author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Defendant in Error, v. Charles E. Glasco, Plaintiff in Error.
    Gen. No. 50,172.
    First District, Third Division.
    January 13, 1966.

      Harley A. Stephenson, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Frank V. Salerno, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant was convicted of burglary with intent to rape and sentenced to not less than two nor more than ten years in the state penitentiary. He contends that the state did not prove the required intent beyond a reasonable doubt; that as an indigent, the defendant was discriminated against because he could not post bond and therefore had a deputy sheriff seated next to him throughout the trial of the case which, he contends, was prejudicial in a jury trial; that the court erred in admitting certain testimony as to subsequent events involving the accused; and that a statement allegedly introduced for impeachment purposes was irrelevant and prejudicial.

Doretha Shores, the prosecutrix, lived in a two bedroom house in Robbins, Illinois, with her three children— a 17-year-old son named Craig Hardeman, a daughter, Claudette, age 14, and another son, Jeffery, age nine. She occupied one bedroom and the children slept in the other. She testified that on the morning of January 14, 1962, at about 5:00 a. m., the defendant broke into her home, went to her room, and said, “Move over, bitch, I’m going to rape you.” At that point they heard Craig in the living room and the prosecutrix ran in there, followed by the defendant. A fight ensued between Craig and the defendant, and the prosecutrix, fearing for Craig, sent him back to his room. Thereupon she and the defendant returned to her bedroom, where she had sexual relations with him.

According to the prosecutrix, the struggle between Craig and the defendant took about ten minutes, the subsequent activities in the bedroom three to five minutes, and the defendant left at about 5:30 a. m., saying, “Don’t call the police.” At 7:30 a. m., the prosecutrix, who had no telephone, went a block and a half to the home of Cora Bryant, a friend of ten years, to call the police. The latter testified that the prosecuting witness looked extremely nervous and told her she had been raped.

The court also admitted into evidence for the purpose of identification the testimony of the prosecutrix and Craig that the defendant again appeared on the porch of their home on January 19, 1962 at 2:00 a. m. According to Craig, Glaseo on that reappearance kicked and pounded on the door for two or three minutes, partially breaking it before leaving. The prosecutrix testified that she was near the front door at thé time, that the living room lights were on, and that it was light outside because there was fresh snow on the ground. They both claimed they could see that it was the defendant through the transparent glass panes in the door.

Craig Hardeman identified the defendant on the street in Robbins, Illinois, on January 20th. He summoned the police, who arrested the defendant shortly afterward, and both Doretha and Craig identified Glaseo at separate police lineups on January 21,1962.

On the question of reasonable doubt, the crime charged is burglary, defined as follows: “A person commits burglary when without authority he knowingly enters ... a building . . . with intent to commit therein a felony or theft.” Ill Rev Stats c 38, § 19-1 (1963). The question therefore is whether at the time of the breaking into the house, the defendant had the felonious intent to commit rape. The crime of burglary with intent to commit rape does not require that rape be proved. The state’s failure to prove rape or to show lack of acquiescence beyond a reasonable doubt is not relevant. Similarly, it is not important that the prosecutrix waited two hours before making a complaint. There was sufficient evidence in the testimony of the prosecuting witness as to the defendant’s language and conduct when in her bedroom and his subsequent fight with Craig to support the jury’s finding that he had the requisite intent when he broke into the house.

The defendant also contends that he was discriminated against in that as an indigent without bail bond, he was attended by a sheriff’s deputy who sat at the counsel table throughout the trial. While this method of handling a prisoner might in certain instances lead to undue prejudice, it does not appear that in the instant case the defendant’s right to a fair trial was impaired. Surveillance of a defendant on trial must be governed in each instance by a sound discretion based on the need for the protection of the judge and others in the courtroom, while at the same time recognizing that a defendant in an extraordinary case may be prejudiced by an undue showing of apprehension on the part of the court or guards.

Defendant argues that the testimony as to his subsequent appearance at the prosecutrix’s home was inadmissible, and that the reception of that testimony in evidence so prejudiced the jury that he was denied a fair trial. Evidence of other independent offenses is generally inadmissible in a criminal case, “not because it has no appreciative, probative value, but because it has too much. . . .” People v. Lehman, 5 Ill2d 337, 125 NE 2d 506. An exception exists where the evidence tends to aid in the identification of the defendant as the person who committed the particular crime for which he is being tried.

Defendant contends that the identity exception is inapplicable under the circumstances of his alleged second appearance at the Shores’ home. He argues that evidence of a subsequent offense is barred unless the later conduct is an integral part of the original crime. This is a narrower construction of the exception than that which the courts have given it. Evidence of subsequent offenses has been allowed to bolster identification where there is a logical relationship between the original crime and the later misconduct. People v. Lewis, 30 Ill2d 617, 198 NE2d 812. In the instant case, the alleged burglary for which the defendant was tried and the second appearance in which he attempted to break down the front door are sufficiently related to warrant the introduction of testimony that it was the defendant who committed the second offense. This evidence was admissible for the purpose of corroborating the prosecutrix’s identification of the defendant as the person who burglarized her home five days previously.

Defendant argues that a statement which was read by the prosecution allegedly for impeachment purposes was irrelevant and prejudicial. The defendant testified on cross-examination that on the morning of January 19th he was at Skin’s Lounge at 2:00 a. m.; that he had arrived at 10:30 or 11:00 p. m. and stayed until 3:30 a. m. This testimony was contrary to that of the prosecutrix and her son, who had testified that the defendant reappeared at their home at that time. The state then questioned the defendant about a prior written statement allegedly made by him to the police concerning events of the 18th and early morning of the 19th. Counsel for the defendant objected to certain questions in the statement as irrelevant. The court expressed doubt as to their propriety, but allowed the reading of the statement in the presence of the jury. The statement follows:

“Q. What did you do January 18, 1962?
A. I got up around 12:00, went to the pool room and went for my compensation, came back to the pool room and stayed there until 7:00 p. m. After 7:00 p. m. I met Medill Jones, went to the Cadillac Club and had a couple of drinks. Then we went back to the pool room and stayed there until 12:00 or 12:30 a. m. The pool room closed and Curtis Brown and I walked home together, he lived up the street from me.
Q. Did you go in the house at this time ?
A. Yes.
Q. Did you leave the house any more on this night ?
A. Yes. I asked my mother for 30{z? and went to the tavern across the street and got cigarettes and came right back.”

The state argues that it was laying a foundation for the impeachment of defendant’s testimony as to his whereabouts at the time of the alleged return to the prosecutrix’s home. The court said that the third question and answer was the only part of the statement which had any value for impeachment purposes, but the defendant denied, making the third answer. At that point the state, apparently content with having had the statement read in the presence of the jury, with whatever inferences as to defendant’s character the jury might derive therefrom, dropped the issue. Defendant’s counsel asked the court to declare a mistrial and when that was denied, he urged the trial court to instruct the jury to disregard the statement in its entirety. The court failed to do so.

The prosecution’s reading of the written statement under the guise of impeachment was reversible error. The first question and answer were of a substantially prejudicial nature and the events therein described bore no relation to the defendant’s alleged reappearance at the prosecutrix’s home. Thus that part of the statement should not have been allowed as a foundation for impeachment. The error was compounded by the state’s failure to make any proof of the veracity of the statement after the defendant denied giving the third answer.

The judgment is reversed and the cause is remanded with directions to grant a new trial, and for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DRUCKER

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. Carl J. Fuerback, Plaintiff in Error.
    Gen. No. 50,358.
    First District, Fourth Division.
    January 14, 1966.

      Daniel C. McEachran, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Albert J. Armonda, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant, Carl J. Fuerback, was convicted of armed robbery after a jury trial and sentenced to the penitentiary for not less than ten nor more than eleven years. Defendant appealed directly to the Illinois Supreme Court which transferred this case to the Appellate Court. In his appeal defendant contends that he did not receive a fair trial, asserting first that the prosecution erroneously, over objection, introduced evidence of the defendant’s alleged participation in a crime subsequent to the offense for which he was on trial and, second, that the prosecution’s closing argument to the jury was improper.

At approximately 10:50 a. m. on March 15, 1962, defendant and a companion allegedly entered a paint store on Elston Avenue in Chicago, Illinois, and while brandishing a .45 caliber automatic took $45 from the cash register and $23 from one of two off-duty police officers who were customers therein. Defendant was arrested on March 28, 1962, and was subsequently identified in a lineup by the two officers but not by the store owner. Defendant denied committing the robbery and testified that he was with his mother in her apartment at the time of the robbery. This testimony was corroborated by defendant’s mother who stated that he did not leave the house until about noon and returned ten minutes later. In rebuttal the prosecution adduced the testimony of Abby Mueller who stated that on March 15, at approximately 11:40 a. m., the defendant and another man entered a grocery store on Wilson Avenue in which she was employed at the check-out counter, that they left and returned at five minutes after twelve and took money from the cash register at gunpoint. Upon further direct examination the witness testified in great detail not only as to what the defendant said and did during the robbery but also as to the description of the gun that was used.

The general rule, with certain exceptions not pertinent in this case, is that in the prosecution of a crime evidence of a separate and distinct crime allegedly committed by the defendant is not admissible. People v. Cordes, 391 Ill 47, 62 NE2d 465. In that case the defendant was charged with assault with intent to commit rape but offered an alibi as to his whereabouts at the time of the crime. The prosecution adduced the testimony of a rebuttal witness who stated that in the vicinity and at the approximate time of the crime in question the defendant “asked her if she wanted to have sexual intercourse and that she observed his trousers were open in front and his private parts exposed.” The court held that the portion of her testimony which tended to show that the defendant was in the vicinity at the time of the crime was admissible to rebut his alibi but that the evidence of the vulgar remarks and his indecent exposure was prejudicial and not admissible. The court stated at page 50 that:

It is immaterial whether such evidence be considered as tending to establish an offense separate and distinct from the one charged in the indictment or as tending to discredit him and cast suspicion upon his conduct and morals. It was not admissible in either event. It was separate and distinct from the offense charged, unrelated thereto and was not part of the res gestae.

In the instant case the scope of the testimony of Abby Mueller was not limited to rebutting the defendant’s alibi that he was at his mother’s apartment until noon on the day of the robbery. Though her testimony that the defendant was in the grocery store at approximately 11:40 that morning and again shortly after noon was proper since it did rebut his alibi, the admission into evidence of that portion of the witness’ testimony relating the details of the defendant’s alleged participation in a crime separate and distinct from that for which he was being tried was prejudicial error. Even the trial judge, in his consideration of this case, gave considerable weight to the prejudicial portion of Abby Mueller’s testimony. Before pronouncing sentence he stated:

You held up two policemen, you left there, you held up a store. That was the same day. Pursuing that course of conduct you would either kill somebody or be killed yourself. You are not only a menace to yourself and your family but you are a menace to society.

Defendant also asserts that prejudicial error was committed because of the impropriety of the following statement by the prosecuting attorney in his reply to defendant’s closing argument to the jury: “Well, I don’t know whether he [defendant’s counsel] knows it or not, but if Mr. Flynn [the prosecuting attorney, referring to himself] did not think this fellow was guilty he would have nolled [sic] the case.” There was no reference to any evidence upon which that opinion was based. The Illinois Supreme Court has repeatedly held that it is improper for the prosecuting attorney to state his own individual opinion or belief of the defendant’s guilt. People v. Provo, 409 Ill 63, 97 NE2d 802; People v. Hoffman, 399 Ill 57, 77 NE2d 195. It also violates the Canons of Ethics (Canon 15 of the Canons of Professional Ethics of the ISBA and the CBA). The comment in question was improper and constitutes prejudicial error.

Also in his closing argument the prosecuting attorney raised an adverse inference from the defendant’s waiver of an opening statement. Speculating upon the reason for that waiver he stated:

It is very interesting. The defense waives. Well, we want to keep the defense loose so we can run here or run there, it depends on how the evidence is going to go.
The defense waives. What did they have to hide ? This unforgettable day that they all know so much about, why couldn’t they have told you about it in the opening statements? Why? You know why.

The purpose of an opening statement on behalf of a defendant is to apprise the jury of the nature of the defense and the evidence that is to be offered to sustain it. Since the opening statement is not evidence nor is it binding on the defendant, it bears no relationship to the merits of any defense that is to be interposed and a waiver of the right to make that statement cannot raise any adverse inferences against the defendant. In People v. Church, 366 Ill 149, 7 NE2d 894, the court held that it was improper for the prosecuting attorney to state in his closing argument to the jury that the People had been placed at a disadvantage because the defendant waived her right to make an opening statement. The court stated at pages 159, 160 that “these remarks were improper, because the defendant was not bound to state in advance what defense the testimony of her witnesses would tend to prove.” Since the remarks by the prosecution in that case were improper we can only conclude that the invidious references to the defendant’s waiver of an opening statement in the instant case were prejudicial.

We find that the defendant did not receive a fair trial and therefore this cause is reversed and remanded for a new trial with directions to proceed in a manner not inconsistent with this opinion.

Reversed and remanded with directions.

ENGLISH and MCCORMICK, JJ., concur.


text:
    People of the State of Illinois, Defendant in Error, v. Jack Landis, Jr., Plaintiff in Error.
    Gen. No. 50,492.
    First District, Fourth Division.
    January 14, 1966.

      Philip M. Sullivan, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was indicted for the crime of robbery (Indictment No. 62-855) and in a separate indictment (No. 62-856) was charged with aggravated kidnaping and attempted rape. He changed his plea of not guilty to guilty on the robbery indictment and was sentenced to not less than five nor more than ten years in the penitentiary. He was tried by the court and found guilty on the second indictment and sentenced to not less than five nor more than twenty years,' the sentences to run concurrently. Defendant sued out a writ of error in the Supreme Court and the case was transferred to this court.

As to the robbery charge defendant contends that the court accepted the plea of guilty on May 14,1962, without complying with the standards set forth by statute (Ill Rev Stats 1961, c 38, § 732) and by Rule 26(3) of the Supreme Court in that nothing was said about (1) the maximum sentence which could be imposed; (2) the nature of the crime charged and (3) defendant’s right to a jury trial.

The actual admonishment by the court was:

Mr. Landis, when you plead guilty to a charge such as this, the Court may sentence you to a term in the penitentiary in excess of one year. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: I take it you are pleading guilty
to the charge of robbery because you did in fact rob this woman?
THE DEFENDANT: Yes, sir.

The court’s failure to apprise the defendant of his right to a jury trial is not error when defendant pleads guilty. People v. Outten, 22 Ill2d 146, 174 NE2d 685. The sufficiency of the admonishment to the defendant is governed by the recent Supreme Court decision in People v. Mackey, 33 Ill2d 436, 211 NE2d 706. The defendant in that case pleaded guilty to two indictments charging him with rape and five indictments charging him with armed robbery after an admonishment by the court as follows:

Now, Mr. Mackey, these eight indictments remaining they all either charge rape or robbery and, the Court may sentence you in each of those cases to a term in the penitentiary of more than one year. You understand that this is the penalty provided bylaw?

To this question the defendant answered: “Yes, sir.” The court held the admonishment to be insufficient, stating at page 438 that:

Such an admonition clearly did not apprise the defendant of the “punishment fixed by law” for the crimes of rape and robbery. Defendant’s response that he understood he could be sentenced to a term of “more than one year” in the penitentiary also falls far short of the showing required by [Supreme Court] Rule 26.

Accordingly, we conclude that the admonishment to the defendant in the instant case was insufficient and therefore it was error for the trial court to accept and enter defendant’s plea of guilty to robbery.

We next consider defendant’s contention that he was not proved guilty beyond a reasonable doubt of aggravated kidnaping or attempted rape as charged in separate counts under Indictment No. 62-856. The complaining witness, Mrs. Kinney, testified substantially as follows:

On February 28, 1962, I had occasion to see the defendant.
I left my husband in Wesley Hospital about seven o’clock that evening, took the Outer Drive south to Hyde Park shopping center and went into the drug store there. When I came out about a quarter of eight I got into my car. Before I could start the defendant opened the door on the driver’s side, thrust a gun at me and told me to move over or he would blow my head off. I moved across to the passenger’s side and he got in. He told me he wanted to get away from the neighborhood and go to the nearest bus stop. He drove over to Stoney, swung through the park going west and eventually got to Drexel and drove north to 47th Street. I pointed out that the El was an excellent place to get transportation, but he drove past and circled around north and east so that it came to a stop underneath the El around 49th Street. At this time he told me that I would be a fool to believe all he wanted to do was to get away from the area. He forced me to get into the back seat of the car and he followed. After some time he stepped out of the car. He took twenty or twenty-five dollars from me. When he got back in the car he beat me around the face and head and attempted to lift my skirt up and rape me.

Defendant testified:

I first met this lady in the evening of February 23, 1962, around the shopping center around Hyde Park. I know everything I did after I met this lady. I was running from somebody and I wanted her to drive me away from this neighborhood. I had been in a fight and somebody was after me.
I drove the car. I backed up, came out of the parking lot, went to my right, ran a stop sign and went back to the right again. I made a U-turn and ran in the park. About this time I was lost; I didn’t know where I was. I got this toy gun from some kids who were playing with it. I did not try to have sexual intercourse with this lady. I told her that I needed help. She asked me if I was going to catch the El train. I told her I needed some money. She said she had about fifteen dollars and asked me if that would help. I said yes. When she gave me the money it was $24.00, so I took advantage of the situation and went in the purse and took the rest of the change. I am positive I did not pull the lady’s dress up. I got out of the car and she thought it was a real gun that I had and slapped me several times. I did not keep her for six hours. This whole thing took place in less than an hour, less than half an hour. When she snapped the gun at me I became angry. I slapped her a couple of times and threw her down in the seat. She thought I was trying to rape her and I told her that was not my intention. I don’t have any way of knowing the correct time that I was arrested. It couldn’t have been too late, no more than about 9:30 or quarter to ten o’clock.

There must be a kidnaper before there can be an “aggravated kidnaping.” The gist of kidnaping, secret confinement, must be proved beyond a reasonable doubt. Secret confinement was discussed in People v. Bishop, 1 Ill2d 60, 64, 115 NE2d 566: Moreover, the evidence shows that defendant confined Mrs. Kinney in the car while it was parked in a secluded area underneath the “El” track. The evidence establishes the crime of kidnaping beyond a reasonable doubt.

A person forcibly confined in an automobile constantly moving from place to place may be more secretly and effectively confined from the kidnapper’s standpoint than one kept in a building or other place of incarceration. Common experience has shown that a victim and his kidnapper so situated can be most difficult to locate.

The crime of aggravated kidnaping is complete when the kidnaper inflicts great bodily harm or commits another felony upon his victim. The defendant, according to the testimony of Mrs. Kinney, forced his way into her car at gunpoint and took $20 or $25 from her. Defendant testified that she gave him $24 and then he “took advantage of the situation and went in the purse and took the rest of the change.” On cross-examination, after identifying a police officer, defendant testified: “I made an admission as to my guilt of robbery to him.” This evidence sustains the defendant’s conviction of aggravated kidnaping.

As to the count charging attempted rape the trial judge asserted: “The details of the attempted rape are not clear. It might have been otherwise, but that is only one part of the indictment. I find him gujlty of the Indictment 62-856.” Where there are multiple counts in an indictment a general finding of guilty will be sustained when the evidence sustains one count. People v. Link, 365 Ill 266, 6 NE2d 201.

The judgment and sentence under Indictment 62-855 is reversed and the cause remanded for further proceedings consistent with this opinion. The judgment and sentence under Indictment 62-856 is affirmed.

Reversed and remanded in part, affirmed in part.

MCCORMICK and ENGLISH, JJ., concur.

       Supreme Court Rule 26(3) (Ill Rev Stats 1963, c 110, § 101.-26(3)) provides in relevant part:
      The court shall not permit a plea of guilty ... by any person accused of a crime for which, upon conviction, the punishment may be imprisonment in the penitentiary, unless the court finds from proceedings had in open court at the time . . . the plea of guilty [is] entered . . . that the accused . . . understands the nature of the charge against him and the consequences thereof if found guilty. . . .

       Ill Rev Stats 1961, ch 38, §10-2(a): A kidnaper within the definition of Section 10-1 (a) is guilty of the offense of aggravated kidnaping when he:
      (1) kidnaps for the purpose of obtaining ransom, money, benefit, or other valuable thing or concession from the person kidnaped or from any other person, or
      (2) Takes as his victim a child under the age of 13 years, or
      (3) Inflicts great bodily harm or commits another felony upon his victim, or
      (4) Wears a hood, robe or mask or conceals his identity.

      Ill Rev Stats 1961, ch 38, §10-1 (a): Kidnaping occurs when a person knowingly:
      (1) And secretly confines another against his will, or
      (2) By force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will, or
      (3) By deceit or enticement induces another to go from one place to another with intent secretly to confine him against his will.


author: MR. JUSTICE BURMAN

text:
    People of the State of Illinois, Defendant-in-Error, v. Clem Johnson (Impleaded), Plaintiff-in-Error.
    Gen. No. 50,466.
    First District, First Division.
    January 17, 1966.

      Robert H. Gerstein, of Chicago, for plaintiff-in-error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for defendant-in-error.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Clem Johnson, was found guilty by a jury of attempted robbery, and sentenced to a term of five to ten years in the Illinois State Penitentiary. He contends on appeal that he is entitled to a reversal of his conviction, or in the alternative to a new trial, on the grounds that: (1) he did not personally receive a copy of the indictment until the first day of his trial; (2) he was not brought to trial within four months from the date of his arrest; (3) he was entrapped into the commission of the crime; and (4) the closing argument of the prosecution was inflammatory and not supported by the evidence.

Joseph Lorenz, a police officer assigned to the Task Force, Tactical Undercover Section, was acting as a decoy at about 3:00 a. m. on September 8,1962, in the vicinity of 63rd Street and Lowe Avenue in Chicago, where a robbery pattern had been observed. Dressed in street clothes and carrying a brown camera bag, Officer Lorenz staggered into an alley in that neighborhood, coughing repeatedly and feigning drunkenness. Other officers waited nearby in unmarked vehicles. Concealed on the person, of Officer Lorenz were a microphone and two-way radio equipment, used to communicate with the other officers. As he leaned against a wall in the alley, he was approached by the defendant and two codefendants. He told them to go away and leave him alone, which they did; but they returned shortly thereafter and the defendant said to Lorenz, “What are you doing around here?” Lorenz mumbled some words, whereupon the defendant punched him in the mouth and said, “Listen, man, I want your money.” Lorenz yelled, “Police officer!”, and defendant produced an open knife from his pocket and attacked Lorenz. A struggle ensued, in the course of which Lorenz shot the defendant in the stomach. The other officers came to the aid of Lorenz, and all three men were arrested. This version of the facts, testified to by Officer Lorenz, was substantially corroborated by other officers.

The defendant states that he did not personally receive a copy of the indictment prior to his arraignment, contrary to the provisions both of § 729 of the Criminal Code then in effect (Ill Rev Stats c 38, § 729 (1961)), and of § 113-4 of the 1963 Criminal Code (Ill Rev Stats c 38, § 113-4 (1963)). The failure to supply him personally with a copy of the indictment, taken with the fact that the indictment was not read to him at the arraignment, is alleged to deny the defendant due process and to constitute reversible error.

The record reveals that on the date of his arraignment, November 19, 1962, the defendant was represented by the Public Defender, who at that time had a copy of the indictment. He expressly waived its reading, and entered a plea of not guilty on behalf of the defendant. The defendant next appeared before the court on December 10, 1962, and requested the appointment of a “bar association lawyer” in his case. Remarks made by him on that occasion, as set forth in the supplemental record, indicate that he was aware of the nature of the charge against him. On the first day of the trial, April 18, 1963, the defendant requested and was given a copy of the indictment. His trial counsel, in response to an inquiry by the court, stated that he (counsel) had received a copy of the indictment on the date of his appointment, which was December 18, 1962. In view of these circumstances, we conclude that the failure to supply the defendant personally with a copy of the indictment before his arraignment did not prejudice his rights. His attorneys were given copies, and were thus enabled to defend him properly; and it is apparent that the defendant understood the charge against him.

Defendant next directs our attention to the fact that more than seven months elapsed between his arrest and the commencement of his trial, and contends that he is therefore entitled to a reversal of his conviction under the Fourth Term Act (Ill Rev Stats c 38, § 748 (1961)). That statute, now supplanted by Ill Rev Stats c 38, § 103-5 (1963), implemented the Illinois Constitution’s guaranty of a speedy trial (Illinois Constitution, art 2, § 9), and reads in relevant part as follows:

748. Discharge for want of prosecution. § 18. Any person committed for a criminal or supposed criminal offense and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner. . . . (Ill Rev Stats, c 38, § 748 (1961)).

The substitution of counsel for the defendant, in accordance with his request, was ordered by the court on December 18, 1962. The record indicates that on December 21, the newly-appointed counsel moved for and was granted a continuance to January 23, 1963, in order to become familiar with the case. Several continuances were granted thereafter on motions by the State or on the court’s own motion, and trial was not commenced until April 18, 1963.

The defendant argues that, taken together, the period of over three months between his arrest and his counsel’s motion for a continuance, and the further delay of almost three months after the termination of that continuance, exceed the four-month limit specified by the Fourth Term Act, and entitle him to his release. But the Illinois case law is directly to the contrary. Where a defendant requests or agrees to a continuance, it is well-established that the four-months period starts again

from the date to which the case is continued. People v. Stahl, 26 Ill2d 403, 186 NE2d 349; People v. Hayes, 23 Ill2d 527, 179 NE2d 660. Hayes involved circumstances very similar to those of the case before us. Some of the continuances in that case were for the purpose of locating a bar association attorney to replace the Public Defender as defendant’s counsel, and to allow the newly appointed counsel to become familiar with the case. The Supreme Court held that the four-month period began again upon the termination of those continuances. There, as here, the trial was commenced within four months after the termination of the continuances granted the defendant, and the Fourth Term Act was held not to have been violated. People v. Hayes, 23 Ill2d 527, 531, 179 NE2d 660.

Our attention is directed to People v. House, 10 Ill2d 556, 141 NE2d 12, and to People v. Wyatt, 24 Ill2d 151, 180 NE2d 478. These cases are readily distinguishable from the case at bar. In each, our Supreme Court, after reviewing the record, concluded that the continuance in question was actually on the trial court’s own motion, although the wording of the orders granting the continuances indicated that they were on motion of the defendants. The defendant in this case asserts that here too it was the court and the State who were actually responsible for the continuance from December 21, 1962, to January 23, 1963. There is nothing in the record, however, to support this assertion, and therefore the House and Wyatt cases are inapplicable.

It is next contended that the conviction for attempted robbery cannot be sustained because the actions of the police officer whom the defendant attacked constituted entrapment. Where, as here, the defense of entrapment is not raised at trial, it cannot be raised on appeal. People v. Redding, 28 Ill2d 305, 192 NE2d 341. Nevertheless, we have examined the record on this question, and we are satisfied that the elements of entrapment were not present. As stated in People v. Lewis, 26 Ill2d 542, 187 NE2d 700, there is no entrapment where the law enforcement officer merely provides an opportunity for the commission of a crime by one who is already so predisposed. Furthermore, entrapment can exist only when the criminal intent originates in the mind of the entrapping officer, and if such intent arose in the mind of the accused there is no entrapment, though officers may afford an opportunity for the commission of the offense and use artifice and stratagem to apprehend one actually engaged in a criminal enterprise. People v. Outten, 13 Ill2d 21, 23, 147 NE2d 284. Here, the police officer did no more than to lean against a wall, cough, and feign drunkenness. Under these circumstances, the intent to rob him originated in the defendant and his companions, and there is no entrapment.

Finally, it is alleged that remarks made by the prosecuting attorney in his rebuttal argument were so prejudicial as to deny the defendant a fair trial. Our attention is directed to a simile drawn between the defendants and a pack of wolves, preying upon a straggler from a herd of buffalo. Wide latitude is permitted counsel in closing argument. In light of all the facts we do not find that the prosecutor’s statements transcended legitimate argument. People v. Burnett, 27 Ill2d 510, 190 NE2d 338.

The judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


author: STOUDER, J.

text:
    Roger L. Monier, Plaintiff-Appellee, v. Vernon Chamberlain, Defendant-Appellant. Eugene H. Rennick, Jr., and Country Mutual Insurance Company, a Corporation, Additional Appellants.
    Gen. No. 64-79.
    Third District.
    January 14, 1966.

      Davis, Morgan & Witherell, of Peoria, for appellants.
    O. B. Pace, Jr., and Peter J. Paolucci, of Lacón, for appellee.
   STOUDER, J.

This is an appeal from an order of the Circuit Court of Marshall County finding the appellants, Eugene H. Rennick, Jr. and Country Mutual Insurance Company, a corporation, guilty of contempt of court and fining each of them $50.

Appellee instituted this action in the Circuit Court of Marshall County to recover damages for personal injuries caused by the alleged negligent operation of a motor vehicle by Vernon Chamberlain, one of the appellants. An answer to the complaint was filed by Eugene H. Rennick, Jr., attorney for Vernon Chamberlain pursuant to his employment for that purpose by Country Mutual Insurance Co., insurance carrier for Chamberlain under a liability policy containing the usual provisions including the obligation to defend the claim brought by this action. Appellee filed two motions supported by affidavits requesting that appellants Vernon ■ Chamberlain and Country Mutual Insurance Co. be ordered to produce certain documents for inspection and copying. Said appellants filed an answer and objection in opposition to the motions and after a hearing thereon an order was entered directing Eugene H. Rennick, Jr. and Country Mutual Insurance Co. to produce these documents for inspection and copying. The affidavits in support of the motion for production of documents were executed upon information and belief by O. B. Pace, Jr., one of the attorneys for appellee. These affidavits stated in substance: (1) that appellee was injured on March 20, 1960 after having been struck by a motor vehicle operated by Vernon Chamberlain resulting in injuries requiring hospitalization for several months; (2) Appellee’s injuries included loss of memory and mental impairment which continued from the date of the mishap to the date of the affidavit; (3) that because of appellee’s mental and physical condition, he was unable to recall or provide information concerning the accident, the medical treatment which he received, or the events which took place thereafter; (4) that Country Mutual Insurance Co. was the liability insurer of the vehicle operated by Vernon Chamberlain and also carried an automobile policy with medical coverage on Appellee; (5) that because Country Mutual Insurance Co. had insurance with both parties to the mishap it was able to secure statements, reports, receipts, bills and other documents from the appellee, his family, doctors and hospitals; (6) that Appellee did not employ counsel until nearly two years after the mishap had occurred; (7) that Vernon Chamberlain during a pretrial discovery deposition and on advice of his attorney, Eugene H. Rennick, Jr., refused to answer any questions concerning his insurance coverage; and concluded by incorporating by reference, a letter addressed to the attorneys for Vernon Chamberlain requesting the production of the documents later made the subject of the motion to produce, the letter being unanswered.

A supplemental affidavit was filed by O. B. Pace, Jr., as attorney for appellee, its substance being that representatives of the Country Mutual Insurance Co. had participated in numerous conversations with appellee and his family and had assured appellee and his family that no litigation would be required and in fact a settlement offer of $5,000 was made approximately six weeks prior to the expiration of the statute of limitations, said offer being refused. Subsequent thereto affiant was employed as counsel.

The order for inspection and production of documents after reciting the filing of the motion therefore is as follows; “. . . and it appearing to the court that certain of said documents and objects relate to the merits of the matter in litigation: It is therefore ordered that the Country Mutual Insurance Company, its employees and attorneys, and the defendant, Vernon Chamberlain, and his attorneys and agents, produce and permit the plaintiff to inspect, copy and reproduce the following items, documents and objects in the possession and power of the Country Mutual Insurance Company, and the defendant, Vernon Chamberlain, his attorneys and agents:

1) A copy and contents of the automobile insurance Policy No. A 434284 in force between the Country Mutual Insurance Company and the defendant, Vernon Chamberlain, on March 20,1960.

2) All medical reports, hospital records, letters of correspondence from or to all physicians, surgeons, psychologists, psychiatrists, hospitals, clinics, or other medical personnel concerning the health, physical and mental condition of Roger L. Monier from March 20, 1960, up to the date of employment of counsel for the defendant.

3) All statements made by the plaintiff or members of his family relative to the subject of litigation, whether signed or unsigned.

4) All memoranda made by personnel of the Country Mutual Insurance Company of conversations with the plaintiff and members of his family relative to the matter of litigation. „

5) All written statements of witnesses, whether signed or unsigned, obtained by agents, employees or other personnel of the Country Mutual Insurance Company obtained prior to the employment of Eugene H. Rennick, Jr., Attorney at Law, Toulon, Illinois, or Robt. A. Barnes, Attorney at Law, Lacón, Illinois, attorneys for the defendant in the cause.

6) All reports, photographs and statements obtained by agents, employees, investigators, adjusters or other personnel of the Country Mutual Insurance Company relative to or growing out of the transaction complained of on March 20, 1960, which were obtained prior to the employment of Eugene Rennick, Attorney at Law, Toulon, Illinois, and Robert A. Barnes, Attorney at Law, Lacón, Illinois, attorneys for the defendant in this cause.

7) All medical reports or memoranda concerning the health and physical or mental condition of the plaintiff, Roger L. Monier, as it existed prior to the occurrence complained of.

It is further ordered that said documents and objects be produced at the office of the Clerk of the Circuit Court of Marshall County in the City of Lacón, Illinois, on the 7th day of November, 1963, at ten o’clock a. m. and on each business day thereafter between ten o’clock a. m. and 4:30 o’clock p. m. until said examination shall be completed.”

Rennick produced the insurance policy and the limits of said policy, but filed a response to the court’s order in which he stated that Country Mutual Insurance Company did not have a statement from Roger Monier, signed or unsigned, and that the remainder of his file was in preparation for trial, and therefore privileged against disclosure. Rennick further stated that his refusal to obey the order was not malicious or capricious but because he believed the order to be invalid.

At the hearing on the contempt proceeding thereafter instituted each appellant refused to comply with the order continuing to claim that the order was invalid. From a fine of $50 for each of the appellants this appeal follows.

This appeal was originally taken to the Illinois Supreme Court but was transferred to this court because appellants have no right of direct appeal to the Supreme Court.

We believe appellants’ arguments as to unconstitutionality are without merit. Appellant does not argue that the Supreme Court rules are themselves unconstitutional but only that the order violated the constitutional requirements of due process and freedom from unreasonable search and seizure. If the order was within the intendments of the rules there is no constitutional question. If the order was in violation of these rules this alone would make it invalid and the constitutional question becomes immaterial.

Supreme Court Rule 17 on the basis of which the order below was entered, is as follows: “A party may at any time move for an order directing any other party or person to produce specified documents relating to the merits of the matter in litigation, for inspection and to be copied or reproduced, ... or disclose information calculated to lead to the discovery of the whereabouts of any of the items. On the hearing the court may make any order that may be just. If the party or person claims that the item is not in his possession or control or that he does not have information calculated to lead to discovery of its whereabouts, he may be ordered to submit to examination in open court or by deposition regarding the same.” This rule was adopted in 1956 and represented a change from the former rule in that the former listing procedure was abolished.

Rule 19-5 upon which defendant predicated his argument of privilege reads, “ (1) Matters privileged against discovery. All matters which are privileged against disclosure upon the trial are privileged against disclosure through any discovery procedure. Disclosure of memoranda, reports or documents made by or for a party in preparation for trial or any privileged communications between any party or his agent and the attorney for the party shall not be required through any discovery procedure.” This rule was intended to codify the existing law as established by court decisions and which the authors considered had previously been spelled out in part only.

Appellants claim that the order of the trial court violated Rule 17 in that the documents and material directed to be produced were not sufficiently “specified” and demanded from appellants a conclusion as to the materiality of any documents which they might be required to produce. They also argue that compliance with the order would violate section 19-5(1) as requiring disclosure of memoranda, reports or documents made by or for a party in preparation for trial. It is this argument which we shall first discuss.

This court has exhaustively reviewed all cases presented to it on the interpretation of Rule 19-5(1) as well as any additional cases which we have found. Prior to the decision of our Supreme Court in Stimpert v. Abdnour, 24 Ill2d 26, 179 NE2d 602 (decided in 1962), the decisions of the Appellate Courts afford little assistance in a general interpretation of this Rule. Each of the decisions which we have considered, dealt with a far more definitive and limited area than that which we are considering in the instant case, and in effect decided only whether a specific document was or was not discoverable in a particular circumstance. (See Hayes v. CTA 340 Ill App 375, 92 NE2d 174; Chapman v. Gulf M. & O. R. Co. 337 Ill App 611, 86 NE2d 552; People v. White 8 Ill App2d 428, 131 NE2d 803; Kemeny v. Skorch 22 Ill App2d 160, 159 NE2d 489; Haskell v. Seigmund 28 Ill App2d 1, 170 NE2d 893; and Reske v. Klein 33 Ill App2d 302, 179 NE2d 415). We are being called upon here to interpret Rule 19-5(1) in a far more general area than any previous case which has come to our attention and in so doing must be guided by previous decisions of our Supreme Court in so far as it is possible.

In Krupp v. CTA 8 Ill2d 37, 132 NE2d 532, the Supreme Court of Illinois held specifically that the names of occurrence witnesses, as distinguished from witnesses who might or would be called to testify in the cause were discoverable. The court then went on to say that the broad purpose of the discovery procedure was to deemphasize the adversary quality of litigation and reassert the higher aim of ascertaining the truth. The court there stated, “Discovery before trial presupposes a range of relevance and materiality which includes not only what is admissible at the trial but also that which leads to what is admissible at the trial. We need not now fix ultimate boundaries. It is enough for this case that the names of these persons who have first hand knowledge of the occurrence which gave rise to the action are unquestionably relevant and material.” In discussing the matter of privilege from disclosure the court went on to say that one who asserts a privilege has the burden of proving it, “his mere assertion that the matter is privileged will not suffice.” The Krupp case, supra, decided in 1956 even though limited in its application to discovery of a specific type of information, clearly indicated the intention of the Supreme Court that its Rules would, under the proper circumstances, be given a much broader application.

In Stimpert v. Abdnour, supra, the Supreme Court held that a statement of the Defendant given to and transcribed by plaintiff and his attorney, was within the purview of Rule 17 and was not .exempt from disclosure as a document made in preparation for trial. After sorting through the somewhat confusing mass of appellate decisions the court stated “While it may be possible to reconcile the holdings of the preceding cases, it would be unrealistic to contend that the interpretations of our Eule 19-5(1) are consistent in philosophy” (emphasis added). The court then added what we perceive to be its philosophy in the interpretation of its Eule. “The discovery provisions of the Civil Practice Act and our Supreme Court Eules were enacted to broaden the scope of available discovery to enhance the true function of a trial as a means of ascertaining the truth, and to provide methods (for) the prompt and just disposition of litigation . . . Our promulgation of Eule 19-5(1) was not inconsistent with this philosophy but was an effort to protect litigants from unnecessary harrassment and violations of their well recognized rights. The first and third exemptions stated in the rule merely protect from discovery matters that were privileged from disclosure upon trial at common law. The second exemption, sometimes loosely referred to as the “work product” privilege, was believed necessary to prevent complete invasion of the files of counsel. It is clear that this exemption would protect notes and memoranda prepared by counsel for use in trial (citations). As properly understood, however, this rule does not protect material and relevant evidentiary facts from the truth seeking processes of discovery” (emphasis ours). The court then held that the statement should have been produced as containing material evidentiary matters and that merely transcribing these matters should not bring them within the exemption of Eule 19-5(1). Again, the Supreme Court was deciding that a specific document was subject to Eule 17 but in so doing indicated that the intention was to broaden the application of its Eule.

Since the Stimpert case the Appellate Courts have had occasion to examine Rules 17 and 19-5(1) in People v. Ryan 40 Ill App2d 352, 189 NE2d 763; Oberkircher v. C. T. A. 41 Ill App2d 68, 190 NE2d 170; Koch v. Mettler 49 Ill App2d 251, 199 NE2d 417 and Day v. Illinois Power Co. 50 Ill App2d 52, 199 NE2d 802. In all except the Day case the decision dealt only with the attorney-client privilege. The Day case, decided June 10, 1964, is the latest we have found interpreting Rule 19-5(1). There, a gas main belonging to defendant corporation, ruptured causing injuries to plaintiff. After the explosion, employees of the defendant examined, inspected and repaired the main and made all reports directly to and under the supervision of defendant’s attorney who was retained by the corporation on a monthly basis. After deciding that the reports were not privileged as a communication between attorney and client, the court discussed the “preparation for trial” or “work product” exemption and said “Where it appears as here that one party has exclusive control over the circumstances surrounding an event and has exclusive and superior opportunity to know or ascertain the facts, we believe that good cause exists to require that party to disclose such portions of any report that might contain the statements of potential witnesses or facts personally observed by them.”

For purposes of clarification we prefer to reserve the word privilege for that part of Rule 19-5 (1) which deals with matters privileged against disclosure upon trial or as a communication between attorney and client and to use the term “exemption” for memoranda, reports or documents made by or for a party in preparation for trial. We shall consider first the exemption under the preparation for trial or work product doctrine.

Appellants clearly recognize that the order is at least partially valid. They were ordered to produce an insurance policy and did so. They were ordered to produce statements of plaintiff and stated that they had no such statements, by implication, admitting that if they did, the statements would be properly demanded.

Insofar as the order requires production of medical reports and related matter as required by paragraphs 2 and 7 of the order, we must hold that these materials do come within the purview of Rule 17 and are not exempt from disclosure. Medical reports and correspondence, as to plaintiff’s condition, by plaintiff’s own physicians all are things to which plaintiff and only plaintiff had any right in the first instance. Appellant company or any third person could acquire rights to these reports only through the consent of the plaintiff, express or implied. Defendants do not deny that they possess such reports and related matters nor do they indicate in what manner and under what circumstances they may have been acquired. Defendants do not show the circumstances of acquisition but simply state that the materials are exempt. Defendants have not met the test imposed upon them by Krupp v. CTA, supra, and without so doing may not be permitted to refuse to produce these reports and related material. We believe that plaintiff is entitled to know the contents of any medical reports or related matters which may have been given to defendants in his behalf. Nor should defendant’s argument that such information was otherwise available prevail. The facts do not show such availability through other channels but we must deem this to be immaterial. Rule 17 contains no requirement that all other avenues must be exhausted before it may operate.

We must also hold that memoranda of conversations with plaintiff must be produced. Under the ruling of the Stimpert case we can perceive of no reason for holding that the actual statement of plaintiff may be required without also holding that the memoranda of conversations from which such statement could be made must be produced.

The undisputed facts as set forth in the affidavit in support of plaintiff’s motion, namely that plaintiff has been mentally and physically incompetent since the date of the accident, compel us to hold that statements of members of plaintiff’s family or memoranda thereof as provided in paragraphs 3 and 4 of said order are properly required. It is clear from the facts disclosed by such affidavit that the exigencies arising from plaintiff’s mental and physical condition necessarily required plaintiff’s family to act in his behalf. It is equally clear that appellant company dealt with members of plaintiff’s family in their representative capacity. Accordingly we believe that statements of members of plaintiff’s family or memoranda of conversations with his family are in effect statements of the plaintiff himself and hence properly requested on the same theory that plaintiff’s statements or memoranda thereof are discoverable.

We believe that the philosophy and theory of the Stimpert and Krupp cases, supra, support the propriety of the production of the documents described in paragraph 6 of the court’s order in its application to documents other than any statement of defendant. Such documents could be independently admissible as evidence or could lead to the discovery of admissible evidence. As in the aforementioned cases the mere fact that a document was obtained or information received in the course of an investigation of an accident does not exempt the results of such investigation as being in preparation for trial. The production of the documents as provided for in this paragraph is consistent with the purposes and policies of our discovery procedure, namely disclosure rather than concealment, and in no way invades or limits the endeavors of a litigant in the preparation of his case for trial.

Although the production of the documents is proper under the reasoning above, it is also possible.in view of the uncontradicted facts in the affidavit, concerning Plaintiff’s mental and physical condition, that the production of said documents could be required by the Day case, supra, namely, as being matters peculiarly within the knowledge and control of Defendants.

To the extent that paragraph 6 of the order might include a statement of defendant, given to his insurance carrier before employment of counsel, we believe that a different principle is applicable. People v. Ryan 40 Ill App2d 352, 189 NE2d 763, holds that such a statement is not discoverable. The theory and reasoning of the Ryan case, is that a statement given to an insurance company by its insured is for the purpose of enabling the company to defend the insured under the terms of its policy and as such the company is considered an agent for transmittal of the statement to an attorney who might be employed to defend the insured. The statement is considered to be a privileged communication in the hands of the insurance company and clothed with the same exemption from disclosure as if given to an attorney directly. If, in the instant case, appellant insurance company was the insurance carrier for Defendant only the precedent of the Ryan case, would be controlling and paragraph 6 of the order would be improper in so far as it directed the production of the defendant’s statement.

However in the instant case we have an additional element namely the fact that appellant insurance company was also the insurance company for plaintiff. Its relationship to the accident and to the parties was a dual relationship resulting from policies of insurance with each party.

In Dickerson v. Dickerson 322 Ill 492, 153 NE 740, the court quotes Wigmore on Evidence, Volume 5, Section 2285 with respect to the necessary conditions upon which privileged communications are predicated as follows: “(1) The communications must originate in a confidence that they will not be disclosed; (2) the element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (3) the relation must be one which, in the opinion of the cornmunity, ought to be sedulously fostered; and (4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.”

Thus it can be seen that the essence of a privileged communication between attorney and client and likewise the basis for its exemption from discovery is its confidentiality. A disclosure which otherwise might be deemed privileged is not so privileged when made in the presence of an adverse party and his attorney. Scott v. Aultman Co. 211 Ill 612, 71 NE 1112. Where, from the nature of the communication between client and attorney, and the purpose to be served by such communication, it is evident that the parties intended such communication to be disclosed, no privilege against disclosure exists. Dickerson v. Dickerson, supra.

In the instant case, appellant insurance company under the reasoning of the Kyan Case, supra, was acting as the agent for each insured with respect to communications which it might receive from either of them. Communication by one insured was in fact disclosure to an agent for his adversary, such disclosure being compatible with, and not in opposition to, the terms of the communication. Accordingly, we hold that under these limited circumstances, logic and fair play permit and require the discoverability of the Defendant’s communication with his insurance company. Not only is such communication not confidential by its terms and the circumstances but it is also evident that confidentiality is not essential to a satisfactory maintenance of the relation between the parties. To hold otherwise would be an anomaly. The defendant might have the benefit of plaintiff’s communications with insurer but plaintiff would be denied the same benefit. To the extent that our views expressed herein are inconsistent with McKnight v. Dennis, 51 Ill App2d 403, 201 NE2d 461, we believe that the above reasoning requires a contrary holding.

The statements required by paragraph 5 of the order we must hold to be outside the scope of Rule 17 and hence not subject to discovery. Our decision is however, not based on the various exemptions as contained in Rule 19-5(1) but upon the fact that the description of the statements demanded lacks the specificity required in Rule 17. We do not intend to imply that each document sought must be specifically and in detail described but rather that the classification must be narrow enough to permit Defendant to identify a specific document as falling within it. Where a request is made for “all written statements” as ordered in paragraph 5 there is nothing therein contained which even limits such statements to the immediate cause of action.

Appellants argue that to force them to decide what is relevant and what is not makes the order invalid in its entirety. They rely on Reske v. Klein, 33 Ill App2d 302, 179 NE2d 415, where the Court did hold that an interrogatory must be so framed as to permit an answer without forcing a conclusion on the part of the witness. We submit that the Court did not intend to suggest that no conclusion at all, could ever be required. To do so would be to suggest that the names of occurrence witnesses could not be elicited since a conclusion to some extent is required. Rather we suggest that, the court in the Reske case, intended to narrow the area of conclusion which could be sought. To the extent that the order is valid and the documents required are in existence and in the possession of defendants, they should have been produced. Accordingly the judgment of the Circuit Court of Marshall County is affirmed in part and reversed in part.

We must further consider that the refusal to produce was made to test the validity of the order. Accordingly, if and when our decision becomes final and a mandate is filed in the Circuit Court of Marshall County, that court is directed to enter an order providing that appellants may purge themselves of contempt by producing the documents in question within 10 days of the filing of the mandate, in default of which the contempt order is to stand. We also believe that the court is not limited to the action already taken to secure compliance with its order but may take any other action which may be appropriate under the statutes and rules of this Court to secure compliance with such order.

Affirmed in part and reversed in part with directions.

CORYN, P. J. and ALLOY, J., concur.


author: GOLDENHERSH, P. J.

text:
    The City of Vandalia, a Municipal Corporation, Petitioner, v. Jesse Clyde Tate, Loretta M. Tate, The Shell Oil Company, a Corporation, May Zent Capps, et al., Defendants.
    Gen. No. 65-68.
    Fifth District.
    January 17, 1966.
    Rehearing denied February 5, 1966.

      Burnside & Dees, of Vandalia, for The Shell Oil Company, defendant-appellant.
    Crain & Hall, and J. Richard Royal, all of Vandalia, for petitioner-appellee.
   GOLDENHERSH, P. J.

Petitioner, The City of Vandalia, filed a petition in the Circuit Court of Fayette County, under the provisions of sections 1, 2, 4, 5, 7, 8, 9 and 10 of chapter 47, and sections 11-125-1, 11-125-2, 11-130-1, 11-130-2, and 11-130-9 of chapter 24, Illinois Revised Statutes 1963, seeking to condemn lands for the construction of a reservoir to create a supplemental water supply.

Certain defendants, not parties to this appeal, who are the fee owners of one of the tracts sought to be condemned, and defendant, Shell Oil Company, as owner of an easement over said tract, filed separate traverses seeking dismissal of the petition. The circuit court heard evidence on the traverses, found for the petitioner and against the defendants, and denied the prayer for dismissal. The court further found that there was no just reason for delaying enforcement or appeal of the order. Defendant, Shell Oil Company, appeals; no appeal has been taken by the defendant land owners.

Petitioner has filed a motion to dismiss the appeal on the ground that the order denying the traverse is merely interlocutory, does not finally dispose of the proceeding so as to give this court jurisdiction, and is not a final and appealable order. We have taken the motion with the case.

Subsequent to the entry of the above described order, petitioner amended its petition stating that it does not seek to take from defendant its interest in any easement within a 40-foot wide strip described as “20 feet on each side of the center line of defendant’s existing pipe line,” leaving defendant the right to maintain and operate the pipe line, together with ingress and egress to and from the strip so described, petitioner however, to have the right to flood and inundate so much of the 40 foot strip as will be covered by water within a high water mark 5 feet above the normal water line of the proposed reservoir.

It is defendant’s contention that the evidence shows that petitioner sought defendant’s property for purposes not authorized by the statutes under which the action was brought, and the circuit court erred in not dismissing the petition.

It is petitioner’s theory that the evidence clearly shows petitioner’s right to acquire the fee and inundate the land upon which defendant has an easement, that there is no evidence to sustain the traverse, and the order should be affirmed.

We shall first consider petitioner’s motion to dismiss the appeal. Petitioner, in support of the motion, cites Trustees of Schools of Township No. 42 v. Schroeder, 23 Ill2d 74, 177 NE2d 178, and Board of Trustees v. Timpone, 28 Ill2d 255, 190 NE2d 786.

Defendant contends that in Trustees of Schools of Township No. 42 v. Schroeder, the decision is based on the Supreme Court’s finding that, the granting of the petition for leave to appeal from the order granting a new trial did not bring up for review the issues raised by the traverse in that case, that section 50(2) of the Civil Practice Act is not involved, and the statement by the court that a ruling on a traverse may be appealed only where a final judgment fixing compensation has been entered was dicta, not necessary to the decision of the case.

As to Board of Trustees v. Timpone, defendant argues that unlike the case at bar, the trial court failed to make the finding required by section 50(2) of the Civil Practice Act, and it is clearly implied in the opinion that had such finding been made, the appeal would not have been dismissed. Defendant further urges that under Ariola v. Nigro, 13 Ill2d 200, 148 NE2d 787, the trial court is vested with discretion to determine whether an appeal must await final disposition of the case, that the trial court here, by making the finding required under section 50(2), acted within its discretion and the motion should be denied.

In the case of Davis v. Childers, 33 Ill2d 297, 211 NE2d 364 (rehearing denied November 18, 1965), the Supreme Court held an appeal was properly dismissed, even though the trial court had made the finding required under section 50(2) of the Civil Practice Act. The opinion leaves no doubt that “Where only a single claim is involved a trial court can not confer appellate jurisdiction by a finding that there is no just reason for delaying enforcement or appeal.”

The Supreme Court has held that the value of land taken in eminent domain proceedings must be valued as a whole, Chicago, B. & Q. R. Co. v. Reisch, 247 Ill 350, 93 NE 383, and the value of the land so taken cannot be increased by severance of the ownership of the interests therein, Board of Trustees v. Timpone (supra). The proper procedure is to assess the damages for the whole of the land taken and then apportion the sum so fixed, among the various interests. What petitioner sought here was the tract of land and all the interests therein, not some particular interest, such as an easement. Although the defendants are numerous, as between the petitioner and the defendants collectively, there is a single claim for relief. The division and apportionment of the condemnation award is a matter to be determined subsequent to ascertainment of the value of the tract taken, and the existence of various interests in the land does not serve to make this into a situation involving multiple claims.

We fail to see any distinction between Davis v. Childers (supra) and the case at bar. In Davis the trial court found as a matter of law that petitioner was entitled to recover, leaving as the only issue for the jury, the assessing of plaintiff’s damages. In the case at bar, by denial of the dismissal sought by the traverse, the court has held petitioner may lawfully take the tract of land, leaving for determination by a jury the amount of the award. Despite the finding of the trial court, the order is not appealable, and the appeal is, therefore, dismissed.

Appeal dismissed.

MORAN and EBERSPACHER, JJ., concur.


author: MR. PRESIDING JUSTICE BRYANT

text:
    Anthony J. Cuttone, Plaintiff-Appellee, v. Joseph T. Peters, Defendant-Deceased, and Gibraltar Insurance Company, a Corporation, Garnishee-Defendant, Appellant.
    Gen. No. 50,260.
    First District, Second Division.
    January 11, 1966.

      Erwin Cohn, of Chicago, for appellant.
    Fishman and Fishman, of Chicago. (Ronald S. Fishman, of counsel), for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This appeal comes from a judgment entered in the Circuit Court of Cook County November 13, 1964 finding for the appellee in his garnishment action against the appellant insurance company.

On January 19, 1961 an accident occurred involving the appellee Anthony J. Cuttone and Joseph T. Peters. Apparently negotiations toward a settlement between the parties proved futile and a law suit was filed January 16, 1963. On May 9, 1963, a default judgment was entered against Peters in the sum of $1,200.. (The original order showed the sum to be $200, but the court entering the. order found this to be a clerical error and corrected it in an order nunc pro tunc.) A motion to vacate this default judgment was subsequently filed on behalf of Peters by his insurance company, the appellant here, and the hearing was continued until October 21, 1968. Peters died on August 8, 1963, while the motion was still pending. When the motion to vacate was heard on October 21,1963, it was denied.

This garnishment action against the appellant insurance company was brought the next day, October 22, 1963. The appellant was duly served, and on the return day filed its answer of “no funds.” It was discharged by order of the court November 13, 1963. The following day, the court refused to grant the insurance company’s motion filed under sec 72 of the Civil Practice Act (111 Eev Stats 1963, c 110, § 72), asking that the default judgment of May 9, 1963, be set aside, and on December 6, 1963, granted a motion of plaintiff to set aside the “no funds” answer of the insurance company which was granted that same day.

Gibraltar Insurance Company then initiated an appeal to this Court seeking to set aside the default judgment which had been entered against Peters. The appeal was dismissed by this Court November 30, 1964, and a motion to set aside the order of November 30 was denied December 22, 1964. An appeal was then taken to our Supreme Court but the petition for leave to appeal was denied March 16, 1965. No supersedeas bond was filed for the appeal from the entering of the default judgment and the appellee asked that the garnishment proceed. The insurance company claims that it was not necessary to take out a supersedeas bond to prevent garnishment, but the court below ruled against this contention and ordered the cause to trial. The insurance company then filed an amended answer which claimed that the insured, Peters, had not cooperated and that, therefore, it was relieved of liability. After hearing evidence, the court below entered judgment against the insurance company.

The appellant insurance company here claims that the plaintiff must prove that the deceased insured complied with the terms of the insurance policy including cooperating in the defense of the action brought by the plaintiff. It is also claimed that a supersedeas bond is unnecessary to suspend the finality of a judgment and that the garnishment action was premature while an appeal from the default judgment was pending. Finally, the appellant claims that the deceased insured’s administrator was an indispensable party to the garnishment proceedings and that the garnishment judgment entered below is null and void.

It was admitted by the insurance company that it had issued a policy to Peters and that this policy was in effect at the time of the accident. This division held in the case of Panczko for Use of Enright v. Eagle Indemnity Co., 346 Ill App 144, 104 NE2d 645 (1952) that the burden of proof was upon the insurance company if it sought to prove non-cooperation. This also is the rule in nearly every state in the union. See Appleman, Insurance Law and Practice, sec 12277 (1962 Ed). In the case at bar, the insurance company brought forth no evidence at all which would indicate a failure on the part of the insured to cooperate. That being so, this point can offer no grounds for reversing the judgment of the Court below.

The next claim is that the garnishment action was brought prematurely because an appeal was being taken from the default judgment at that time. It is claimed that a supersedeas bond was unnecessary to prevent the filing of a valid garnishment action. The insurance company argues that garnishment is ancillary to a final, valid judgment and that while there was an appeal pending from the default judgment it cannot be said that such judgment was final. In support of this proposition it cites Ancateau v. Commercial Cas. Ins. Co., 318 Ill App 553, 48 NE2d 440 (1943). There, the insurance company filed a motion to strike the complaint in the garnishment proceeding on the ground that the suit was premature in that an appeal in the original suit was pending and that pending the disposition thereof the court could not determine whether the insured was indebted to the beneficial plaintiff or the amount of such indebtedness, if any. In that case, as in this, the appellant from the original judgment had not filed a supersedeas bond. The opinion discusses the decisions made by the courts of other states on this point and declares the general rule to be that a garnishment action is premature when there is an appeal being taken from the original judgment, even though it is being taken without the filing of a supersedeas bond. The thrust of the opinion seems to be that the insurance company was not a party to the original action and cannot, therefore, post a supersedeas bond if the defendant appeals. The court pointed to Sec 76 of the Civil Practice Act, (Ill Rev Stats 1941, c 110, § 200) and to § 32a of the Judgments Act (Ill Rev Stats 1941, c 77, § 35a) which it said were enacted for the protection of persons not parties to the suit where no supersedeas bond had been issued, and reasoned from these sections that there was a legislative policy which required the courts to protect the insurance company in the case before it.

Our research has shown us, however, that recent decisions have indicated a trend away from the philosophy expressed in the Ancateau opinion, supra. Travelers Ins. Co. v. Pinkerton-Hays Lumber Co., 120 So2d 448, (Fla 1960); Cassidy v. Southern Farm Bureau Cas. Ins. Co., 135 F Supp 757 (WD Ark 1955); Ohio Cas. Ins. Co. v. Gantt, 54 So2d 595, 6 Div 192 (Sup Ct Ala 1951); Nikkari v. Jackson, 39 NW2d 36 (Sup Ct Minn 1948). All these cases hold on facts identical with those in this action, that the garnishment action was not brought prematurely. It cannot be claimed in this case that the insurance company did not know that the action was being brought, for it was the company’s duty to bring forth evidence on this point, and as we noted above, it completely failed to do this.

After careful consideration, we feel that in this matter the interests of a plaintiff in a speedy and sure remedy must come before the interests of the insurance company. Should the underlying judgment be set aside the insurance company surely has a right of action against a plaintiff for recovery of any money it has paid. We must conclude that the opinion in the Ancateau case, supra, no longer represents the better law.

In any event, there is no appeal from the original judgment pending any longer. As was noted earlier, the appeal from the default judgment was dismissed by this Court November 30, 1964, and leave to appeal was denied by the Supreme Court March 16, 1965. We feel we cannot close our eyes to what has happened since the garnishment action was instituted, for even if there were doubt of the result in the appeal then pending that doubt has long since been extinguished. Sec 92 of the Civil Practice Act (Ill Rev Stats 1965, c 110, §92(1)(e)) gives this court the power to “give any judgment and make any order which ought to have been given or made, and make any other and further orders and grant relief . . . that the case may require.” While the appeal was pending, the court below decided that the appellee had a valid garnishment claim against the insurance company. The only change that has occurred since then is that the appeal from the judgment on which the garnishment was based has not been allowed. We cannot understand how this would work to the benefit of the appellant. Were we to set aside the judgment in the garnishment proceeding and remand the cause, the appellee would have to refile his garnishment action, the cause would go before the court below once again and he would make his findings again. It is inconceivable that when the "only change in the intervening time has been the final dismissal of the appeal from the underlying judgment that there could be anything to work to the advantage of the appellant. Assuming for the moment that the garnishment was premature, we feel that it could constitute a completely unnecessary extra step for us to set aside the judgment here and remand the cause for further action below, for nothing has happened that could change the result.

The final claim raised on this appeal is that the deceased insured’s administrator was an indispensable party to the garnishment proceedings and that such proceedings were void since he was not joined as a party. We note that when the underlying default judgment was entered against the insured he was alive. As this was the only judgment entered against the insured, we cannot see how his administrator would be an indispensable party to the garnishment proceedings. A judgment having been entered against the insured in the original action, we can see no reason why his administrator would be an indispensable party in a contest between the appellee and the insurance company. No one in the garnishment proceeding is making a claim against the estate. We have read the cases cited by the appellant and do not find them relevant to the matter before us.

For the reasons above stated, the judgment is affirmed.

Judgment affirmed.

LYONS and BURKE, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    Sylvia R. Scheinfeld, et al., etc., Plaintiffs-Appellees, v. Muntz TV, Inc., a Delaware Corporation, Defendant-Appellant. Muntz TV, Inc., a Delaware Corporation, Plaintiff-Appellee, v. Breuer Electric Mfg. Co., an Illinois Corporation, Defendant-Appellant.
    Gen. No. 50,451.
    First District, Third Division.
    January 13, 1966.

      Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (John J. Edman and Frank L. Winter, of counsel), for Muntz TV, Inc., defendant-appellant and plaintiff-appellee; Wilson & Mcllvaine, of Chicago (Clarence E. Fox, George W. Thompson, and Charles R. Staley, of counsel), for Breuer Electric Mfg. Co., defendant-appellant.
    Mitchell Edelson, of Chicago, for Sylvia R. Scheinfeld, et al., etc., plaintiffs-appellees; Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (John J. Edman and Frank L. Winter, of counsel), for Muntz TV, Inc., plaintiff-appellee, and defendant appellant.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

This case is a consolidation of two actions for unpaid rent. In the first a lessor confessed judgment against its lessee and in the second the lessee confessed judgment against its sublessee. The defendants in both actions appeal from the order denying their motions to open up the judgments. The principal issue is whether, within the framework of the following facts, the lessor had an obligation to mitigate damages.

The plaintiffs, Sylvia Scheinfeld and Rose Edelson (d/b/a Greenleaf Investors and hereinafter referred to as Greenleaf) owned a warehouse located at 1810 Green-leaf Avenue, Chicago. Oh January 30, 1956, Greenleaf leased the warehouse to the defendant, Muntz TV, Inc., for a period of 10 years. On April 26, 1960, Muntz, with the written consent of Greenleaf, sublet the warehouse at the same rental to the defendant Breuer Electric Mfg. Co. Greenleaf’s consent expressly provided that no further subletting would be permitted without its written agreement. Due to a subsequent change in its operation, Breuer’s further occupation of the premises became uneconomical ; and in February, 1964, it sought to sublet the building for the same use but for lower rental to Calumet Manufacturing Company, an apparently reputable and responsible tenant, and requested the consent'of Muntz and Greenleaf. Breuer stated that it would make up the difference in rent. Muntz agreed to the further sublease provided it was approved by Greenleaf. Upon Greenleafs refusal to accept Calumet as a sublessee, Breuer vacated- the warehouse, notified both Muntz and Greenleaf that it considered its obligations under its lease ended and requested that Muntz mitigate damages; Muntz gave the same notice and made the same request of Greenleaf as to its own lease.

Greenleaf confessed judgment for unpaid rent against Muntz and Muntz in turn confessed judgment for unpaid rent against Breuer. Both Muntz and Breuer moved to open the respective judgments. Each alleged that it had a meritorious defense because of the failure to mitigate damages and that it had been diligent in presenting its motion; each asked leave to file an answer and also sought to file a counterclaim to recover from the prime lessor and sublessor, respectively, sums deposited as security for rent. Affidavits were filed in support of the motions. The two cases were consolidated. The trial court denied both motions.

Breuer contends on appeal that the affidavits and exhibits submitted in support of its motion to open the judgment were in proper form and that the defense set forth in the affidavits and exhibits was meritorious in fact and in law. Muntz approves Breuer’s contentions but applies them against Greenleaf. Greenleaf argues that the affidavits of both defendants were deficient in form and content, stated conclusions and not facts, were not made upon the personal knowledge of the affiants and, even if accépted, did not as a matter of law state a good defense to Greenleaf’s claim for the unpaid rent.

On a motion to open a judgment by confession, facts stated in an affidavit must be taken as true; and if a defendant sets up a good defense to the whole or part of the claimant’s claim the trial court must open the judgment and set the cause for trial. Automobile Supply Co. v. Scene-In-Action Corp., 340 Ill 196, 172 NE 35 (1930); Ill Rev Stats 1963, c 110, § 101.23. A defendant’s affidavit is to be liberally construed to the end that controversies may be determined according to the substantive rights of the parties. Supreme Court rule 23 provides that an affidavit in support of the motion shall be in the manner provided by rule 15, which applies to summary judgments. Rule 15 of the Supreme Court' (111 Rev Stats 1963, c 110, § 101.15(1)) states that summary judgment affidavits shall be made upon the personal knowledge of the affiant and shall affirmatively show that the affiant, if sworn as a witness, could competently testify to the facts set forth in the affidavit.

The defendants’ affidavits were four in number and were made by the secretary of Muntz, by its attorney and by the vice president of Breuer. The affidavit of the attorney for Muntz stated explicitly that he was a competent witness with personal knowledge of the matters he alleged. It is apparent that the affidavits of the secretary of Muntz and the vice president of Breuer were based upon their personal knowledge; a reasonable inference is that, if sworn as witnesses, they could testify competently as to the asserted facts. Where it affirmatively' appears from the whole of the affidavits that the affiants would be competent witnesses, the requirement of rule 15(1) in that regard is satisfied; no express statement of the affiants to that effect is necessary. Ragen v. Wolfner, 43 Ill App2d 70, 192 NE2d 560 (1963).

In determining whether the factual allegations in the affidavits of Breuer and Muntz established a good defense we may, since the two actions were consolidated, consider all the facts submitted by both. The exhibits attached to the affidavits constitute part of the affidavits, and both the affidavits and exhibits are available to establish defenses to the judgments. Ill Rev Stats 1963, c 110, § 36. Although rule 15(1) distinguishes between conclusions and facts it does not require that the facts be set forth with evidentiary detail. We have examined the affidavits and the exhibits and we find that they contain the following data: the provisions of the Muntz lease and the Breuer sublease; Breuer’s desire to sublet because it had no further need for the premises; Breuer’s efforts to locate a subtenant ;■ the tender of Calumet as sublessee for the duration of the Breuer sublease; statements of Calumet’s business history and of the provisions of the proposed Calumet sublease indicating that Calumet would be a suitable sublessee and would use the premises for the same purpose as did Muntz and Breuer; Breuer’s continuing obligation to pay the difference between the rental called for in its lease and the rental in the Calumet sublease; Muntz’s conditional approval of the Calumet sublease; Greenleaf’s refusal to consent to the Calumet sublease only because Calumet would not pay rent approximating the rental paid by Breuer; the resulting failure of Calumet to enter into the sublease; the consequent inability of Breuer to sublease the property to anyone because of the prevailing condition of the real estate market; the repudiations of the lease and sublease by Muntz and Breuer and their requests that damages be mitigated. These are factual allegations and in that regard sufficiently comply with the requirements of rules 23 and 15.

The affidavits are not substantially deficient in either form or content and must be accepted as supporting the legal defense advanced by the defendants. Therefore, the controlling question is whether a lessor has the duty to mitigate damages if a suitable subtenant is secured and tendered by the lessee.

The same question was before this court in the case of Wohl v. Yelen, 22 111 App2d 455, 161 NE2d 339 (1959). There, as here, the lease provided that the tenant was not to sublet the premises without the written consent of the landlord. Before the expiration of the lease the tenant abandoned the premises and tendered a suitable subtenant to. the lessor. The lessor refused to accept the subtenant and confessed judgment for the unpaid rent. The tenant moved to open the judgment and submitted an affidavit which set out the lessor’s refusal to accept the subtenant and to mitigate damages. The trial court denied the motion and the tenant appealed.

This court thoroughly reviewed the Illinois decisions bearing on the duty to mitigate damages, including those on which Greenleaf relies, and found them in conflict and the law unsettled. It would serve no purpose to analyze these cases again. We also found the same conflict in other jurisdictions, with the majority against requiring mitigation in lease contracts and the minority applying a rule of mitigation similar to that used in other contracts. We examined the objections generally raised to mitigation and found them inapplicable to the facts at hand. We held that the duty to mitigate damages applied to lease contracts and concluded that the trial court erred in denying the tenant’s motion to open judgment.

Greenleaf urges us to disregard our decision in Wohl v. Yelen first, because we also held in that case that the landlord had waived the prohibition against subleasing the premises and that the prohibition once waived ceased to exist as one of the provisions of the lease; second, by asserting that no consideration was there given to the principle that a lease as a conveyance of an estate in land requires the lessee to pay the rental whether or not he occupies the premises; and third, by asserting that we did not consider the argument (made in this case) that the general obligation in the law of contracts to mitigate damages has no application to a lease absent a mandatory provision therein requiring the landlord to relet the premises.

There were two reasons for our decision in Wohl v. Yelen: one was the waiver by the landlord of the restriction against subleasing, but the other was the landlord’s duty to mitigate damages when tendered a suitable sublessee. Our decision was based on these alternate grounds and neither ground can be regarded as obiter dictum. Flug v. Craft Mfg. Co., 3 Ill App2d 56, 120 NE2d 666 (1954); Larson v. Johnson, 1 Ill App2d 36, 116 NE2d 187 (1954).

In reaching our decision we rejected the contention that a defaulting lessee’s obligation to pay the full rental is absolute whether or not he occupies the leased premises, where the lessee tenders a suitable sublessee and thus raises the landlord’s duty to mitigate damages. Invocation of the principle that a lease is a conveyance of an estate in land does not impeach the duty. On the contrary, application of the mitigation of damages rule is consistent with the landlord-tenant relationship; for example: the property gelations between Greenleaf and Muntz and between Muntz and Breuer would not have been affected had the Calumet sublease been consented to; Greenleaf could still have looked solely to Muntz and Muntz solely to Breuer for performance of the covenants of the lease and sublease. Moreover, since Wohl v. Yelen holds that a condition precedent to the landlord’s duty to mitigate is the -tender to him of a suitable tenant as sub-lessee, there is no possibility that the landlord’s actions might be taken as an acceptance of the lessee’s abandonment of his estate in land or a termination of the landlord-tenant relationship.

The argument that the landlord’s duty to mitigate arises only if the lease so provides, is relevant where the provisions of the lease cover the landlord’s duty to mitigate damages; where, however, there is no provision in the lease expressing the intent of the parties on this specific subject matter, it is the law of contracts which implies that duty. Brant v. Gallup, 111 Ill 487, 53 Am Rep 638 (1885); cf. Kelly v. Chicago Park Dist., 409 Ill 91, 98 NE2d 738 (1951), and Hill v. Bell Discount Corp., 39 Ill App2d 426, 188 NE2d 517 (1963). Since neither the prime lease nor the sublease in the instant case provides that the respective landlords shall have no duty to mitigate damages, this'court would not be eliminating any of the express provisions of either lease in applying the mitigation rule.

We reaffirm, therefore, our holding in Wohl v. Yelen that the contractual rule compelling mitigation of damages applies to leases. In doing so we emphasize that the validity of the provisions of the lease and sublease in the present case prohibiting assignment and subletting without the landlord’s consent and giving the landlord the option to rerent on such terms as he sees fit, is not in question. We do not mean that the landlord must accept any subtenant submitted by the lessee, that he must grant a new lease to the proposed subtenant, that he must release the lessee from further responsibility for rent or that he must rent his property for a purpose which might damage it. The landlord’s duty to mitigate damages does not prevent him from exercising his choice of tenants in rerenting the premises. But when the duty to mitigate is raised by the tender of a suitable sublessee, the option of the landlord lies between consenting to the sublease or crediting the tenant with the amount which would have been paid by the sublessee had he been accepted. The landlord may not arbitrarily reject a suitable sublessee and yet continue to hold the tenant liable for the whole rental in default. Thus, in the case at bar, Breuer should be credited on its indebtedness to Muntz with the rental it could have received from Calumet, and Muntz should receive like credit on its indebtedness to Green-leaf, if it is established that Calumet would have been a reputable and responsible tenant.

Although there are some minor differences in the provisions of the Greenleaf-Muntz lease and the Muntz-Breuer sublease and some variations in the affidavits and exhibits accompanying the Muntz and Breuer motions, the factual situations of Muntz and Breuer are alike and their legal positions as defendants are identical. Muntz’s legal position as the lessee of Greenleaf is the same as that, of Breuer as the sublessee of Muntz; on the other hand its legal position as sublessor to Breuer is identical with that of Greenleaf as lessor to Muntz. If Muntz is not'entitled'to judgment against Breuer,. then Greenleaf is not entitled to judgment against Muntz. There is no reason why Muntz should pay all the rental called for in the Greenleaf-Muntz lease if Breuer does not have to pay all the rental called for in the Muntz-Breuer lease. While Muntz did not offer Calumet to Greenleaf as its own subtenant, it approved of Calumet as Breuer’s subtenant, conditioned its approval, as it had to, upon the approval of Greenleaf and urged Greenleaf to accept Calumet as Breuer’s subtenant. It was unimportant to Greenleaf whether Calumet was to be a sublessee of Breuer or a sublessee of Muntz for in neither event would there be privity of contract or privity of estate between it as prime lessor and the sublessee. Either way Greenleaf would have had a right of action only against Muntz.

Under the factual situation confronting Muntz there was no need for it to take a firm position either as lessee or sublessor when to have done so before the legal issue in the case was determined would have been inimical to its interests. It could have been unreasonably jeopardized, depending upon the ultimate decision in the case, if it were forced to align itself irrevocably with either Greenleaf or Breuer. Muntz was caught between them and the duality of postures assumed by it in the trial court was not only prudent but was tenable and legally permissible. While it could have proceeded by way of declaratory judgment, the. remedial procedure chosen was not incorrect. Neither Greenleaf nor Breuer has been prejudiced by the course chosen by Muntz, and Muntz is not estopped from benefiting from the reversal of the Greenleaf judgment because it obtained a judgment against Breuer.

The order denying the motions of Muntz and Breuer to open their respective judgments and to file their answers and counterclaims is reversed. The cause is remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.

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


author: PRESIDING JUSTICE ABRAHAMSON.

text:
    Woodstock Tower Finance Corporation, Plaintiff-Appellant, v. John J. Wilson, Sr., and Marie H. Wilson, Defendants-Appellees.
    Gen. No. 65-86.
    Second District.
    January 17, 1966.
    Red-man & Shearer, of St. Charles, for appellant;
    Willard J. Stepek, of Crystal Lake, for appellees.
   Opinion by

PRESIDING JUSTICE ABRAHAMSON.

Not to be published in full.