the statute regarding left turns in an intersection which reads in part as follows:

“The driver of a vehicle within an intersection intending to turn to the left shall yeild (sic) the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver, having so yielded and having given a signal . . . may make such left turn and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right-of-way to the vehicle making the left turn.” (Ill Rev Stats 1959, c 95%, par 166.)

Defendant asserts that plaintiff, Roth, did not exercise due care in making his turn and the presence of defendant’s car constituted an immediate hazard within the meaning of the statute and, furthermore, that defendant himself did only what he was supposed to do and at all times acted reasonably and with due care. Plaintiffs, on the other hand, assert that once their car was in the intersection and making the turn that defendant was required to yield the right-of-way, and that defendant was driving too fast when he knew or should have known that the cars in the next lanes were stopped. The part of the statute requiring oncoming traffic to yield to a vehicle that has begun a left turn would assume a condition wherein the oncoming drivers could see the turning car in time to avoid a collision. Furthermore, the statute does not encompass a situation where a driver accelerates from a stopped position to make a left turn and cut into a 15-foot break in heavy traffic in so doing. From the evidence in this case a jury could conclude that plaintiff Roth was guilty of contributory negligence as to his claim and that defendant was not guilty of negligence as to any of the plaintiffs.

As can be seen from the contentions set forth in the above paragraph these were contested issues of fact involving the due care or lack thereof on the part of both drivers. Conflicting evidence was presented regarding the speed of both automobiles. It appears to us that reasonable men could differ in their evaluations of the acts of the drivers. The court in Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74, discussed the taking by the court of questions of negligence from the jury and stated on page 84:

“Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. The right of trial by jury is recognized in the Magna Charta, our Declaration of Independence and both our State and Federal constitutions. It is a fundamental right in our democratic judicial system. Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues such as negligence and proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body. The jury is the tribunal under our legal system to decide that type of issue. To withdraw such questions from the jury is to usurp its function. Bailey v. Central Vermont Railway Co. 319 US 350.”

The above reasoning applies equally well to the question of contributory negligence. We feel that these were matters for the jury’s determination and that it was error for the court to decide them as a matter of law and direct a verdict in favor of plaintiffs.

It should be noted that plaintiffs contend that any finding by this court of contributory negligence on the part of Roth would not be imputed to the other plaintiffs and therefore the judgments as to them should be allowed to stand. Under the authority of Bridgewater v. Wagoner, 28 Ill App2d 201, 170 NE2d 785, we agree that contributory negligence of the driver, Roth, in this case would not be imputed to his passengers. However, the judgments in this case are based on a finding by the court of negligence of the defendant as a matter of law, and, in finding that that issue should have been submitted to the jury, we cannot uphold the judgments in favor of any of the plaintiffs.

Defendant also contends that this court should find him not guilty of negligence and Roth guilty of contributory negligence as a matter of law. In view of our conclusion that the evidence presented questions of fact for the jury on these matters we cannot agree with defendant’s position.

For the foregoing reasons the judgments in favor of plaintiffs are reversed and the cause is remanded for a new trial.

Reversed and remanded.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE BRYANT

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George W. Hankins, Defendant-Appellant.
    Gen. No. 51,068.
    First District, Second Division.
    December 1, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Carolyn Jaffe and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County (Elmer C. Kissane and Eldridge Hersey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

The appellant, George W. Hankins, (“defendant” herein) was tried by the court and convicted of attempted rape.

On appeal defendant contends, (1) that the testimony of the complaining witness was neither sufficiently clear and convincing nor sufficiently corroborated to establish the defendant’s guilt beyond a reasonable doubt; (2) that the specific intent to commit rape was not established beyond a reasonable doubt; and, (3) that rulings of the trial court effectively deprived defendant of his right to confrontation.

The complaining witness, Miss Donna Marie Bowling, testified as follows: Early in the morning of July 22, 1965, she was sleeping alone in her bedroom at 2923 West 24th Street, Chicago, Illinois. Her parents and her brother were asleep in nearby rooms of the apartment. She was sleeping on her stomach when she was awakened by someone on top of her. She noticed that the lights had been turned on. The person had his hand over her mouth. He told her not to make any noise and to do what he told her or he would kill her. The man cut off her pajamas and underwear with a pair of scissors taken from her drawer. He then rolled her over and got on top of her. She opened her eyes and saw the defendant, whom she identified in court. She testified that she had seen the man walking a dog near her home about ten times prior to July 22, 1965. She was entirely unclothed and defendant was unclothed from the waist down. The defendant tried to force her legs apart. She cried, pleaded with him to stop and refused to open her legs. The defendant then attempted to force her to satisfy him orally. Again she refused and successfully resisted his efforts. Finally, the defendant tried to force her to masturbate him and upon her refusal he brought himself to a climax. Thereafter, the defendant told Miss Bowling he was going to leave and that she should keep her eyes closed and remain silent until she heard him leave. She kept her eyes closed for about five minutes but did not hear him leave. She then opened her eyes and finding that defendant was gone she ran to her parents’ room. The police were called and came to the Bowling apartment to investigate. Miss Bowling also found that some of her possessions, including an electric razor, some clothing and some jewelry were missing.

On July 30, 1965, Miss Bowling went to the police station where she identified defendant, who had been brought in on another matter, as the man who had attacked her. She also saw and identified her electric razor at the police station. It had been recovered from defendant’s home by the police.

The defendant pleaded guilty to a charge of burglary of the complaining witness’ apartment. However, the defendant denied the charge of attempted rape. At trial, he testified that he was in Miss Bowling’s bedroom on the night in question, that he ransacked the room and stole the razor. He testified, however, that Miss Bowling was not in the room at that time and that he saw her for the first time at the police station on July 30, 1965.

Defendant’s first contention on appeal is premised on the rule stated by the Illinois Supreme Court in People v. Reaves, 24 Ill2d 380, 382, 183 NE2d 169 (1962) :

“Because a charge of rape is easy to make and hard to defend, the law requires that where the accused denies it the testimony of the prosecuting witness must either be corroborated or be clear and convincing.”

Defendant argues that the complaining witness’ story was neither sufficiently clear and convincing nor sufficiently corroborated to establish his guilt beyond a reasonable doubt. We find that the testimony of the witness was clear and convincing. Her testimony was also corroborated by the testimony of the defendant.

Defendant contends that the witness’ testimony that defendant wore a mask over the upper portion of his face and the failure of the police report to note that she mentioned a mask to the officers who investigated the complaint weakens the reliability of her identification of defendant. The defendant’s admission that he was in Miss Bowling’s bedroom in the early hours of July 22, 1965, strongly corroborates her identification. The witness’ description of defendant to the police at her home immediately after the attack upon her and her identification of defendant at the police station eight days after the occurrence is additional corroboration.

It is contended that inconsistencies in the witness’ testimony as to when she recognized defendant as a “neighborhood man” whom she had seen previous to July 22, 1965, walking his dog near her home impeach her credibility. It is clear from the record that the witness first mentioned the fact that she so recognized defendant when she saw him at the police station eight days after the occurrence. Though the witness’ testimony is not definite as to when she actually realized defendant was someone she had seen previously we do not observe any inconsistency in the testimony which renders her story either unclear or unconvincing.

Defendant contends that due to the mask, lighting conditions and the witness’ statement that she “got a glimpse of him” the identification testimony is weak. This contention pertains to the weight and credibility of the testimony, it does not relate to any inconsistency or improbability which would render the witness’ story unclear or unconvincing.

“It is the duty of the court in a bench trial to determine the credibility of the witnesses and the weight to be given their testimony, and unless the evidence is so improbable or unsatisfactory as to leave a reasonable doubt of defendant’s guilt, the finding of the court will not be disturbed.” People v. Reaves, Supra, at 382.

Defendant contends that the failure of the witness to cry out so as to arouse her family during the attack renders her story unconvincing. According to Miss Bowling’s testimony the defendant said that he would kill her if she did not do as told. In view of such a threat her story is not made less convincing by the fact of her failure to scream or call out. See People v. Butler, 80 Ill App2d 265, 225 NE2d 493 (1967).

The defendant also contends that failure of the State to bring in the cut and torn clothing of the complaining witness, fingerprint analysis of the scissors with which her clothing was cut and the soiled bed sheets gives rise to an inference that the evidence would have been unfavorable to the State or is nonexistent. The State is not required to introduce all evidence which might be admitted, especially where that evidence would have merely strengthened testimony which the State did introduce. See People v. Mack, 25 Ill2d 416, 185 NE2d 154 (1962).

Defendant’s second contention is that the specific intent to commit rape is not established by the testimony. Miss Bowling’s testimony was that defendant had his hand over her mouth, that he had a scissors in his hand, that he told her to do what he told her or he would kill her, and that he tried to force her to open her legs. The credibility of this testimony was for the determination of the trial court. If believed, the testimony very amply demonstrates intent to commit rape.

Defendant’s third contention is that the court’s refusal to allow defendant to examine certain police reports and the court’s refusal to allow certain questions in cross-examination of Officer Lorenz denied defendant the right of confrontation of witnesses against him as guaranteed by the United States Constitution. The police reports in question were a report made by Officer Kary who interviewed Miss Bowling on July 22, 1965, and a report by an Officer Nowicki, who was present on July 30, 1965, when Miss Bowling identified the defendant at the police station. During cross-examination of Miss Bowling and of Officer Lorenz the defense moved for production of these reports. The court examined these reports, concluded that they contained no verbatim statements of the complaining witness and advised counsel that the reports would only be made available later for purposes of cross-examination of the reporting officers. The officers were not called and the reports were not available to the defense until the close of the trial when they were made a court’s exhibit. Defendant argues that the purpose for which the reports were sought was the impeachment of the complaining witness rather than for impeachment of the reporting officers, who were, in fact, not called to the stand to testify.

The defendant maintains that the doctrine laid down in Pointer v. Texas, 380 US 400 (1965) requires that the reports should have been given to the defendant. That case included the introduction into evidence by the State of a transcript of a robbery victim’s statement without affording the defendant the right of cross-examination at either the taking of the statement or at trial. The U. S. Supreme Court held this to be a denial of due process under the Fourteenth Amendment in that it was a denial of the accused’s right to confront the witness against him. No such problem is presented in the instant case. The police reports were not admitted into evidence against the defendant and the complaining witness was at trial and was cross-examined at some length by the defense.

The applicable Illinois law on this matter is set forth in People v. Wolff, 19 Ill2d 318, 167 NE2d 197 (1960) cert den, 364 US 874 (1960), and People v. Wright, 30 Ill2d 519, 198 NE2d 316 (1964). In the Wolff case the Illinois Supreme Court said:

“• • • [W]e adopt the view that where no privilege exists, and where the relevancy and competency of a statement or report has been established, the trial judge shall order the document delivered directly to accused for his inspection and use for impeachment purposes. However, if the prosecution claims that any document ordered to be produced contains matter which does not relate to the testimony of the witness sought to be impeached, the trial judge will inspect the document and may, at his discretion, delete unrelated matters before delivery. is made to the accused.”

In the case at bar the State argues, and we agree that the reports were properly denied for failure of the defense to lay adequate foundation.

In People v. Wolff, supra, it was said, at p 328:

“In determining whether an accused has been prejudiced by the rejection or exclusion of evidence, so as to require a reversal of the judgment, this court will look to the entire record to see if the rejected evidence could have reasonably affected the verdict, (People v. Terrell, 262 Ill 38), and will refuse to disturb the judgment where guilt is shown beyond a reasonable doubt or where, upon the evidence, the jury could not have reached a different verdict. (People v. Dunham, 344 Ill 268; People v. Marmon, 389 Ill 478, certiorari denied 326 US 725.)”

The reports and defendant’s argument upon them indicate that any possible impeachment of Miss Bowling’s testimony which reference to them might have yielded would have concerned the witness’ identification of defendant as the man who was in her room and assaulted her on July 22, 1965. Defendant refers to Officer Kary’s notation that Miss Bowling indicated the defendant left her apartment through her bedroom window and contends that this impeaches her testimony that she did not see defendant leave the room. The defendant also contends that the absence of any mention in the police report that the defendant wore a mask could be used to impeach her testimony that defendant was wearing a mask. Finally, defendant contends that Officer Nowicki’s report which indicated that three men were present when Miss Bowling identified the defendant should have been available for the impeachment of Officer Hanna’s testimony to the effect that ten or twelve men were present. As we have indicated in discussion of defendant’s first contention, any doubts regarding Miss Bowling’s identification of defendant are overcome by the defendant’s admissions at trial that he was present in her room at the time in question. In view of this we fail to see how defendant could have been substantially prejudiced by denial of his motion for production of the police reports.

Finally, we turn to the defendant’s contention that the court’s refusal to allow certain questions in cross-examination of Police Officer Lorenz was a denial of the right to impeach the complaining witness. The questions concerned the location and condition of Miss Bowling on July 30, when she was brought to the police station to identify the defendant. Defendant argues that he should have been allowed to elicit any answers which might have indicated either bad character or the inability of her identification of the defendant due to drunkenness. In a trial for rape the immoral character of the witness can only be shown by proof of general reputation in order to show probability of consent, only after a proper foundation is laid, and specific acts of misconduct may not be testified to. People v. Fryman, 4 Ill2d 224, 229, 122 NE2d 573 (1954). People v. Collins, 25 Ill2d 605, 611, 186 NE2d 30 (1962), cert den 373 US 942 (1963). The purpose of the questioning which was clearly intended to discredit the moral character of the complaining witness far outweighed any value it may have had as to the identification of the defendant in view of his plea of guilty to the burglary charge. The court’s refusal to allow the question was proper.

The judgment is affirmed.

Judgment affirmed.

LYONS, P. J. and BURKE, J., concur.


text:
    James Shrout, d/b/a The Shrout Agency, Plaintiff-Appellant, v. McDonald’s System, Inc., an Illinois Corporation, and Ray Kroc, Defendants-Appellees.
    Gen. No. 51,594. (Abstract of Decision.)
    First District, Second Division.
    December 1, 1967.
    Rehearing denied January 24, 1968.

      Foss, Schuman & Drake, of Chicago (George C. Pontikes, of counsel), for appellant; Hume, Groen, Clement & Hume, and Jerome Gilson, of Chicago, for appellees.
   Opinion by JUSTICE BURKE. Not to be published in full.


author: MR. PRESIDING JUSTICE LYONS

text:
    Arthur Pope, d/b/a The Pixie Shop, Plaintiff-Appellee, v. Wanda H. Kaleta, Defendant-Appellant.
    Gen. No. M-51,598.
    First District, Second Division.
    December 1, 1967.

      James L. Ferstel, of Chicago, for appellant.
    George E. Brogan, of Chicago, for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment for $1,303.58, and costs for plaintiff, Arthur Pope, d/b/a The Pixie Shop, against the defendant, Mrs. Wanda Kaleta, the cause being tried by the court without a jury. Liability was predicated upon the Family Expense Statute for clothing purchases made between September, 1959, and May, 1961. The defendant appeals.

The plaintiff, a Chicago retail clothing store owner, had been friends with the defendant and her husband for about eighteen years. During this time he had often sold them wearing apparel for their own use and for that of their two children. Mr. Kaleta was an attorney and a contractor who aided the plaintiff in remodeling his retail store and in repairing his private residence. The compensation earned by Mr. Kaleta was credited against the sums owed to the plaintiff for clothing purchases.

Both parties had an understanding that the clothing items were to be sold at cost. Sales tickets were used to evidence the transaction. An original and two carbon copies were made simultaneously with the sale. The plaintiff retained the original and one carbon copy of the sales ticket whereas the purchaser (Mr. or Mrs. Kaleta) took the other carbon copy with the goods. The plaintiff did not otherwise record these credit sales, but kept the sales tickets loose in a drawer until Mr. Kaleta would inquire into the amount of his debt when he came in to settle. The plaintiff would then run an adding machine tape of the sales tickets, have Mr. Kaleta verify the figures, and allow Mr. Kaleta to destroy the plaintiff’s carbon copy of the sales ticket, after he had made payment. The only record of the transaction then would be the original copy of the sales ticket, which was put with the daily cash register tapes after payment and made a part of the plaintiff’s daily cash entry. The defendant (Mrs. Kaleta) did not pay these bills. Only her husband did. The defendant never discussed payment with the plaintiff and knew nothing about how the clothing bills were paid.

Mr. Kaleta died in June, 1964, and in December, 1964, the plaintiff filed his complaint against the defendant asking for $2,553.48 and interest, based on the Family Expense Statute. In her answer the defendant pleaded among other things: (1) that the five-year statute of limitations negated some of the items sued for, and (2) that full payment by her husband in his lifetime negated the entire debt. The plaintiff did not file a reply to these matters.

At the trial, the plaintiff excluded $187.18 of the amount specified in his complaint, and he also mentioned $444 was owed to Mr. Kaleta’s estate for carpentry work done by the decedent on the plaintiff’s boat. A further sum of $618.72 representing the defendant’s savings and checking account balances had been garnisheed by the plaintiff, on which a default judgment had been entered, had never been refunded to defendant after the judgment had been vacated. This reduced the amount in controversy to $1,303.58. When the plaintiff sought to testify concerning the transactions giving rise to his cause of action, the defendant objected on the ground that she was being sued as the heir of a deceased person (Mr. Kaleta) and as a party to this civil action, his proffered testimony would be incompetent under the Dead Man’s Act. The court overruled the objection and allowed the plaintiff to testify. When the plaintiff sought to introduce into evidence the originals of the sales tickets, the defendant objected on the grounds they related to transactions with a deceased person who could not refute this testimony and that they were also self-serving documents. The court permitted them to be admitted into evidence. Almost half of the sales slips admitted into evidence contained the month and the day of the purchase, but not the year. None of the sales tickets were signed by the defendant or her husband, but all of them had either the name “Wanda K.,” “Wanda,” “Mrs. Kaleta,” “Charles Kaleta,” or “Kaleta” appearing at the top. The invoice numbers which these sales tickets bore did not generally follow any chronological sequence. None of the sales tickets indicated if the sale was made on credit or on any other basis.

After the plaintiff’s testimony and the introduction of the sales tickets into evidence, the defendant was called by the plaintiff as an adverse witness under section 60 of the Civil Practice Act. She furnished no new information but she did admit receiving some of the merchandise from The Pixie Shop. Immediately after so testifying and before being examined by her own attorney as to any defenses she might have, the defendant rested her case.

The court entered judgment for the plaintiff in the amount of $1,303.58 and stated the $444 credit in favor of the decedent’s estate for repairs to plaintiff’s boat was adjudged to be satisfied by allowance against the plaintiff’s judgment.

On appeal, the defendant-appellant contends: (1) plaintiff’s failure to file a reply to the new matters raised in defendant’s answer (i. e., affirmative defenses) constituted an admission of their truth by the plaintiff under sections 32 and 40(2) of the Civil Practice Act; (2) the trial court erred in permitting the plaintiff to testify in his own behalf against the defendant who was defending as an “heir” under the Dead Man’s Act; (3) the trial court erred in admitting the sales tickets into evidence under 111 Rev Stats (1965) chapter 51, section 3, as the plaintiff’s cause of action was not founded on a book account or any other record or document; (4) the trial court erred in applying the ten-year statute of limitations to these debts rather than the five-year statute of limitations, since the plaintiff’s cause of action is based on a statute and not any evidence of indebtedness in writing.

In response, the plaintiff-appellee contends: (1) the requirement of a reply to an affirmative defense is waived where a defendant proceeds to trial without objection and raises the point for the first time on appeal, rather than in the trial court; (2) the plaintiff was a competent witness at the trial because the defendant was not defending as an “heir” but rather was defending as a spouse under the Family Expense Statute; (3) the sales tickets were properly introduced into evidence under Rule 5 of the Civil Practice Rules of the Municipal Court of which this court must take judicial notice; (4) the trial court properly applied the ten-year statute of limitations because the sales tickets introduced into evidence constituted “other written evidence of indebtedness” under Ill Rev Stats (1965) chapter 83, section 17.

The defendant’s first contention is for judgment in her favor as a matter of law based upon the pleadings. This is grounded on the contention that the defendant did not have to meet her burden of proof concerning the five affirmative defenses raised for the first time in her answer, since the plaintiff’s failure to reply to them amounted to an admission thereof on the face of the pleadings, under sections 32 and 40(2) of the Civil Practice Act. The five affirmative defenses can be grouped into three legal theories; (1) statute of limitations; (2) full payment by defendant’s husband in his lifetime by paying cash or performing services for the plaintiff; (3) nonliability under the Family Expense Statute, because purchases were gifts for nonfamily members and the plaintiff sold the items relying solely on the deceased husband’s credit.

The last legal theory is not an affirmative defense raising a new matter, but, in substance, is a denial of plaintiff’s allegation that liability can be based upon the Family Expense Statute. In a similar situation in Snyder v. Robert A. Black, Inc., 53 Ill App2d 327, 203 NE2d 1 (1964), at page 332 the court stated:

“There is no requirement that a plaintiff must deny a defendant’s denials of the allegations which were asserted in the complaint. The answer merely joined the issues and did not raise any affirmative defense or new matter which required a reply.”

In this case, defendant’s denial of any liability under the Family Expense Statute did not require the plaintiff to reply in order to avoid an admission. The defendant did raise in her answer the affirmative defense of full payment, but the plaintiff anticipated and negatived this defense in his complaint when he alleged he had not been paid although often requesting payment. In re Estate of Braun, 330 Ill App 322, 71 NE2d 364 (1947), it was held that where a complaint meets and negatives matters set up in an answer, no reply to the answer is necessary, as no “new matter” by way of defense is pleaded in the answer requiring a reply under sections 32 and 40 (2) of the Civil Practice Act. The plaintiff in this case has likewise anticipated and negatived the defense of full payment by alleging in his complaint that he had not been paid although often requesting it. Hence, no reply to this matter raised in the defendant’s answer was required.

As to the statute of limitations, it is apparent from the complaint and the answer that issue was joined on this point. The complaint and summons shows when the action was commenced and the allegations of the complaint give the various dates on which the causes of action accrued. The answer shows the defendant is relying on the five-year statute of limitations. Thus, the court can observe from these two pleadings that some of the invoices are barred by the statute of limitations, if the five-year statute is adopted. No reply by the plaintiff is required. If the complaint and answer effectively raise the issue, there is no need for a reply. Salone v. Reck, 32 Ill App2d 308, 177 NE2d 879 (1961). We hold that the plaintiff did not admit the truth of the affirmative defenses raised for the first time in defendant’s answer by not filing a reply. A reply was not required in the circumstances.

The defendant’s second contention is that the plaintiff was an incompetent witness at the trial under the Dead Man’s Statute, Ill Rev Stats (1965) chapter 51, section 2, because he was a party to a civil action testifying on his own motion and the defendant was an adverse party defending in a representative capacity; i. e., as heir of her husband. This contention is answered by the fact that the defendant was not being sued in any representative capacity, but rather was being sued for her own separate liability under the Family Expense Statute, 111 Rev Stats (1965) chapter 68, section 15, which provides:

“The expenses of the family . . . shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.”

In this case the complaint alleges, and plaintiff’s counsel in his opening statement reiterated, that this suit was brought under the Family Expense Statute and that the defendant was being sued for her separate liability thereunder. Since the defendant was not being asked to defend in a representative capacity, but rather was defending her own separate and individual liability under the Family Expense Statute, the Dead Man’s Statute is not involved. Even if defendant’s husband were alive, the defendant could still be sued alone for her separate liability under the Family Expense Statute. The trial court properly ruled that the plaintiff was a competent witness.

The defendant’s third contention is that the plaintiff’s sales slips should not have been admitted into evidence under Ill Rev Stats (1965) chapter 51, section 3, as his cause of action was not founded on any document, but was founded on an oral contract of sale with the sales slips being merely memos thereof. At the trial, the plaintiff argued for their admission under this statute, but in his brief on appeal, he asks this court to take judicial notice of Municipal Court Rule 5, permitting the admission of memorandums made in regular course of business. The defendant counters that the plaintiff cannot raise Municipal Court Rule 5 for the first time on appeal. The plaintiff’s cause of action is based on a statute and not on an oral contract or written document. Ill Rev Stats (1965) chapter 51 section 3, cannot be used to permit these sales slips to be admitted into evidence, because plaintiff’s cause of action is based on a statute and not on the sales slips.

As to the question of judicial notice, Ill Rev Stats (1965) chapter 51, section 48b provides:

“Upon the review by any court of appellate jurisdiction by appeal, writ of error or otherwise, of a judgment, order or decree of an inferior court such court of appellate jurisdiction shall take judicial notice of all matters of which such inferior court was required to take judicial notice, including all rules of practice adopted by such inferior court. . . .”

Prior to the passage of this statute in 1929, the Illinois common law was that the reviewing courts would not take judicial notice of the rules of a court of inferior jurisdiction unless the rules appeared in the record. In the case of Capital State Sav. Bank v. Larson, 255 Ill App 479 (1930), the defendant contended that the Illinois Appellate Court could not take judicial notice of a Municipal Court Rule, as it was not incorporated into the record and hence the plaintiff could not raise it for the first time on appeal. The court disagreed, stating Ill Rev Stats, chapter 51, section 48b, now gave it that power. To the same effect is Paulick v. National Bank of Republic, 279 Ill App 160 (1935).

Hence, this court will take judicial notice of Municipal Court Rule 5, which states:

“Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of such act, transaction, or event, if made in the regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.”

Under this rule the sales slips could have been properly admitted into evidence. The plaintiff testified they were writings made as a record of a transaction and such writings were made in the regular course of his business, simultaneously with the sale. Hence, it was not error for the trial court to admit the plaintiff’s sales slips into evidence.

The defendant finally contends that the five-year statute of limitations should have been applied to the plaintiff’s cause of action. She urges it was error for the trial court to apply the ten-year statute of limitations based on the plaintiff’s contention in the trial court and renewed on appeal, that his suit is an action on “other written evidence of indebtedness” under Ill Rev Stats (1965) chapter 83, section 17. As indicated above, this court finds that plaintiff’s cause of action is based on a statute, the Family Expense Statute, and not on an oral contract or “other written evidence of indebtedness.” The complaint specifically alleges Family Expense Statute liability and plaintiff’s counsel reiterated this in his opening statement to the court.

The Family Expense Statute does not contain a statute of limitations section, therefore, the general statute of limitations found in chapter 83 controls. In Seymour v. Union News Co., 217 F2d 168 (CA 7th Cir 1954), a wife was suing, under diversity jurisdiction, for her husband’s medical bills which she had paid. His illness was due to his eating unwholesome food in the defendant’s restaurant. Her husband’s suit had been dismissed in the Illinois courts under the two-year statute of limitations applicable to personal injuries, but his wife was now suing under the Illinois Family Expense Statute for his medical bills. The trial court sustained the defendant’s motion to dismiss the complaint applying the two-year statute of limitations, but the Court of Appeals reversed and remanded relying upon Roth v. Lundin, 237 Ill App 456 (1925), and stating that under Illinois law, actions brought under the Family Expense Statute are governed by Ill Rev Stats (1965) chapter 83, section 16, since they are “. . . all civil actions not otherwise provided for . . . .” and hence the five-year statute of limitations applied.

Since plaintiff’s cause of action here was based upon the Family Expense Statute, the five-year statute of limitations applied to the various sales slips introduced into evidence. The complaint was filed on December 29, 1964. Consequently, all sales slips dated from September 2, 1959, to December 29, 1959, are barred by the five-year statute of limitations. They total $1,110.44. The judgment is reduced from $1,303.58 to $193.14 and costs and as so reduced the judgment is amended, and as amended, is affirmed.

Judgment affirmed as amended.

BURKE and BRYANT, JJ., concur.


text:
    Phillip Kitzer, Plaintiff-Appellant, v. L. Rice, Defendant-Appellee.
    Gen. No. M-51,676.
    First District, Second Division.
    December 1, 1967.

      Norman L. Hafron, of Chicago, for appellant.
    Schiff, Hardin, White, Dorschel & Britton, of Chicago (Robert S. Hunt, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal by plaintiff, Phillip Kitzer, in an action for forcible detainer and rents due, from the entry of an order by the Circuit Court of Cook County on July 14, 1966, which order, upon the motion of defendant, Leonard Rice, dismissed plaintiff’s complaint and granted a summary judgment on the facts as disclosed by the pleadings. The cause concerns the ordinary statutory proceeding brought pursuant to the provisions of Ill Rev Stats (1965) chapter 57, par 1 et seq., by landlord against tenant for possession and recovery of delinquent rents for the months of May and June, 1966, of the premises at 4146 West 83rd Street in the City of Chicago.

Save the testimony of plaintiff at the hearing on the motion, the facts of the case are limited by those which appear from the pleadings filed; i. e., the complaint, motion to dismiss and for summary judgment and reply or objections to said motion.

Plaintiff’s complaint appears upon the standard form provided by the Clerk of the Court for cases of this nature. Such pleading avers plaintiff to be entitled to possession, being presently and unlawfully withheld by defendant, and joins therein a prayer for $250 rent or damages for rents due from and after May 1, 1966.

Defendant filed a motion to dismiss and for summary judgment under section 48 of the Practice Act, which motion was accompanied by the supporting affidavit of defendant, together with attached Exhibits 1 through 8 inclusive. Defendant averred in substance:

1. That on April 27, 1966, defendant received written notice from the Marquette National Bank of Chicago, by one Robert Wesley (Exhibit 1), advising him that said bank was trustee and owner of the legal title of the premises occupied under Trust No. 1489, and directing him, under threat of eviction, to make all future rental payments to Marquette Bank.

2. That since April 27, 1966, defendant has made all payments of rent to Marquette.

3. That Marquette is, in fact, trustee of the property as evidenced by the Preliminary Report of Title by the Chicago Title and Trust Company. (Exhibit 2.)

4. That on July 31, 1964, the Plymouth Insurance Agency, Inc., by plaintiff, its President, executed an assignment of the beneficial interest in said Trust No. 1489 to Allied Realty of St. Paul, Inc., a Minnesota corporation, acceptance thereof in behalf of Allied being made by plaintiff as its President as well. (Exhibit 3.)

5. That by order of the court of Ramsey County, Minnesota, on August 4, 1965, the American Allied Insurance Company, a Minnesota corporation, was declared insolvent and placed in receivership, one Homer A. Bonhiver being appointed receiver to take possession of all properties and settle the affairs of said corporation. (Certified Exhibit 4.) American had, upon the complaint of the Commissioner of Insurance of the State of Minnesota, been found guilty of considerably understating certain of its reserves and overstating certain of its assets. The court found that, among other assets of American, there was included 100% of the outstanding stock of Allied Realty of St. Paul, Inc., its wholly owned subsidiary. Plaintiff was President of both corporations. Continuing, the court stated however:

“The miscellaneous real estate located in Illinois, . . . has no value which may be attributable since American . . . refused to present any indicia of ownership when demand was made, and there was no competent evidence to establish such ownership.”

6. That the appointed receiver took possession pursuant to the court order of all of American’s assets, including 100% of the stock of Allied (Exhibit 5, affidavit of Homer A. Bonhiver).

7. That by Certificate of Incumbency dated February 17, 1960, (Exhibit 6), Messrs. Homer A. Bonhiver and Frank J. Hammond were appointed the certified officers of Allied, and by resolution of the same date (Exhibit 7), were authorized individually to execute powers of direction, instructions, or assignments of any documents relating to the Marquette Trust No. 1489.

8. That Bonhiver, in this capacity, directed a letter to Marquette, attention of Robert Wesley (Exhibit 8), relative to an enclosed notice (not appearing of record) which Marquette was instructed to serve upon the tenants of the premises.

Plaintiff, in response, filed an unverified reply or objection to the motion of defendant, without aid of supporting counteraffidavit, the material portions of which were:

1. That defendant has failed to deny, and thus admitted, the existence of the lease between the parties, his prior payments of rent to plaintiff, and plaintiff’s satisfaction of taxes, insurance, and mortgage indebtedness on the property.

2. That by the language of the Minnesota court order, that court refused to recognize the validity of the assignment to Allied as well as any present ownership by American of real estate in Illinois, hence the authority of both Bonhiver and Hammond was void.

3. That accordingly plaintiff was, and is, the owner of equitable title to the building in question.

4. That defendant cannot endeavor to litigate the question of title in a forcible detainer case.

Thereafter, plaintiff had, in addition, testified briefly at the hearing on the motion, at which time he asserted the existence of an oral lease with defendant, the previous payments of rent thereunder being made by defendant to plaintiff, and plaintiff’s satisfaction of all the debts of the property incident to ownership thereof. Thereupon, the court below entered its order dismissing the complaint and granting summary judgment, from which plaintiff filed his Notice of Appeal. Essentially, the question presented on appeal is the propriety of the admission into evidence of title documents in a forcible detainer action, each party advancing his respective theory in support of or in opposition thereto.

A forcible detainer action is a special and limited proceeding wherein the scope of judicial inquiry is confined to matters closely allied to the distinctive purpose of the governing statute; to wit, a determination of the right to immediate possession. Reid v. Arceneaux, 63 Ill App2d 113, 211 NE2d 24 (1965); Ill Rev Stats (1965) chapter 57, pars 2 and 5. Accordingly, such representative cases as Piptone v. Mandala, 33 Ill App2d 461, 180 NE2d 33 (1962); Bleck v. Cosgrove, 32 Ill App 267, 177 NE2d 647 (1961); and Jordan v. Weston, 26 Ill App2d 498, 168 NE2d 809 (1960) have affirmatively established that the question of title cannot be made a proper subject matter of litigation in a forcible detainer action.

That principle admitted, defendant urges the admissibility of title documents into evidence where, as here, they are offered for the limited purpose of establishing or clarifying one’s right to immediate possession of the premises. To the extent that such a procedure will not, as necessarily incident thereto, require an adjudication of contradictory claims to title, we deem defendant’s position supported by appropriate authority. Piptone v. Mandala, 33 Ill App2d 461, 180 NE2d 33 (1962); Jordan v. Weston, 26 Ill App2d 498, 168 NE2d 809 (1960); Palkey v. Donichy, 18 Ill App2d 356, 152 NE2d 494 (1958); Layzod v. Martin, 305 Ill App 1, 26 NE2d 423 (1940). To hold otherwise under the guise of some rigid exclusionary rule, would be to preclude a tenant, under circumstances akin to the case at bar, from showing the derivation of his claim to rightful possession. Nicholson v. Walker, 4 Ill App 404 (1879).

Plaintiff takes exception to defendant’s theory, contending that the admission of the documents below operated as a subterfuge to the long established rules of estoppel upon the tenant. We consider that argument to be untenable in view of the facts here. The existence of an oral lease and a landlord-tenant relationship being admitted, defendant has endeavored to show nothing more than a superior right to possession in one from whom his possession was derived, the situs of title being merely collateral and incident to the evidence so offered. Clearly, under the facts here, evidence of payment by defendant to plaintiff would have been appropriately received. So too where, as below set out, that evidence related to payment to one with rights of possession allegedly paramount to those of the landlord, it was properly admitted.

Our reasoning is based on a fundamental distinction made in cases such as Beach v. Boettcher, 323 Ill App 79, 55 NE2d 104 (1944), a distinction, we note, which plaintiff’s arguments fail to resolve. In that case, a tax deed was caused to be executed to the Interstate Bond Company in satisfaction of certain delinquent real estate taxes from the years 1932 through 1941, approximately 2% years after the lease in question had been entered into. Beach, the landlord-appellee, brought a forcible entry and detainer action against the tenant-appellant for said tenant’s admitted nonpayment of rent for the month of July, 1943. The tenant interposed in defense the absence of title in his landlord. In reversing in favor of the tenant, the court in Beach said:

. . the general rule with respect to estoppel by deed, is subject to the exception that a tenant may show the real estate has been conveyed subsequent to the execution of the lease, either voluntarily by the landlord or by operation of law. ... If the estate is vested in a third person by operation of law, the tenant holds the possession subject to the title of such person. . . .
“. . . where the title of the landlord, is extinguished . . . during the term, . . . the tenant may plead such termination in defense. . . .”

Wooster v. Scott, 326 Ill App 442, 62 NE2d 36 (1945); Mitzlaff v. Midland Lumber Co., 338 Ill 575, 170 NE 695 (1930); 51 CJS § 276, p 926. Accordingly, Exhibits 1 through 8 were properly admitted.

Plaintiff’s further contention, that by his motion to dismiss defendant admitted the facts well pleaded in the complaint, is devoid of merit. Those facts were that plaintiff was entitled to possession being unlawfully withheld by defendant, were conclusions of law made by the pleader, going to the ultimate issue in the case, and hence were not admitted by the motion.

Defendant’s motion and accompanying affidavit incorporated by reference attached Exhibits 1 through 8. Plaintiff in reply, at no juncture, presented any sworn evidence to the contrary, be it by verified motion, counter-affidavit, or testimony in open court. Only plaintiff’s testimony at the hearing appears, that being totally absent of any denial of the material allegations of defendant’s motion. The question presented by the motion was not that of a test of the legal sufficiency of the complaint, rather whether the defense raised by such motion barred plaintiff’s right to proceed as in Keeran v. The Wahl Co., 320 Ill App 457, 51 NE2d 598 (1943). Ill Rev Stats (1965) chapter 110, par 48. Plaintiff, then, by his failure to deny by counteraffidavit is deemed to have admitted the truth of the material averments contained therein. Coleman v. Goran, 26 Ill App2d 288, 168 NE2d 56 (1960); Dorland v. Steinbrecher, 39 Ill App2d 368, 188 NE2d 746 (1963).

Defendant’s motion with supporting documents sufficed to establish a superior right to possession in the receiver. There existing as a matter of law, no bona fide dispute as to any material fact and hence summary judgment was properly granted. Blonar v. Inland Steel Co., 57 Ill App2d 99, 207 NE2d 124 (1965). In this regard, plaintiff seizes upon the language of the Minnesota court order which found that there existed no competent evidence to establish American’s (and Allied’s) ownership of real estate in Illinois. When taken out of context, ostensibly that would seem to be a valid argument.

Viewed within perspective however, a contrary conclusion readily obtains. The action there was one of insolvency proceedings, the fact that American’s liabilities exceeded its assets having been concealed by its overstating the value and/or extent of its holdings on its books of account. As the court there said:

“The books and records of American . . . and its wholly owned subsidiary are so kept that they fail to properly reflect American . . . assets. . . .”

It is from within this context, our examination reveals, that American, and hence Allied (by and through plaintiff as President of both), was found to have refused, when demand was made, to present any indicia of ownership in and to realty in Illinois.

It moreover appears that Bonhiver, as receiver, was directed by order of that court to take possession of all of the properties owned by American, part of which included 100% of the stock in Allied (Exhibit 4 (court order) and Exhibit 5 (affidavit of Bonhiver)), the latter company being the assignee of the beneficial interest in the subject premises, which assignment was executed in plaintiff’s own hand approximately one year prior to the insolvency proceedings. (Exhibit 3.) That the Minnesota court recognized neither ownership by American of the beneficial interest involved, nor the validity of the assignment of same to Allied, under the circumstances disclosed, we feel to be foundless contention. The trial judge properly granted summary judgment. Giampa v. Sunbeam Corp., 68 Ill App2d 425, 216 NE2d 233 (1966). (Emphasis supplied.)

For the above reasons, the order is affirmed.

Order affirmed.

BURKE and BRYANT, JJ., concur.


text:
    Elizabeth Gilbertson, Now Known as Elizabeth Frey, Plaintiff-Appellant, v. Elmer G. Gilbertson, Defendant-Appellee.
    Gen. No. 51,973. (Abstract of Decision.)
    First District, Second Division.
    December 1, 1967.
    Jacobs and Lieberman, of Chicago (Eugene Lieberman, of counsel), for appellant; Sheldon S. Mells, of Chicago (Sheldon S. Mells, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE LYONS. Not to be published in full.


author: MR. JUSTICE BURKE

text:
    Ollie Carey, et al., Plaintiffs-Appellants, v. I. J. Kayle & Associates, Defendant-Appellee.
    Gen. No. 52,170.
    First District, Second Division.
    December 1, 1967.

      Leonard E. Newman, of Chicago, for appellants.
    Harry Jaffe, of Chicago, for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Plaintiffs appeal from a judgment against them and in favor of I. J. Kayle & Associates. On December 21, 1961, a default order for want of an appearance was entered against another defendant Robert Peterson. No judgment has been entered against Peterson. Therefore, the case against Peterson remains undisposed of. Supreme Court Rule 304 which supersedes section 50(2) of the Civil Practice Act provides that if multiple parties or multiple claims for relief are involved in an action an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal; that such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party; that the time for filing the notice of appeal shall run from the entry of the required finding and that in the absence of such a finding any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.

In the instant case the court did not make a finding that there is no just reason for delaying enforcement or appeal. Under the provisions of Rule 304 the judgment was not appealable. Therefore, the appeal is dismissed.

Appeal dismissed.

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


author: MR. PRESIDING JUSTICE DAVIS

text:
    Frances C. Cook, Administrator of the Estate of Joseph A. Cook, Deceased, Plaintiff-Appellee, v. Logan’s Inferno, Inc., a Corporation, Russo’s Derby, Inc., a Corporation, Parkview Liquors, Inc., a Corporation, K. G. Enterprises, Inc., a Corporation, and Marie Townsend, d/b/a Perkin’s Tavern, Defendants-Appellees, Michael Patrick Cook, a Minor, and Joseph John Cook, a Minor, by Their Mother and Next Friend, Mary Ellen Cook, Intervening Petitioners-Appellants.
    Gen. No. 67-72.
    Second District.
    December 12, 1967.

      Knight, Ingrassia & Schirger, of Rockford, for appellants.
    Miller, Hickey, Collins, Gilbert & Powers, and Barrick, Jackson & Switzer, of Rockford, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This appeal involves the propriety of the order of the Circuit Court of the 17th Judicial Circuit, in denying the amended motion of Michael Patrick Cook and Joseph John Cook, minors, by their mother and next friend, Mary Ellen Cook, herein called appellants, for leave to file an intervening petition in the pending dramshop action wherein Frances C. Cook, as administrator of the estate of Joseph A. Cook, deceased, was plaintiff.

The plaintiff’s amended complaint charged that on August 1 and 2, 1965, the defendants were duly licensed and each respectively operated a tavern wherein intoxicating liquors were sold or given to the public; that on said dates, Frances C. Cook was the wife, and Cynthia Cook, the daughter of Joseph A. Cook, and each were dependent upon him for their support; that by virtue of Article VI, section 14 of the Liquor Control Act (Ill Rev Stats 1965, c 43, par 135), they are entitled to maintain a loss of means of support action against each of the defendants; that on said dates, Joseph A. Cook attended each of the defendants’ taverns and there received quantities of liquor which caused him to become intoxicated; and that because of such intoxication, he was killed while negligently operating a motorcycle owned by him.

The appellants, in their amended motion for leave to file an intervening petition, asserted that Michael Patrick Cook and John Joseph Cook were the natural children of Mary Ellen Cook and Joseph A. Cook; and that said natural children were dependent upon Joseph A. Cook for support by reason of a court order directing him to pay child support to them.

The dramshop suit was filed on July 26, 1966. Approximately one and one-half years later and on February 9, 1967, the appellants filed their motion, which was thereafter amended, asking leave to file an intervening petition. This motion was denied and the appellants appealed.

The appellants urge the equities of the factual circumstances as the basis of their right to intervene in the dramshop action, while the plaintiff-appellee asserts that the right of intervention in a dramshop proceeding is governed by Article VI of section 14 of the Liquor Control Act, the pertinent parts of which provide:

“Every person, who shall be injured, in person or property by any intoxicated person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; . . . . An action shall lie for injuries to means of support, caused by an intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, resulting as aforesaid. Such action, if the person from whom support was furnished shall be living, shall be brought by any person injured in means of support in his or her name, for his or her benefit and the benefit of all other persons injured in means of support; however, any person claiming to be injured in means of support and not included in any suit brought hereunder may join by motion made within the time herein provided for bringing such action, or the personal representative of the deceased person, as the case may be, from whom such support was furnished, and the amount recovered in every such action shall be for the exclusive benefit of the person or persons injured in loss of support, and shall be distributed to such persons in the proportions determined by the judgment or verdict rendered in such action. . . . Recovery under this Act for injury to the person or to the property of any person as aforesaid, shall not exceed $15,000, and recovery under this Act for loss of means of support resulting from the death or injury of any person, as aforesaid, shall not exceed $15,000 for each person so injured where such injury occurred prior to July 1, 1956, and not exceeding $20,000 for each person so injured after July 1, 1956; provided that every action hereunder shall be barred unless commenced within one year next after the cause of action accrued.” (Italics Ours.)

In 1949 the legislature amended the above section of the Liquor Control Act by adding a clause providing that every action thereunder shall be commenced within 2 years next after the cause of action accrued. In 1955 the legislature further amended said section to provide that every action thereunder shall be commenced within one year next after the cause of action accrued.

Prior to the 1949 amendment, in the absence of a limitation in the Liquor Control Act which created the dram-shop action, it had been held that the general statutes of limitation applied to such action; and that an action under the Act for an injury to the person was governed by the 2-year statute of limitations and an action for injury to property was based on the 5-year statute. Desiron v. Peloza, 308 Ill App 582, 590-592, 32 NE2d 316 incl. (1941).

The one-year proviso of the Act, above quoted, with respect to the bringing of an action for injuries to the person or property by any intoxicated person against the person or persons selling or giving intoxicating liquor causing the intoxication, has been construed by Illinois

courts. In Lowrey v. Malkowski, 20 Ill2d 280, 170 NE2d 147 (1960), at pages 283 and 284, the Court stated:

“We turn first to the issue of the one-year limitation* on the right to sue, which the Appellate Court regarded as dispositive of this case. The one-year proviso contained in the act is a special limitation upon a statutory cause of action, and as such is distinguishable from the general statutes of limitation which applied prior to the 1955 amendment to the act. Desiron v. Peloza, 308 Ill App 582; Ill Rev Stats 1957, chap 83, par 15.
“A similar limitation in the Injuries Act has been repeatedly held to be a condition precedent to the right of recovery, which must be observed in all events. (Wilson v. Tromly, 404 Ill 307; Fitzpatrick v. Pitcairn, 371 Ill 203; Hartray v. Chicago Railways Co., 290 Ill 85.) In addition to these persuasive authorities, we held that the legislature intended to apply the dramshop limitation retroactively to prevent the evil of prolonged liability of dramshop owners who rarely have an actual knowledge of the events upon which their liability is based. Orlicki v. McCarthy, 4 Ill2d 342, 353.
“The Appellate Courts of this State have consistently held this special limitation of the Liquor Control Act applicable to minor plaintiffs. (Shelton v. Woolsey, 20 Ill App2d 401, 405; Steiskal v. Straus, 3 Ill App2d 479.) The United States Court of Appeals for the 7th Circuit also specifically found that the special limitation of the Liquor Control Act is applicable to minors in Seal v. American Legion Post No. 492, (7th Cir) 245 F2d 908. Because of the plain language of the act, and the evident purpose of the limitation, we agree with the foregoing authorities. We know of no such compelling reason that should induce this court to engraft an exception onto the plain language of the act. We, therefore, hold that the present action involving minor plaintiffs, was required to be filed ‘within one year next after the cause of action accrued.’ ”

In Thompson v. Capasso, 21 Ill App2d 1, 157 NE2d 75 (1959), at page 5, the court stated:

“The statute is an offer of an action on condition that it be commenced within the specified time. If the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action no longer exist, and the defendant is exempt from liability. Generally, statutes permitting a new action to be brought after the expiration of the period of limitations, upon the failure of a previous action commenced within that period, have been regarded as applying to ‘actions founded upon non-statutory rights or upon rights formerly existing independently of statute.’ 34 Am Jur Section 7, p 16, section 280, p 226.”

Also see: Lowrey v. Malkowski, 23 Ill App2d 371, 376, 163 NE2d 528 (1959).

In the case at bar, the cause of action accrued on August 1 or 2, 1965, and under section 14, the action would be barred unless commenced within one year from that date. Likewise, a motion for leave to intervene in said action by any persons not named in the pending suit, must be brought within the year next after the accrual of the action.

The appellants’ motion for leave to intervene was filed on February 9, 1967 — approximately one and one-half years after the cause of action accrued. Consequently, the trial court properly denied appellants’ motion for leave to intervene.

This conclusion is dispositive of this appeal. Therefore, other points raised on appeal, as well as the motion to dismiss the appeal, need not be considered. Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.


text:
    Richard T. Rehwald and Frances J. Rehwald, Plaintiffs-Appellants, v. Karl H. Seelandt, Defendant-Appellee.
    Gen. No. 67-75. (Abstract of Decision.)
    Second District.
    December 12, 1967.
    Williams, McCarthy, Kinley and Rudy, of Rockford, for appellants; Anderson and Martenson, of Rockford, for appellee.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.