author: Mr. PRESIDING JUSTICE DRUCKER

text:
    Naomi Pauline Klein, Plaintiff-Appellee, v. The City of Chicago et al., Defendants—(The City of Chicago, Defendant-Appellant.)
    (No. 55192;
    First District (Fifth Division)
    February 16, 1973.

      Rehearing denied March 23, 1973.

      Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan, Edmund Hatfield, and Harvey N. Levin, Assistant Corporation Counsel, of counsel,) for appellant.
    Herbert F. Stride, of Chicago, (William J. Harte and Kevin M. Forde, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff, in a bench trial, was awarded a judgment of $77,766 against the City of Chicago for injuries sustained from a fall caused by a defectíve sidewalk. The City’s third party complaint against Standard Oil was dismissed and no appeal has been taken from that order.

The City appeals from the judgment contending that: (1) plaintiff failed to comply with the notice requirements of Section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1969, ch. 85, par. 8 — 102); and (2) the judgment was against the manifest weight of the evidence.

On the afternoon of June 19, 1968, plaintiff and her daughter, Mrs. May McKinney, were walking south on the east side of Western Avenue. They reached the intersection of Blue Island and Western Avenues and stopped for a red light, intending to cross to the west side of Western Avenue. When the light changed, they started to cross the street. However, as plaintiff began to move, she stepped into a hole in the sidewalk causing her to fall. Plaintiff’s daughter lived in an apartment almost directly opposite the scene of the fall, on the west side of Western Avenue, about four buildings to the north of Blue Island. When plaintiff fell, her daughter left her in the care of a woman who had been walking behind them and proceeded across the street to her apartment. An ambulance was summoned. Plaintiff’s son-in-law went to the intersection, carrying a chair. He placed plaintiff in the chair and waited for a fire department ambulance to arrive. As a result of the accident plaintiff fractured the right femur and is now confined to a wheelchair.

Plaintiff filed notice with the City on August 14, 1968, as required by Section 8 — 102 of the Tort Immunity Act. Ill. Rev. Stat. 1969, ch. 85, par. 8 — 102. The City contends that the notice was defective because it contained an inaccurate description of the location of the accident. With respect to the location, the notice stated:

Place of Accident:
At or near Blue Island Avenue and Western Avenue. 50' E. of a sightline for East curb of Western Avenue. 19T0" N. of a sightline for North curb of Blue Island Avenue.

The notice also stated:

“Description of Occurrence:
Claimant was pedestrian who tripped and fell on defective sidewalk.”

Plaintiff, her daughter and son-in-law testified that the accident occurred about three to five feet from Western Avenue and not 50 feet, as stated in plaintiff’s notice. Thus “50” could possibly have been a typographical error intended to read “5.”

The City called one Alphonse Gorski, an employee of the City of Chicago Corporation Counsel, who testified that he was familiar with the intersection of Blue Island and Western Avenues and that the condition of the comer in May 1970 was about the same as in June 1968, and that he did not recall seeing a hole at the intersection. Two fire department ambulance drivers testified that they picked up the plaintiff on the west side of Western Avenue whereas plaintiff and her daughter and son-in-law had testified that she was on the east side of the street. The City also called one of the investigators for the Law Department of the City who had examined the site of the accident on May 14, 1970. At that time he made a diagram of the area of the intersection which contained an area of broken sidewalk. He identified that defect as the same defect depicted in plaintiff’s photographs as the situs of the accident Finally, the City introduced a letter from plaintiff’s orthopedic surgeon, Dr. Vachout, addressed to her attorney, which stated:

“This patient was first seen by me at St. Anthony’s Hospital on June 20, 1968, with the history of having injured herself when she slipped from a curb, sustaining injuries to the right upper thigh.”

The doctor also testified that plaintiff’s osteoporosis (soft bone tissue) could have made it possible for plaintiff’s fracture to have occurred spontaneously just from the pressure produced by stepping off of a curb. Opinion

The City first contends that the notice was not in compliance with Section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act since it was misleading and prevented the City from effectively investigating the claim. Indeed, the City argues that it was so misled that it believed the accident occurred on the driveway of the Standard Oil service station at Blue Island and Western Avenues and thus named Standard Oil of Indiana as a third party.

The purpose of Section 8 — 102 is to furnish the municipality with timely notice so that there can be a prompt investigation of the accident and a settlement of meritorious claims. (King v. Johnson, 47 Ill.2d 247, 265 N.E.2d 874.) The notice is sufficient if it directs the attention of city officials with reasonable certainty to the place of the accident. (McComb v. City of Chicago, 263 Ill. 510, 105 N.E. 294.) In McComb the City was deemed to have received adequate notice when the notice merely stated that the accident had occurred “at or near the comer of 39th Street and Kimball Avenue.” See also Reynolds v. City of Tuscola, 48 Ill.2d 339, 270 N.E.2d 415.

Plaintiff in the case at bar made a good faith effort to comply with Section 8 — 102 by filing her notice within two months of the accident. If plaintiff had not specified the measurement of the situs but relied on the first sentence of her statement, e.g., “At or near Blue Island & Western Avenue,” the notice would have passed muster under the above cases. We do not believe that the erroneous measurement statistic, under the facts of the present case, should bar a meritorious claim. The City argues that to uphold the present notice would require the City’s investigators, once they initially failed to find the defect at the precise location designated in the notice, to search in a circle of ever increasing radius. We disagree. The notice statement, in that portion which describes the nature of the accident, states that the plaintiff was a pedestrian walking on the sidewalk. The investigators need only to have looked at the sidewalk near the location, not the entire area of a circle having a 45 foot radius. It would not have required great diligence by the City investigators to have examined the sidewalk on either side of the specified measurements in the notice once they discovered that they placed the injury in the middle of a gas station driveway, not a sidewalk; that no defects were present in the driveway; that the City did not own the driveway; and that the City and not the service station had been given notice of an impending suit. These factors would indicate the need for further investigation. As stated in Bryant v. City of Chicago, 319 Ill.App. 524, 49 N.E.2d 654: “We will not assume investigators of the City are dull and inefficient.”

A municipality is entitled to a notice that supplies sufficient information to fulfill the purposes of Section 8 — 102 set forth above. However, in the case at bar we believe that the City urges too rigid a function and too rigid a test on notices. As stated in Reule v. City of Chicago, 268 Ill.App. 266, 272, where the notice referred to the wrong corner of an intersection, but was upheld:

“It was not intended that such a notice should serve to entrap the plaintiff who had a meritorious cause of action if it was sufficiently definite to give the City notice as to where the accident happened.”

We think that the proper test was set forth in McComb at 512:

“It [the notice] does not specifically state which corner, and appellant insists the notice is too uncertain and indefinite as to the place of the accident to be a substantial compliance with the statute. It must be admitted that in this respect the notice was crudely and carelessly prepared, but if, considering the whole notice together, it gives sufficient information to the city authorities to enable them, by the exercise of reasonable intelligence and diligence, to locate the place of the injury and ascertain the conditions alleged to have existed which caused it, it is sufficient, according to the weight of the authorities, to serve the purpose for which it was required by the statute to be given.”

We find that the notice in the case at bar sufficiently meets the requirements of Section 8 — 102.

The next contention of the City is that the judgment is against the manifest weight of the evidence because of conflicting testimony. The plaintiff, 71 years of age, indicated in her deposition that the accident occurred when she was standing on the island just opposite the sidewalk where the hole was located. This was in response to two separate questions by attorneys for the City and Standard Oil. At trial she testified that the situs was on the sidewalk four or five feet from the curb. She also demonstrated some confusion as to the proper names for the curb, sidewalk and traffic island. However, both in the deposition and at trial she consistently pointed to the hole in the sidewalk depicted in her photographs showing the hole near the curb. Further, the City urges that Dr. Vachout’s testimony and the letter containing plaintiff’s statement that she stepped off the curb contradict both her trial and deposition testimony. The City also points out that two ambulance drivers testified that plaintiff was on the west side of Western Avenue and not the east side as testified to by plaintiff, her daughter and son-in-law.

These conflicts and discrepancies were matters for the trier of fact. In Upon v. Parkway Motors, Inc., 90 Ill.App.2d 426, 429, 232 N.E.2d 513, the court held:

“Our courts have held repeatedly that, in the face of contradictory testimony, the findings of fact of the trial court will not be disturbed unless clearly contrary to the manifest weight of the evidence. [Citations omitted.] In the proceedings below, the court had the opportunity to watch and listen to the witnesses, to observe their demeanor and to reflect upon their responses. That court is therefore in a far better position to determine the relative credibility of the various witnesses than is this court, whose review of the testimony is limited to reading the printed questions and answers.”

We find that the judgment is not against the manifest weight of the evidence.

The judgment is affirmed.

Affirmed.

ENGLISH and LORENZ, JJ., concur.

       § 8-102. Notice of injury
      Within 6 months from the date that the injury or cause of action, referred to in Sections 8-102 and 8-103, was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, must personally serve in the Office of the Secretary or Clerk, as the case may be, for the entity against whom or against whose employee the action is contemplated a written statement, signed by himself, his agent or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident and the name and address of the attending physician, if any.

       Plaintiff’s original exhibits were not filed in this court by appellant. Upon our request copies of these exhibits were filed but none of them contain the markings to which witnesses testified.


source: Caselaw Access Project

author: Mr. JUSTICE McNAMARA.

license: Public Domain

text:
    Theodore Zelinka et al., Plaintiffs-Appellants, v. The City of Chicago et al., Defendants-Appellees.
    (No. 55993;
    First District (3rd Division)
    October 5, 1972.

      Rehearing denied March 23, 1973.

    Daniel L. Houlihan, of Chicago, for appellants.
    Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Thomas J. Cachor, Assistant Corporation Counsel, of counsel,) for appellees.
   Opinion by

Mr. JUSTICE McNAMARA.


author: Mr. JUSTICE GOLDBERG.

text:
    Eric Forssen, Plaintiff-Appellant, v. Duane H. Rieke, Defendant-Appellee.
    (No. 56026;
    First District (1st Division)
    February 26, 1973.

      Rehearing denied March 26, 1973.

    Louis G. Davidson, of Chicago, (Robert B. Patterson, of counsel,) for appellant.
    John T. Burke and Tom L. Yates, both of Chicago, (Robert Guritz, of counsel,) for appellee.
   Opinion by

Mr. JUSTICE GOLDBERG.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Valentine, Defendant-Appellant.
    (No. 55401;
    First District (3rd Division)
    February 22, 1973.

      Rehearing denied March 27, 1973.

    Gerald W. Getty, Public Defender, of Chicago, (James J. Doherty and Stanley Sacks, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James Staruck, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


author: Mr. JUSTICE ENGLISH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leroy Hairston, Defendant-Appellant.
    (No. 57360;
    First District (5th Division)
    February 9, 1973.

      Rehearing denied March 29, 1973.

      Marshall Patner, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Stephen J. Connolly, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

OFFENSE CHARGED

Murder (two counts). Ill. Rev. Stat. 1967, ch. 38, par. 9 — 1 and par. 9 — 1 (a — 2).

JUDGMENT

After a jury trial, defendant was found guilty and sentenced to a term of not less than 75 nor more than 150 years.

CONTENTIONS RAISED ON APPEAL

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

2. The Illinois alibi statute is unconstitutional.

3. Defendant was wrongfully denied a change of venue.

4. Defendant was deprived of his right to a fair trial in that:

(a) evidence of gang membership was wrongfully admitted;
(b) evidence of a relevant nature was wrongfully restricted in two specific instances;
(c) evidence of an emotionally inflammatory nature was wrongfully admitted.

5. Defendant’s constitutional right against self-incrimination was violated.

6. The trial court’s supplemental charge to the jury was prejudicial to defendant.

7. Defendant was not proved guilty beyond a reasonable doubt.

EVIDENCE

For a detailed recital of the evidence in this trial, we refer to our opinion in People v. Ephraim, 133 Ill.App.2d 310, 273 N.E.2d 225. As to this defendant, however, we make particular note here that he was unequivocally identified by three eyewitnesses whose testimony in that regard was unshaken on cross-examination. Two saw him point a gun out the right front window of a passing car and fire it five or six times, killing the deceased and wounding another youth, both of whom were standing with the witnesses on the sidewalk. After the shooting, the three witnesses gave chase in their own car with its bright lights on. In the course of turning comers to the right, all three positively identified defendant as sitting in the right front seat of the get-away car which they were unable to catch. One of the identifying witnesses had known defendant for five years and had talked to him the day before in negotiations looking toward a peace treaty between the Falcons (to which the witness belonged), and the Blackstone Rangers (to which defendant belonged). Another of the eyewitnesses had known defendant for five or six years and had seen him over 1000 times.

OPINION

Defendant and his co-defendant, William Ephraim, were tried together and were both convicted of murder. Ephraim’s conviction has since been reversed because of weakness in the evidence relating to his identification. (People v. Ephraim, 133 Ill.App.2d 310, 273 N.E.2d 225.) Defendant filed this appeal in the Supreme Court which transferred the case to us.

Initially, defendant contends that he was denied his right to a speedy trial pursuant to section 103 — 5(a) of the Illinois Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 103 — 5(a)), in that the State failed to bring him to trial within 120 days from the time he filed his written demand for trial. That section provides:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, * *

Defendant, in custody continuously after his arrest, made his demand for trial on April 21, 1969. The case was continued to May 19, 1969, and then to June 9, 1969, both times on the State’s motion. On June 9, 1969, defendant made a written motion for a change of venue alleging that he could not receive a fair trial in Cook County due to prejudicial publicity in the area to which the public had been exposed by newspapers, television, and radio: In support of this motion, defendant filed an exhibit of numerous newspaper articles to demonstrate the alleged prejudice of which he complained.

Defendant urged that the motion be decided that same day, and that, if denied, the trial should commence the next day. However, the trial court took the motion under advisement and continued the case until June 20, 1969, at which time the motion was denied. The date of denial was eight days from the expiration of the 120-day period commencing with defendant’s demand for trial. The court then continued the case on the State’s motion to July 14, 1969.

On July 11, 1969, defendant made a motion for discharge for lack of speedy trial. The court, in denying the motion, ruled that the 120-day period had started over as a consequence of defendant’s motion for change of venue, holding that the motion had caused delay of the trial even though, after it had been taken under advisement for thorough consideration by the court, the motion had been denied.

Defendant cites two cases which hold that a defendant’s right to be tried within the four-month period is not to be denied if he asks for and receives a change of venue. (People v. Iasello, 410 Ill. 252, 102 N.E.2d 138; People v. Rankins, 18 Ill.2d 260, 163 N.E.2d 814.) Defendant urges that since his motion was unsuccessful, he should not be considered as having caused any delay in the court proceedings. We see no reason to make such a distinction. Defendant’s position that his unsuccessful motion caused no delay might be tenable if his motion had been one which could have been acted upon immediately and which, in actual fact, would have caused no further delay. (See People v. Markword, 108 Ill. App.2d 468, 472-473, 247 N.E.2d 914, 917.) However, the particularly lengthy motion filed in this case, being 90 pages in length, required a postponement of the trial to allow a conscientious trial judge time to give it proper and judicious consideration. This necessary delay for the trial court’s deliberations, then, was for the benefit of defendant, and was properly attributed to him.

Defendant next argues that the Illinois alibi statute (Ill. Rev. Stat. 1967, ch. 38, par. 114 — 14), unconstitutionally deprived him of his right to due process in that it required him to disclose his alibi in advance of trial, while section 114 — 9 of the Illinois Criminal Code of Procedure (Ill. Rev. Stat. 1967, ch. 38, par. 114 — 9), does not compel the State to disclose the identity of its rebuttal witnesses.

Our Supreme Court has already ruled on this issue, holding that the discovery of alibi-rebuttal witnesses would further implement the concept of a trial as a search for the truth, but that the matter was one properly to be considered by the General Assembly and not by the courts. Further, the court held that the discoverability of alibi-rebuttal witnesses was not an essential element of due process where defendant is otherwise afforded substantial discovery of prosecution witnesses, as in the case in this State. (People v. Holiday, 47 Ill.2d 300, 303-304, 265 N.E.2d 634, 635-636.) We are, of course, controlled by this holding and find that defendant was not denied due process of law by the application of the alibi-notice statute.

In May, 1969, after defendant had been in custody for 20 weeks, but before defendant’s trial, a number of anti-youth-gang articles appeared in the Chicago newspapers. These articles accused youth gangs of numerous acts of violence and suggested that the gang members were committed to slaughtering those who opposed them. The articles also made references to the campaign of the police and the State’s Attorney to “smash” such gangs. Many of the articles referred to the Blackstone Rangers as “the largest and best financed of the city’s street gangs.”

On June 9, 1969, before his trial began, defendant filed a motion (accompanied by these newspaper articles) for change of venue to another county, stating to the trial court that the deceased and certain witnesses for both the State and the defense were members of those rival street gangs which had been the target of recent adverse publicity. Defendant argued that, although he was not named personally in the articles, he would suffer from the prejudice of being associated with a gang accused of massive killing and violence. This motion was denied.

Again, on August 30, 1969, before the jury had been selected, defendant revived his motion for change of venue on the same ground and, in the alternative, moved the court to exclude all evidence of gangs and gang membership. This motion, too, was denied.

Defendant contends that the denial of his change of venue motions was erroneous and prejudicial in that section 114 — 6(a) of the Illinois Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 114 — 6(a)) provides:

“A defendant may move the court for a change of place of trial on the ground that there exists in the county in which the charge is pending such prejudice against him on the part of the inhabitants that he cannot receive a fair trial in such county.” (Emphasis added.)

The fact that there is potentially harmful publicity within a community does not establish proof of community prejudice, as each case must be judged on its own facts. (People v. Gendron, 41 Ill.2d 351, 354-355, 243 N.E.2d 208, 211, cert. den. 396 U.S. 889.) In People v. Berry, 37 Ill.2d 329, 226 N.E.2d 591, where the articles of which defendant complained had set out the details of the crime and arrest and had stated that defendant was a former convict, a habitual criminal, and. a menace to society, the Illinois Supreme Court still held that there was no prejudice to defendant. In the instant case, the facts are much weaker than in the Berry case as none of the news articles in the current case referred to defendant by name, and none referred to the facts involved in the offense for which defendant was charged. We therefore find that here, too, there was no prejudice to defendant requiring reversal.

Defendant next contends that he was denied a fair trial in three specific instances. He first complains that evidence of gang membership was wrongfully admitted because no competent evidence was produced to establish his affiliation with a street gang, and because no evidence was introduced to connect gang activity with the commission of the crime.

Direct examination of the State’s occurrence witnesses established that the boys standing on the corner of 65th and University, the deceased included, were members of the Falcons, a division of the East Side Disciples. Although James Shead did not know what position, if any, defendant held within the gang, he testified that defendant was a member of the Blackstone Rangers. The further testimony of Shead disclosed that he had met with defendant the evening before the incident and had negotiated with him about a peace treaty between the East Side Disciples and the Blackstone Rangers; and that there had been “bad blood” between the rival gangs before this treaty had come about.

Such evidence, being sufficient to establish deceased as a member of the Falcons and defendant as a member of the Rangers, also established a relationship between the rival gang activity and the crime involved. In our opinion, it was therefore relevant to the issues before the court at trial and was properly admitted.

Defendant then complains that evidence of a relevant nature was wrongfully excluded in two specific instances. First, when defendant was not allowed to introduce certain evidence concerning fingerprints, and then when defendant was not permitted to question Detective Beirne concerning a “reluctant witness” whose identity was allegedly concealed from defendant.

An abandoned car which matched the general description of the car involved in the shooting (a red 1964 Chevrolet) was found in the vicinity of the crime and was dusted for fingerprints. Defendant contends that he was wrongfully denied the opportunity to introduce evidence that the prints found did not match his. The test of admissibility of evidence is whether there is a connection between the facts proved and the crime charged. (People v. Rappaport, 364 Ill. 238, 244, 4 N.E.2d 106, 109, cert. den. 300 U.S. 656.) Here, there was absolutely no evidence that the abandoned car found in the vicinity of the shooting was the same one involved in the crime. The ruling of the trial judge to exclude this evidence, then, was proper since the fact that defendant’s fingerprints were not found in the abandoned car proves nothing with respect to his guilt or innocence in this case.

There is also no merit to defendant’s contention, made in his post-trial motion, that he was denied a fair trial because the State withheld from him the identity of an additional witness whom defense counsel claimed to have seen referred to on a police report of Detective Beime as a “reluctant witness.” The trial court would not permit him to question Detective Beime concerning this unknown witness after Beime had testified on cross-examination that he had taken statements from two witnesses only (Shead and Evans), and that he had not interviewed any other witnesses. The record shows that on pre-trial discovery the State had furnished defendant with what purported to be a complete list of its witnesses. At the post-trial hearing the State’s Attorney advised the court that he had never learned of any other witness, and had he done so, he would have produced the witness even if his testimony might have proved unfavorable to the State’s case. It was therefore proper for the trial court to have prohibited any further questioning of the police officer at the trial concerning any other person referred to only by defense counsel as a “reluctant witness.”

Defendant also complains of an unfair trial due to the prejudicial testimony of the mother of the deceased. Defendant argues that he was willing to stipulate to the deceased’s identity and to the fact of his death, but that, over his objection, the trial judge allowed these uncontroverted facts to be presented to the jury by the deceased’s mother. During her testimony, she broke down and wept, and the trial court did not, as defendant requested, caution the jury against being influenced by her weeping.

In a murder trial, the State must prove that a death occurred, and although defendant can offer to stipulate to such fact, the State, during a trial on a plea of not guilty, need not enter into such a stipulation, but may, if it chooses, produce its evidence in that regard. (People v. Speck, 41 Ill.2d 177, 201, 242 N.E.2d 208, 221, reversed on other grounds 403 U.S. 946, 91 S.Ct. 2279.) The weeping of the deceased’s mother, a natural reaction to her testimony concerning her son, did not result in reversible prejudice to defendant.

Defendant next asserts that his right against self-incrimination was violated when the State’s Attorney made comments to the jury during his closing argument which reflected on defendant’s failure to testify and on his failure to present an alibi.

As to the comment on defendant’s failure to testify, the prosecutor said only that, “[You, the jury] never really had a chance to watch any defense witnesses with the exception of Mrs. Ephraim.” Such a statement is not prejudicial to defendant as it is permissible for the State to comment on tire uncontradicted nature of its evidence, “even where the only person who could have contradicted State’s evidence was the defendant himself.” (People v. Mills, 40 Ill.2d 4, 8, 237 N.E.2d 697, 700; People v. Norman, 28 Ill.2d 77, 81, 190 N.E.2d 819, 821.) We note also that defendant’s objection to this comment was sustained, and the jury was promptly instructed to disregard it.

Further in the course of his argument to the jury, the State’s Attorney commented on the fact that the only evidence as to where defendant was at the time of the crime was the testimony of the State’s witnesses. Defense counsel characterizes this comment as a reference to defendant’s failure to present an alibi, and claims that prejudice resulted therefrom. No objections were made at the time of the comments, however, and therefore the prejudice, if any, was waived. People v. Linus, 48 Ill.2d 349, 355, 270 N.E.2d 12, 15.

Defendant then argues that the trial judge erred when he gave the jury a so-called “dynamite” charge. Several hours after the jury had first retired, it returned to the courtroom, and the foreman reported that the jury could not reach a verdict with respect to one of the two defendants, without naming the defendant whose verdict was settled. Upon receiving this report, the trial judge additionally charged the jury as follows:

“All right. Let me say this to you. If you should fail to agree on a verdict the case must be retried. Any future jury must be selected in the same manner and from the same source as you have been chosen. There’s no reason to believe that the case would ever be submitted to 12 men or women more competent to decide it or the case could be tried any more better or exhaustively than it has here or any more clearer evidence could be produced on behalf of either side. I’d like you to retire and consider a verdict. Take as much time as you like.”

Defendant argues that this charge improperly affected independent jury deliberation since, inherently, the jury has the freedom to be “hung.” The usual criticism of an “Allen” charge (Allen v. United States, 164 U.S. 492, 17 S.Ct. 154), centers on language which urges those in the minority on the jury to re-evaluate their positions, giving consideration to the fact that the majority of the jury heard the same evidence, yet took a different position. It is to be noted that the instruction given in his case does not contain such language, and therefore the charge was not improper in that respect. In the recent case of People v. Prim, 53 Ill. 2d 62, the Illinois Supreme Court was confronted with an instruction containing language almost identical to that in the case now before us, and the same issue of prejudice was raised. While the court did not find the instruction entirely proper, it did conclude that its giving had not caused prejudice to the defendant.

Defendant’s last assertion is that he was not proved guilty beyond a reasonable doubt. Defendant' stresses that because “contrary and conflicting” testimony was insufficient to support a conviction against his co-defendant (see People v. Ephraim, 133 Ill.App.2d 310, 273 N.E.2d 225), then the same testimony must have been insufficient to convict him.

This contention is neither logically nor legally correct. The weak identification of Ephraim and the subsequent reversal of his conviction have no bearing on the issue of whether this defendant was adequately identified. The State produced three witnesses who knew defendant prior to the incident and who positively identified him at the scene of the shooting and during the subsequent chase. The verdict is more tiran adequately supported by the evidence.

The judgment of the circuit court is affirmed.

Affirmed.

DRUCKER, P. J., and LORENZ, J., concur.


author: Mr. PRESIDING JUSTICE BURMAN

text:
    The City of Chicago, Plaintiff-Appellee, v. Vincent Geraci et al., Defendants-Appellants.
    (No. 56883;
    First District (4th Division)
    February 21, 1973.

      Rehearing denied April 3, 1973.

      Howard T. Savage, of Chicago, for appellants.
    Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and John S. Elson, Assistant Corporation Counsel, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

This appeal involves the sale of allegedly obscene magazines. On December 5, 1969, the Circuit Court of Cook County entered judgments in 21 separate cases finding the defendants, all commercial book sellers, guilty of violating the Chicago obscenity ordinance. (Municipal Code of Chicago, 1971, sec. 192 — 9.) Each case was tried without a jury upon stipulated evidence, and each resulted in the defendant being fined. The defendants filed a consolidated appeal directly to the Supreme Court, and the Supreme Court ordered the cause transferred to this court.

The facts are the same in each case. Police Officers purchased one or more magazines from each of the defendants. The officers presented these magazines to various judges of the Circuit Court of Cook County who found probable cause for the filing of complaints and issuance of warrants for the arrest of the defendants. At trial, it was stipulated to by the parties that prior to their arrest the defendant received no notice that an arrest was to be sought, nor was an adversary hearing held for the purpose of determining whether the magazines were obscene. It was also stipulated that all of the magazines were purchased by police officers and that none of the cases involved pandering or sales to juveniles. The City introduced into evidence the magazines themselves, information pertaining to their purchase and, when such was in issue, evidence as to whether a particular defendant was aware of the contents of the magazine(s) which he sold. At the close of this evidence each of the defendants was found guilty and fined.

On appeal the defendants contend that (1) the proceedings violated their constitutional rights to freedom of speech and press because no hearing was held prior to their arrest to determine whether the magazines were obscene and (2) that the magazines in questions are not obscene and thus are protected by the United States and Illinois constitutions.

In its brief and again in oral argument the City conceded that the recent decision of the Illinois Supreme Court in City of Chicago v. Geraci, 46 Ill.2d 576, is dispositive of 16 of the cases included in this appeal. In Geraci, the defendants, some of whom are also defendants in the present case, were convicted of violating the Chicago obscenity ordinance. Involved were 17 magazines and one paperback book, all allegedly obscene. In reversing the convictions the court stated that:

“The third category of publications consists of 14 magazines which contain photographs, many in color, of completely naked female models. * * * Many of the models in these magazines appear in a reclining position on a bed or sofa, and all of them are posed seductively with their legs spread in such a way that their genitals are not only clearly revealed but are made the focal point of the photograph. Aside from the nature of the pose, however, none of the models is engaged in any explicitly sexual activity either alone or in conjunction with another person.”

46 Ill.2d at 580.

The court held that none of the magazines in the “third category" was obscene. In the present case, the following magazines are of the same type: “Exciting”; “Eurovision”, Vol. 1, No. 1; “Private Sexational”, Vol. 2; “Lovey Dovey”, Special Collectors Edition No. 3; “Tammy”, Vol. 1, No. 1; “Manon”, Special No. 9; “Zinger”, Special Collectors Edition No. 1; “Exclusive in Colors”; “Cat”, No. 1; “Garter Girls”, Vol. 3, No. 3; “Pendulum”, Vol. 1, No. 2; “Madames”; “Black and Sexy”, Special CoHectors Edition No. 1; “France”, Vol. 1, No. 2, and “Lights ’n Shadows”, No. 5. Also in this category are six photographs sold by the defendant Vincent Geraci.

As to the convictions based upon the sale of these items the City has confessed error. Accordingly, the following convictions are reversed: Vincent Geraci, cause number 69 MC1-397002; Charles Kimmel, cause number 69 MC1-397004; Charles Kimmel, cause number 69 MC1-397005; John Geraci, cause number 69 MC1-397006; Vincent Geraci, cause number 69 MC1-397007; Charles Gould, cause number 69 MC1-397008; Vincent Geraci, cause number 69 MC1-397021; Bill Maier, cause number 69 MC1-397022; Vincent Geraci, cause number 69 MC1-397023; Charles Kimmel, cause number 69 MC1-397025; Charles Kimmel, cause number 69 MC1-397026; Leo Weintraub, cause number 69 MC1-397034; Charles Gould, cause number 69 MC1-397036; Marc Lully, cause number 69 MC1-397040, and Mark Eber, cause number 69 MC1-397042.

We next direct our attention to the eight remaining publications, which the City contends are obscene. These are: “Naked”; “Tonight”, Vol. 7, No. 4; “Jaybird Journal”; “Busy Body”; “Heads Up”, Vol. 1, No. 1; “Love Birds”; “Lasses and Glasses”, Vol. 2, No. 2, and “Two”, Vol. 1, No. 1.

The ordinance under which the defendants were convicted provides that:

“It shall be unlawful for any person knowingly to exhibit [or] sell * * * any obscene book [or] magazine # * *. Obscene for the purpose of this section is defined as follows: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.”

The constitutionality of this ordinance was upheld in City of Chicago v. Kimmel, 31 Ill.2d 202. It is the contention of the City that the eight magazines in question are of the type held to be obscene as a matter of law in People v. Ridens, 51 Ill.2d 410. In describing the magazines which it found obscene, the court in Ridens stated:

“The color photographs, of which these magazines are almost exclusively composed, portray nude males and females, engaged in seductive embraces, posed with their legs spread so as to focus attention on their genitals. Although none of the models portrayed is actually engaged in sexual activity, it is clear from some sequences of photographs that sexual activity is suggested and imminent. The models in many instances have their hands, or mouths, close to another’s genitals, suggestive of abnormal sexual conduct. The females are posed with their heads close to the male sex organ, and vice versa. In some of the pictures, several of the naked males and females are photographed while lying on top of one another, and in other pictures, two females are shown suggestively embracing and fondling one male.”

51 Ill.2d at 417.

After carefully reviewing the magazines which are the subject of the present case, we agree that four of them contain material of the type described in Ridens. Therefore we hold that the magazines, “Lasses and Glasses”, Vol. 2, No. 2, “Jaybird Journal”; “Love Birds” and “Busy Body”, are obscene, and we affirm the following convictions: George. Arcuri, cause number 69 MC1-397027; James Riggio, cause number 69 MC1-397039, and Horace James, cause number 69 MC1-397041.

While the remaining four magazines are somewhat similar to those described in Ridens, we believe that they are distinguishable and therefore not obscene. “Two”, Vol. 1, No. 1, consists entirely of color photographs of nude female models posed in pairs. In some of the photographs the models are posed in such a way that their limbs or bodies are intertwined. In none of the scenes, however, is there any suggestion of sexual activity between the two persons depicted. Therefore, we believe that this magazine closely approximates those found not obscene in City of Chicago v. Geraci, 46 Ill.2d 576. “Heads Up”, Vol. 1, No. 1, consists primarily of photographs which depict the genitals of human beings alone or in juxtaposition with people or objects. Under each photo is a caption which relates to the things depicted and is intended to be humorous. As might be expected, the humor attempted is somewhat ribald; however, none of the photos suggests actual sexual conduct.

“Tonight”, Vol. 7, No. 4, and “Naked” both contain photographs of men and women in groups of various sizes. In some of these pictures the genitals are exposed and are the focal point of the scene. However, the photos are contrived in such a way that they do not suggest sexual conduct among the participants. In “Tonight” for example several sequences appear which depict a man and woman in various embraces. In all of them the man is wearing a pair of pants. “Naked” depicts a group-of men and women, all naked, frolicking on a beach and later at a party. The size of the group, as well as the nature of the surroundings, makes it apparent that sex is not imminent.

Having concluded that the last group of magazines is not obscene, we reverse the following convictions: John Trend, cause number 69 MC1397014; James Riggio, cause number 69 MC1-397038, and John Geraci, cause number 69 MC1-397003. In the last cause the defendant, John Geraci, was convicted for the sale of the magazines “Two” and “Private Sexational”. As we indicated earlier in this opinion, the City conceeded that under the holding of City of Chicago v. Geraci, 46 Ill.2d 576, “Private Sexational” is not obscene.

Finally, we turn our attention to the defendants’ contention that the City’s failure to hold a hearing to determine whether the magazines were obscene prior to their arrest deprived them of various constitutional rights. It is undisputed in the present case that no search warrants were issued and that the defendants were arrested only after they sold magazines to police officers. There was no seizure of all copies of the magazines and the defendants’ businesses were not interrupted. In People v. Ridens, 51 Ill.2d 410, our Supreme Court considered the same argument, made with respect to identical facts. It held that under such circumstances there is no prior restraint and therefore, no right to an adversary hearing on the question of obscenity prior to arrest. In view of this, we hold that the defendants in the present case were not deprived of their constitutional rights by the City’s failure to hold an adversary hearing prior to their arrest.

For the foregoing reasons the judgments of the Circuit Court of Cook County are affirmed in part and reversed in part as outlined in this opinion.

Affirmed in part and reversed in part.

ADESKO and DIERINGER, JJ., concur.


text:
    Daniel S. Welch et al., d/b/a Rand Road Development, et al., Plaintiffs-Appellants, v. Brunswick Corporation, Defendant-Appellee. Brunswick Corporation, Plaintiff-Appellee, Cross-Appellant, v. Pala, Inc. et al., Defendants-Appellants, Cross-Appellees—(Exchange National Bank of Chicago et al., Defendants.)
    (No. 56554;
    First District (4th Division)
    February 21, 1973.

      Rehearing denied April 3, 1973.

      Stansell & Rahn, of Chicago, (Kenart M. Rahn, George S. Stansell, and Joseph N. Lascaro, of counsel,) for appellants.
    Mayer, Brown & Platt, of Chicago, (George W. Hamman, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

This appeal arises out of tire creation of a bowling establishment and related businesses. On October II, 1966, Daniel S. Welch and David I. Hoffman, doing business as Rand Road Development, Not Inc., an Illinois limited partnership, and Thunderbird Bowl, Inc. (hereinafter referred to as “plaintiffs”) filed a multiple count complaint in the Circuit Court of Cook County, naming as defendant the Brunswick Corporation (hereinafter referred to as “Brunswick”). In County 1 of this complaint the plaintiffs sought a declaration of rights, reformation of certain contracts entered into with Brunswick, an injunction pendente lite to maintain the status quo and general equitable relief. In Count II they sought damages for fraud and in Count III damages for breach of warranty.

On April 17, 1967, Brunswick filed a complaint in the Circuit Court of Cook County, naming as defendants Pala, Inc., Thunderbird Bowl, Inc., La Salle National Bank of Chicago, as trustee under trust number 30288, Exchange National Bank of Chicago and John Doe. This complaint sought replevin of bowling lanes and other related equipment sold to the plaintiffs. By successive amendments four additional counts and several additional defendants were added. Count II sought damages for breach of an installment sales contract, and Counts III, IV and V sought various forms of equitable relief from the allegedly fraudulent transfer for Pala, Inc., of its real estate. The two actions were consolidated in the trial court and tried together without a jury. Judgment was entered in favor of Brunswick on all three counts of the complaint filed against it, and the plaintiffs appeal from this judgment.

In the replevin action, the court found with respect to Count I that Brunswick was entitled to possession of the bowling equipment and to damages for its detention from October 11, 1966, the date that notice demanding possession was served upon the plaintiffs. The court fixed damages at $157,456.80, using as its basis “depreciation in value during the period of detention when computed on the straight line method on a 15 year life.” The plaintiffs also appeal from this judgment. With respect to Count II, the court entered judgment in favor of Brunswick in the amount of $379,690, the balance claimed due on the installment sales contract, together with interest, attorneys’ fees and costs, less the net amount received from the sale of the equipment replevined in Count I. The court dismissed Counts III, IV and V of the replevin action, and Brunswick cross-appeals from the dismissal of Count III.

The facts leading to the controversy were carefully set forth by the trial court. Briefly summarized they are as follows. The plaintiffs are various individuals, corporations and a limited partnership whose interests are represented by and channeled through Rand Road Development, Not Inc. Daniel S. Welch and David I. Hoffman are the general partners of Rand Road Development. The limited partners include members of their respective families and unrelated investors. Thunderbird Bowl, Inc., is an Illinois corporation, all the stock of which is owned by the limited partnership. It was created for the purpose of managing the day-to-day operations of the bowling establishment. The Brunswick Corporation is a well known manufacturer of bowling equipment.

In 1958 or 1959, Daniel Welch had conversations with various representatives of Brunswick regarding the creation of a bowling facility. There was conflicting testimony as to whether these conversations were initiated by the plaintiffs or by Brunswick; however, the trial court found that ‘Welch commenced negotiations with Brunswick for the purchase of bowling equipment in approximately 1959.” At this time Welch was in the construction business and had constructed a bowling alley for others. There was a conflict as to whether Welch had any personal experience with the operation of a bowling establishment at this time, but there was evidence that a family partnership owned a small investment in the Waveland Western Bowling Alley, which had been in business for 10 or 11 years, and that Edward Welch, Daniel Welch’s brother and business partner, had been provided with detailed monthly statements of its operations.

The parties first considered a site in Rosemont, Illinois, but abandoned it because of potential competition from an existing establishment. In 1960, the plaintiffs acquired a second site in Mount Prospect, Illinois. There is conflicting evidence as to whether this site was suggested by Welch or by Brunswick. Welch executed a contract with Brunswick for the purchase of bowling equipment, but this contract was cancelled in 1961 when Welch was unable to obtain the zoning change necessary to construct the building. Shortly after this, a second site in Mount Prospect, across Rand Road from the first, was found and acquired by the plaintiffs, and negotiations began with Brunswick for the purchase of bowling equipment.

In February, 1962, Thunderbird Bowl executed two orders to Brunswick for bowling and billiard equipment. In August, 1962, Thunderbird assigned its interest in the orders to Pala, Inc., a nominee for the limited partnership. Brunswick accepted the assignment and released Thunderbird from liability on the orders. At the same time Pala entered into a conditional sales contract with Brunswick for the purchase of 36 bowling lanes and related equipment at a total price of $483,017.60. In connection with this Pala executed a conditional sales contract note in the amount of $610,042.70, which included the purchase price of the bowling equipment plus interest at six per cent. Subsequently, Pala transferred its interest in the contract to the LaSalle National Bank, as trustee under trust number 30288, another nominee for the limited partnership.

Thereafter, Rand Road Development completed construction of the building, and Brunswick installed the equipment. The plaintiffs hired Gordon MacNiven, a former Brunswick sales engineer, as general manager, and the establishment opened for business in November, 1962. During the first year of business the establishment operated at a substantial loss and did not generate sufficient cash to make the payments on the conditional sales contract. As a result of this the plaintiffs conferred with Brunswick in late 1963 about their financial condition. These conferences resulted in an agreement between Brunswick and LaSalle National Bank, the plaintiffs’ nominee, on February 28, 1964, that tire payments should be adjusted and extended. Payments under this agreement were made until March, 1966, when they were discontinued. Brunswick served a demand upon the plaintiffs for repossession of the bowling equipment, including the lanes themselves, the automatic pinsetters, billiard tables and all other items, on October 11, 1966. On the same day the plaintiffs filed their complaint, and on April 17, 1967, Brunswick filed its complaint in replevin.

On appeal, the plaintiffs contend that (1) the trial court erred in finding for Brunswick on Counts I and II of their complaint, as they pleaded and proved a cause of action for fraud; (2) that the trial court erred in finding for Brunswick on Count III of their complaint, as they pleaded and proved a cause of action for breach of warranty; and (3) that the trial court erred in awarding Brunswick damages of $157,456.80 for wrongful detention of the equipment. On its cross appeal Brunswick contends that the trial court erred in dismissing Count III of its amended complaint in that the evidence established that the plaintiffs had transferred their real estate without consideration for the purpose of impairing Brunswick’s rights as a creditor.

We first direct our attention to the plaintiffs’ contentions that the trial court erred in entering judgment for Brunswick on Counts I and II of their complaint. Counts I and II are predicated upon fraud and misrepresentation. Count I seeks reformation of the conditional sales agreement, and Count II seeks damages in the amount of $1,000,000, the amount of actual loss claimed to have been incurred by the plaintiffs.

In Illinois, the elements of fraud which will justify rescission of a contract in equity are the same as those required to sustain an action at law. (Roda v. Berko, 401 Ill. 335.) There must be a misrepresentation of a material fact, made for the purpose of inducing action. The misrepresentation must be known to be such by the party making it or not reasonably believed by him to be true. The party to whom it is made must be ignorant of its falsity, must reasonably believe it to be true, must act upon it to his damage and in so acting must rely upon its truth. Roth v. Roth, 45 Ill.2d 19; Roda v. Berko, 401 Ill. 335; Bouxsein v. First National Bank of Granville, 292 Ill. 500.

In tihe present case it was the plaintiff’s theory that Brunswick provided inflated earnings projections and misrepresented its intentions with respect to Thunderbird Bowl’s competitors for the purpose of inducing them to create a bowling establishment and to purchase approximately $500,000 worth of bowling equipment. Daniel Welch testified that during their conversations in 1961 and 1962 Brunswick representatives made numerous oral representations as to the earning potential of the proposed establishment. In March, 1962, at Daniel Welch’s insistence, these were embodied in a written earnings projection for the Rand Road facility. The written projection stated that the average bowling lineage in a Brunswick establishment was, and would be in the Rand Road establishment, 1400 lines per lane per month, or 16,800 lines per lane per year. Based upon this lineage figure the following annual revenue was projected. gross profit of $444,301; profit before depreciation, interest and rent of $276,695; net income of $66,000 and cash available for dividends, expansion or other business purposes of $177,265. At trial, the plaintiffs offered evidence to show that in fact the average bowling lineage in Brunswick establishments at this time was less than 1000 lines per lane per month and that this figure was declining in 1962.

Welch further testified that sometime in 1961, he stated to a Brunswick representative that he and his associates wanted to be certain that they would not have competition from Brunswick in the immediate area before they undertook creation of their establishment. Roger Bensinger, a Brunswick salesman, stated that Welch could rely on the assurances of both himself and his father, who was a Brunswick executive, that Brunswick would not sell to anyone else in the immediate area. The plaintiffs alleged that Brunswick knew these representations to be false, because at the time, it was negotiating with the developers of Striking Lanes, another bowling facility to be built in Mount Prospect, for the installation of Brunswick equipment. The evidence showed that Striking Lanes commenced operations on September 1, 1963, approximately nine months after the opening of the plaintiffs’ establishment, and contained 32 Brunswick lanes.

The plaintiffs alleged that because of the expertise and experience of Brunswick in the bowling field they relied upon its representations and were induced to go ahead with the creation of Thunderbird Bowl. There was uncontradicted evidence that from the date of its opening in 1962 through the end of 1966, Thunderbird Bowl earned substantially less than the amount quoted in Brunswick’s earnings projection and in fact operated at a loss. At no time during this period was Thunderbird’s net cash sufficient to make the payments on the conditional sales contract.

In defense, Brunswick offered evidence to show that Thunderbird Bowl would have been profitable had it been properly managed and that the plaintiffs did not rely upon the representations made by Brunswick in reaching their decision to proceed with the bowling establishment. Gordon MacNiver, the first manager of Thunderbird Bowl, called as a witness by Brunswick, testified that the plaintiffs originally planned to open for business in early September, 1962. The bowling season runs from approximately Labor Day to the following May, and it is essential for a profitable operation that a bowling establishment have leagues committed for weekly play. In anticipation of the prospective opening date, MacNiven solicited and contracted with a number of leagues, which would have given Thunderbird a high volume of business from the beginning. However, the plaintiffs were constructing the building with their own construction company and did not complete it until around Thanksgiving, 1962. As a result of this MacNiven was forced to advise the leagues to make other arrangements. Many of the leagues were unable to get into other establishments at such a late date, and considerable ill will was generated among potential customers.

Steven Agenlian, a subsequent manager, testified that when he arrived at Thunderbird in 1966, he found that the building was run down, the equipment in poor condition and the employees dishonest. When he corrected these conditions, business rose to a level of 12,000 lines per lane per year and was profitable. In 1967, the operation of Thunderbird Bowl was taken over by Martin Weber and his father. Weber testified that he visited Thunderbird in 1963 and 1964 and found it in very bad condition. He further testified that under his management Thunderbird is doing a business of approximately 14,000 lines per lane per year. Brunswick denied that its representatives had ever furnished the plaintiffs with a written earnings projection, but contended that even if it had the testimony of Weber indicates that the projected volume figure cited by the plaintiffs (16,800 lines per lane per year) was substantially accurate.

Gordon MacNiven, the former Brunswick sales engineer, further testified that he was hired by the plaintiffs in February, 1962, before they had signed the purchase order with Brunswick, and he had advised them thoroughly on the proposed order and the economics of the entire bowling operation. In addition to MacNiven’s testimony, Brunswick offered evidence that Daniel Welch was familiar with the operations of Waveland Western Bowling Alley, a profitable operation in which a family partnership had an interest, that he was also engaged in the construction of a bowling center in Elk Grove Village, Illinois, using AMF equipment and that he had been supplied with detailed figures for the proposed Thunderbird Bowl by AMF, all prior to signing the purchase order with Brunswick.

From the foregoing, it is apparent that the evidence is in conflict as to many pivotal questions of fact, especially as to the cause of the plaintiffs’ damages and whether they relied upon the representations made by Brunswick. It was the task of tire trial judge to resolve these questions. In the present case, the proceedings took place over a period of several months. The trial judge observed the witnesses, heard the testimony, viewed the exhibits and made careful and complete findings of fact. In such cases the judgment will be affirmed if there is any evidence in the record to support it and will be reversed only if against the manifest weight of the evidence. (Brown v. Zimmerman, 18 Ill.2d 94.) While the contentions of the plaintiffs have some force, it is our conclusion that the trial court’s findings are sufficiently supported by the record. Accordingly, the judgment in favor of Brunswick on Counts I and II is affirmed.

Count III of the complaint was predicated upon breach of warranty and sought damages for past and future lost profits. The plaintiffs allege that the representations made by Brunswick amounted to warranties that the plaintiffs would receive a certain return if they created a bowling establishment according to Brunswick’s specifications. These warranties were breached, the plaintiffs alleged, when the establishment, so constructed, failed to do the volume of business and yield the return projected. Our comments with respect to Counts I and II apply to the court’s decision in Count III as well. In addition, we note that the purchase order signed by Thunderbird Bowl, Inc., contains the following language:

“Under no circumstances shall the seller [Brunswick] be liable for loss of profits or other direct or indirect costs, expenses, losses or damage.”

Thunderbird Bowl, Inc., transferred its interest in the purchase order to Pala, Inc., which signed the conditional sales contract. The contract provides various express warranties on the equipment and further provides that:

“The above warranties [on the equipment] shall be in lieu of all other warranties, express or implied.”

The record contains ample basis for the trial court’s decision, and accordingly the judgment in favor of Brunswick as to Count III is likewise affirmed.

We next direct our attention to the replevin action filed by Brunswick against the plaintiffs. With respect to this action the plaintiffs contend that the court erred in finding that Brunswick was entitled to possession of the bowling equipment and that it was entitled to $157,-456.80 in damages. Section 23 of the Replevin Act (Ill. Rev. Stat. 1971, ch. 119, par. 23) provides that “[i]f judgment is given for the plaintiff in replevin, he shall recover damages for the detention of the property while the same was wrongfully detained by the defendant.” Our courts have held that damages awarded under this provision are intended to provide full indemnity for damage suffered. (Cottrell v. Gerson, 371 Ill. 174; James B. Clow & Sons v. Yount, 93 Ill.App. 112.) Depreciation in value of the goods between the time that the plaintiff is entitled to possess them and the time that he actually obtains possession is includible in the damages. James B. Clow & Sons v. Yount, 93 Ill.App. 112.

In the present case, Brunswick offered evidence of its damages on two theories. The first, rejected by the trial court, was the value to it of the use of the equipment, that is, the net income that it could have received had the equipment been available for lease to other operators .The second theory, adopted by the trial court, was the amount by which the equipment depreciated in value during the period of its detention by the plaintiffs. It was undisputed that the equipment has been in continuous use, either by Thunderbird or its successors, since October 11, 1966, the date that Brunswick served its demand for possession. The trial court found that the purchase price of the equipment, exclusive of interest, was $483,017.60. On the basis of a 15 year useful life the value of the equipment would depreciate approximately $32,000 per year or $157,-456.80 from October 11, 1966, to the date of judgment. Accordingly the court entered judgment for wrongful detention of the equipment in the amount of $157,456.80, with the further order that any recovery should be applied against the total demand accruing to Brunswick of $431,-187.68 together with the additional sum of $10,000 allowed for attorneys’ fees.

Section 10 of the Replevin Act (111. Rev. Stat. 1971, ch. 119, par. 10) provides that before any writ of replevin shall be executed the plaintiff shall give to the sheriff or other officer a bond in an amount double the value of the property to be seized. In compliance with this provision, Brunswick, by Edgar Vanneman, its secretary, filed a sworn affidavit, in which it described the equipment in detail and stated that “said Goods and Chattels are of the value of $74,000” and gave to the Sheriff of Cook County its bond in the amount of $148,000. In reliance upon the value set by Brunswick the plaintiffs gave a forthcoming bond in the amount of $148,000 and retained possession of the property.

On appeal, the plaintiffs contend that, having set the value of the equipment at $74,000, Brunswick should have been estopped from attempting to prove a greater value for the purpose of enhancing its damages. Under this theory the plaintiffs argue that Brunswick, as the vendor under a conditional sales contract, had only a' security interest in the replevined property and thus is entitled only to the interest on $74,000 during the period of detention, or $18,243.05. In opposition to this Brunswick contends that it was not estopped from proving a value in excess of $74,000 and relies upon Snydacker v. Brosse, 51 Ill. 357, and Farson v. Gilbert, 85 Ill.App. 364.

After carefully reviewing these authorities, we have concluded that they are inapplicable to the present case. In Snydacker v. Brosse, 51 Ill. 357, a judgment was entered against the appellee and certain property taken from her in execution of the judgment. She replevied the property, from the judgment creditors on the ground that it belonged to her husband. A trial of the replevin action resulted in a judgment for the defendants and the property was ordered returned to them. In carrying out this order, a constable broke into the appellee’s home and removed the property along with some items not part of the original execution. The appellee sued both the constable and the judgment creditors for wrongful entry into her home and for abuse of process, and the Supreme Court held that her affidavit in the replevin action that the property taken was that of her husband, did not estop her from maintaining her action for damages. This case does not involve a valuation of property set by the party seeking its possession. In addition, it is apparent from the fact that the appellee’s second action was grounded upon wrongful entry that her position with respect to the ownership of the property was not inconsistent with that in the replevin action.

In Farson v. Gilbert, 85 Ill.App. 364, the appellants as plaintiffs in a replevin action obtained possession of the disputed property, which was printing plates valued at $1100, then allowed the replevin action to be dismissed for want of prosecution. The defendants brought suit on the plaintiffs’ bond, and the plaintiffs sought to prove that the value of the property to the defendants was less than the value set by them in their replevin affidavit. The printing plates were engraved with the pages of a magazine published and copyrighted by the plaintiffs. The defendants were holders of a chattel mortgage. In holding that the plaintiffs were not estopped to contest the value of the property in the suit brought on the replevin bond, the court pointed out that the plates might have had considerable value to the plaintiffs as publishers of the magazine, but might have had almost no value to the defendants who, because of the copyright held by the plaintiffs, could have used them for little more than scrap metal. Under these circumstances the court’s ruling was correct; however, this case is entirely dissimilar from the one presently before us.

In the present case, Brunswick was in a superior position to evaluate the equipment sold to the plaintiffs and it set the value at $74,000. It is fair to assume that Brunswick concluded that $74,000 was the amount for which the property could have been sold considering the cost of detachment and removal from the plaintiffs’ premises. We agree with the plaintiffs that the original price at which the equipment was sold is irrelevant for the purpose of determining damages for wrongful detention. Under the circumstances before us, we believe that to permit Brunswick to recover damages in excess of the value stated by it in its affidavit would work a serious injustice. This is particularly trae in view of the heavy losses already incurred by the plaintiffs. We hold, therefore, that Brunswick’s recovery is limited to the interest on $74,000 during the period that the equipment was wrongfully detained by the plaintiffs, and we reduce the judgment entered in its favor from $157,456.80 to $18,-243.05. Any recovery under this judgment shall be applied against the total demand accruing to Brunswick of $441,187.68. In its complaint in replevin, Brunswick prayed that “said property [the equipment] be returned or that defendants be required to pay the value thereof, $74,000, and that defendants pay to Brunswick * * * damages * * * for * * * wrongful detention.” We further hold therefore that upon payment to Brunswick of $74,000 plus $18,243.05, a total of $92,243.05, Thunderbird or its successor will be entitled to possession of the equipment.

Finally, we consider Brunswick’s cross appeal from the dismissal of Count III of its complaint. Count III alleged in substance that the plaintiffs conveyed their real estate to a trust without consideration after they had become indebted to Brunswick for the purpose of impairing Brunswick’s rights as a creditor. The trial court found that:

“None of the transfers or conveyances alleged by Brunswick was fraudulent with reference to Brunswick, either in fact or in law; and that the real estate referred to in the pleadings is not subject to any lien, claim or demand whatsoever to secure any indebtedness to Brunswick under the Conditional Sales Contract or any other claim of Brunswick, or under the judgment order; and that none of the defendants is subject to any liability to Brunswick by reason of any of said transfers or conveyances.”

After reviewing the record we cannot say that the trial court’s findings are against the manifest weight of the evidence. In the document in which the LaSalle National Bank as trustee assumed the indebtedness of Pala, Inc., there was an express stipulation and agreement that this obligation would be payable only out of the property subject to the conditional sales contract. In addition, it is our conclusion that Brunswick, as the vendor under a conditional sales contract, was limited to its security interest in the equipment itself until such time as it obtained a final judgment against the plaintiffs. Accordingly, the trial court’s judgment dismissing Count III of Brunswick’s amended complaint is affirmed.

The judgment of the Circuit Court in case number 66 Ch-6064 is affirmed. The judgment in case number 67 L-5624 is affirmed except for that part awarding damages for wrongful detention of the equipment, which is modified as stated in this opinion. Case number 67 L-5624 is remanded to the trial court for further proceedings not inconsistent with this opinion.

Affirmed in part and modified in part. Remanded with directions.

ADESKO and DIERINGER, JJ., concur.


text:
    S. T. Enterprises, Inc., Plaintiff-Appellee, v. Brunswick Corporation, Defendant-Appellant.
    (No. 57157;
    First District (4th Division)
    February 21, 1973.

      Rehearing denied April 3, 1973.

    George W. Hamman, of Mayer, Brown & Platt, of Chicago, for appellant.
    Maurice L. Davis and Samuel S. Berger, both of Chicago, for appellee.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

The plaintiff, S. T. Enterprises, Inc., brought this action in the Circuit Court of Cook County on November 4, 1971, seeking a declaration of rights and an injunction restiaining the Brunswick Corporation from seizing certain bowling equipment of which the plaintiff is presently in possession. It was alleged that Brunswick claimed the right to possess the equipment under a judgment in its favor against Thunderbird Bowl, Inc., S. T.’s predecessor in interest, and that Brunswick intended to have the equipment seized by the Sheriff of Cook County. It was further alleged that were the equipment to be seized, irreparable injury would result to the plaintiff’s business.

A hearing was held on December 2, 1971, and a temporary injunction was entered restraining Brunswick from seizing the equipment or instituting any action in replevin for its possession. Following this, the plaintiff filed a motion for summary judgment, requesting a permanent injunction. Brunswick filed a motion to dismiss, asserting that the plaintiff had failed to establish any right to relief. A hearing was had on January 10, 1972, at which the trial court granted the plaintiff’s motion and entered an order finding that Brunswick was not entitled to possession of the equipment and permanently enjoining Brunswick from seizing it through any process issued upon its judgment against Thunderbird Bowl or from instituting any replevin action for its possession. At this hearing the court also denied Brunswick’s motion to dismiss, and Brunswick appealed.

The facts which give rise to this controversy are as follows. In 1962 Thunderbird Bowl, Inc., and other interested parties created a bowling establishment in Mount Prospect, Illinois. In connection with this, they purchased 36 bowling lanes and related equipment from Brunswick under a conditional sales contract and note. In February, 1966, payments on the note were discontinued, and shortly thereafter Brunswick demanded repossession of the equipment. At this time there was a balance due under the conditional sales contract of $379,690. In October, 1966, Thunderbird Bowl and others filed suit against Brunswick seeking damages for fraud and breach of warranty and reformation of the conditional sales contract. In April, 1967, Brunswick filed a replevin action seeking possession of the equipment and, by subsequent amendment, other relief. In its replevin affidavit Brunswick valued the equipment at $74,000. The sheriff returned the replevin writ “found”, and Thunderbird gave a forthcoming bond of $148,000 and retained possession of the equipment.

In October, 1967, while the above actions were pending in the trial court, Thunderbird transferred its interest in the equipment to S. T. Enterprises, the plaintiff herein. S. T. took possession of the equipment with knowledge of the pending litigation, that it had not been paid for and that it was subject to a recorded security interest in favor of Brunswick. S. T. has operated the bowling establishment from that date to the present.

On September 16,1971, judgment was entered in the two actions, which were consolidated for trial. In cause number 66 Ch 6064, the suit filed against Brunswick, the court found in favor of Brunswick. In the replevin action, cause number 67 L 5624, Brunswick was awarded possession of the equipment and damages for its wrongful detention in the amount of $157,456.80. Thunderbird and the other plaintiffs appealed these judgments to this court, and Brunswick cross-appealed from another portion of the judgment, which dismissed Count III of its amended complaint. We have this day rendered an opinion in that appeal, which was filed in this court under docket number 56554. We affirmed the judgment in favor of Brunswick in cause number 66 Ch 6064. In cause number 67 L 5624 we affirmed the judgment entitling Brunswick to possession of the equipment, and modified the damages awarded for wrongful detention, reducing them from $157,456.80 to $18,243.05, based upon the value of the equipment set by Brunswick in its replevin affidavit. Further details of our holdings, as well as the facts which form the background of the case presently before us may be found in that opinion.

In the present appeal Brunswick contends that (1) the judgment in its favor in the replevin action is res judicata and cannot be collaterally attacked by S. T.; (2) upon entry of a final judgment in its favor in the replevin action, the defendants must return the equipment if it is still in existence and (3) that it was error for the court in effect to force a sale of the equipment at. the replevin valuation price. In opposition to this, S. T. contends that (1) having had one judgment in replevin against its predecessor, Brunswick may not bring another replevin action for possession of the same property, but is limited to an action on Thunderbird’s forthcoming bond and (2) the present action is not a collateral attack on the judgment in the replevin action.

In view of our holding in case number 56554, we do not believe it necessary to consider these contentions. There we held that the interest of Brunswick in the equipment was that of a secured creditor and that the equipment had a value of $74,000, as declared by Brunswick in its replevin affidavit. We also held that Brunswick was entitled to $18,243.05 for wrongful detention of the equipment and that upon payment of these sums, a total of $92,243.05, Thunderbird or its successor would be entitled to possession. In the present case, S. T. is Thunderbird’s successor in interest, and upon payment to Brunswick by Thunderbird or its successor of $92,243.05 they will be entitled to possession of the equipment. In view of this, it is our conclusion that the injunction against Brunswick was properly entered and accordingly it is affirmed on the condition of payment to Brunswick of $92,243.05.

The judgment of the trial court is affirmed as modified, and the cause is remanded for further proceedings not inconsistent with this opinion.

Affirmed as modified.

ADESKO and DIERINGER, JJ., concur.


author: Mr. JUSTICE LEIGHTON

text:
    Milic Pesovic, Plaintiff-Appellee, v. Svetozar Pesovic, Defendant-Appellant.
    (No. 56478;
    First District (2nd Division)
    March 13, 1973.

      Rehearing denied April 4, 1973.

      Svetozar Pesovic, pro se.

    Edward T. Havey, of Chicago, for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This was an ejectment suit by a father, the appellee Milic Pesovic, against his son, appellant Svetozar Pesovic, in which Milic sought to evict Svetozar, his wife and their three minor children from a house in Chicago. In an answer that evinced a bitter family dispute, Svetozar interposed the defense that Milic had either made a contract to convey the house to him or had given him the house as an oral gift of land. After hearing Milic’s testimony, that of Branka, Svetozar’s wife, and receiving exhibits of the parties, the trial court ruled that Milic was owner of the house; that he had not contradicted to convey it to Svetozar nor gave it to him as an oral gift and that Milic had the right to evict Svetozar and his family. The issue in this appeal is whether the evidence in this record proved that the house had been the subject of either a contract to convey or an oral gift by Milic Pesovic to his son Svetozar.

I.

Milic Pesovic came to this country from Yugoslavia in 1950. He left a family that included Svetozar. Milic became an American citizen on June 21, 1956. In July 1957, having paid $7500, he received a warranty deed to a six-room house situated in Chicago at 10041 South Exchange Avenue.

In 1957, because of his political views, Svetozar was incarcerated in a Yugoslav prison. He escaped and became a political refugee in Greece. With the aid of the United States and Greek governments he was joined by his wife and children. Until the middle of 1959, Svetozar lived in the Greek city of Fiorina employed by the Greek army as a driver in a motor pool. Life there was good and living standards were “quite comfortable.”

Sometime during the last half of 1958, Milic Pesovic began corresponding with Svetozar urging him to come to this country with his family. In a letter written in Serbian, Milic told Svetozar that “[w]hen you come to me I will dress up and shoe you and your family. I promise you that I will buy everything you and your family need. When you arrive here to me I will need a lot of money to shelter you and your family.” In the closing sentence, Milic asked Svetozar to tell his wife and children that “* * # they will have their own home.” Earlier, to assist Svetozar in his application to immigration authorities, Milic executed an affidavit in which he said that he lived in Hammond, Indiana; that he was regularly employed by the Youngstown Sheet and Tube Company as a mechanic’s helper earning more than $400 per month; that he desired to sponsor Svetozar’s immigration from Fiorina, Greece to this country; that if an immigration visa were granted him, he, Milic, undertook to see that Svetozar would not become a public charge in this country; that he would furnish Svetozar with food, clothing and other necessities of life; that he would obtain employment for Svetozar in local industry; that he had adequate housing and accommodations for Svetozar when he arrived in this country; and that he would help Svetozar become established in the American way of life. In other letters written by him to Svetozar, Milic urged his son to leave Fiorina, Greece and come to the United States with his family.

Prompted by these urgings, Svetozar, sometime in the latter half of 1959, brought his family to this country. First, they lived with Milic in Hammond, Indiana. Then, a short time later, Milic gave them possession of the house in Chicago. They lived there for about one year when Milic began demanding rent from Svetozar. He refused to pay and moved his family out of the house. In December 1961, Svetozar suffered a serious industrial accident. He demanded of Milic the support and assistance which Milic had promised in his letters and in the affidavit prepared for immigration authorities. Milic refused. In March 1964, Svetozar became an American citizen. On November 25, 1964, he filed a chancery suit against Milic in which he alleged the inducements Milic had made in persuading him to emigrate from Greece to this country with his family. Svetozar prayed that the court order Milic to convey to him the house in Chicago and pay him damages in the sum of $10,000. The case was referred to a master in chancery who heard evidence and recommended that a decree be entered in favor of Milic. While the case was pending on objections to the master’s report, Svetozar decided that he could receive amnesty if he and his family returned to Yugoslavia. He began preparations to do so. In the meantime, because of his accident, Svetozar and his family encountered hard times. Milic claims that he took pity on the plight of his grandchildren. Svetozar claims that Milic did not want his grandchildren returned to Yugoslavia, a communist country. In any event, Milic allowed Svetozar and his family to return to the house in Chicago.

Svetozar did not pay rent and title to the house remained in Milic who paid all the real estate taxes and insurance bills. Between May 1966 and February 1970, Svetozar spent slightly more than $800 for repairs and improvements of the house. In September 1966 and May 1967, Milic made unsecured loans of $4000 and $500 to Svetozar, funds which Milic said were used by Svetozar toward the purchase of a house on Milwaukee Avenue in Chicago. On February 11, 1970, Milic filed a forcible entry and detainer suit in which he alleged that Svetozar was unlawfully withholding possession of the house. This suit, however, was dismissed for want of prosecution with a non-suit judgment in favor of Svetozar. Then on March 19, 1970, Milic filed the ejectment complaint in this case. He alleged ownership of the house, Svetozar s unlawful withholding of its possession and he prayed for a judgment of eviction. Svetozar answered the complaint and affirmatively alleged Milic’s inducements by letter and affidavit, his possession of the house in 1959 and in 1966 and the expenditures for repairs and improvements. Svetozar argued that either Milic had made a contract to convey the house to him or he had made an oral gift of the house. Among other relief, he prayed for specific enforcement of the contract. This was denied and judgment entered in favor of Milic.

II.

Specific performance of a contract to convey land requires one that is unambiguous, complete in its terms and clearly proven. (Gabrenas v. Romanecka, 331 Ill. 95, 101, 162 N.E. 161.) The contract cannot be partly written and partly oral. (Kopprasch v. Satter, 331 Ill. 126, 127, 162 N.E. 141; Weber v. Adler, 311 Ill. 547, 143 N.E. 95.) And it is not enough to show that some kind of contract existed between the parties; it must appear that the contract was certain in all its terms so that a court can specifically enforce it. Peiffer v. Newcomer, 326 Ill. 189, 195, 157 N.E. 240.

To be specifically enforceable, a land contract must point out the land to be conveyed or furnish the means of identifying the land with certainty. (Crocker v. Smith, 366 Ill. 535, 537, 9 N.E.2d 309.) It must not be indefinite. Therefore, where an uncle, concerning his farm, wrote his nephew that if he would come and “make a success at farming it, unless some unknown cause should turn up, after my death to be your farm,-’ our Supreme Court held that even though the nephew accepted the offer, moved to the farm, occupied and farmed it until the uncle’s death, the contract could not be specifically enforced because it was not absolute in its terms and was too indefinite. Dunshee v. Dunshee, 255 Ill. 296, 99 N.E. 593.

Although Dunshee presents factual differences, we are constrained to the same conclusion in this case. Neither Milic’s letters to Svetozar nor the immigration affidavit he furnished contained terms that were definite, certain and complete. In fact,. they did not disclose a contract for the conveyance of land which a court of equity could enforce by specific performance. Certainly, they did not mention the house in Chicago, although Milic was then its owner. Carefully read, those letters and the affidavit did nothing more than express the heartfelt desires of a father that his son come to this country and improve his lot in life. Therefore, the evidence in this record did not prové a specifically enforceable contract to convey land. Crocker v. Smith, 366 Ill. 535, 9 N.E.2d 309; Hanlon v. Hayes, 404 Ill. 362, 89 N.E.2d 51.

Nor did the evidence prove that Milic gave Svetozar the house in Chicago as an oral gift of land. One who claims to be a donee has the burden of proving all the facts essential to a valid gift. (In re Estate of Jarmuth, 329 Ill.App. 619, 630, 70 N.E.2d 336.) To prove a valid gift, the evidence must show delivery to the donee with intent of the donor to pass title absolutely and irrevocably and relinqiiish all present and future dominion over the gift. (In re Estate of Waggoner, 5 Ill.App.2d 130, 137, 125 N.E.2d 154.) A gift that is capable of legal conveyance but is not made the subject of a conveyance is revocable. McCartney v. Ridgway, 160 Ill. 129, 156, 43 N.E. 826.

An oral gift of land does not pass title to the donee. (See Pocius v. Fleck, 13 Ill.2d 420, 428, 150 N.E.2d 106.) This is true even where the gift is accompanied by possession, unless the possession is continuously adverse to the donor for the statutory period, or after taking possession the donee with his own means makes permanent and valuable improvements, or there are such facts as would make it a fraud on the donee not to enforce the gift. (Stephens v. Collison, 313 Ill. 365, 375, 145 N.E. 81; Wolf v. Harper (1950), 313 Ky. 688, 233 S.W.2d 409; Dawson v. Tumlinson (1951), 150 Tex. 451, 242 S.W.2d 191; 38 C.J.S. Gifts § 57.) In other words, there must be some equitable circumstance that will require enforcement of the alleged gift. Hill v. Bowen, 8 Ill.2d 527, 538, 134 N.E.2d 769.

The only evidence in this record which bears on Svetozar’s claim that Milic gave him the house in Chicago as an oral gift is the testimony of Branka, his wife. She testified that in May 1966, Milic came to their home and gave them the house so that she, Svetozar and the children would not go back to Yugoslavia, a communist country. Milic, however, denied the substance of Branka’s testimony. He explained that in May 1966 he visited Svetozar’s children and found them sick and without food. He felt sorry for them and, because of this, he allowed Svetozar to move back into the house in Chicago. The house cost Milic $7500. In the affidavit he furnished for Svetozar’s immigration proceedings, Milic gave the house a value of $10,000. The improvements that Svetozar made on the property totalled a little more than $800. But there is evidence in this record which shows that after May 1966 Svetozar received from Milic, as unsecured loans, $4,000 or $4,500. Moreover, Milic retained title to the house, paid the insurance premiums and the real estate taxes. A strong presumption exists that the party who pays taxes on the land is its owner. (Geer v. Goudy, 174 Ill. 514, 531, 51 N.E. 623.) Therefore, in our judgment, the evidence in this record did not prove that the house in question had been the subject of an oral gift of land by Milic Pesovic to his son Svetozar.

Svetozar Pesovic was born in Yugoslavia. During World War II, at the age of 12, he was injured by a land mine that cost him his right bye and his left hand. His formal education took him to the third grade of a Yugoslavian elementary school. Yet, when this case was heard in the trial court, and because of circumstances not entirely his doing, Svetozar had to represent himself. With credible aptitude, he conducted cross-examination and presented evidence to support his contention- that he had been the victim of an injustice at the hands of his father, Milic. When judgment was entered against him, he filed a post-trial motion and later a notice of appeal that hear the imprint of a layman: In his appeal, first before the Supreme Court and now before us, Svetozar has represented himself. Understandably, his brief and abstract do not conform with the requirements of rules that govern their form and content. Because of these shortcomings, we have examined the record on appeal in order to see if, perchance, it supports Svetozar’s claims of injustice. We find that it does not. The judgment is affirmed.

Affirmed.

STAMOS, P. J., and SCHWARTZ, J„ concur.


author: Mr. JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eddie Travis (Impleaded), Defendant-Appellant.
    (No. 53870;
    First District (4th Division)
    March 14, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (John T. Moran, Jr., and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Robert Samko, and Cary Lind, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Eddie Travis, was charged with the crime of armed robbery. After a jury trial, he was convicted and sentenced to serve not less than three nor more than ten years in the Illinois State Penitentiary. Defendant raises the following issues for review:

1. Whether defendant was denied effective assistance of counsel; and

2. Whether there was probable cause to initially arrest defendant.

On April 6, 1968, at approximately -10:15 in the evening, defendant and four other men entered the tavern located at 8240 S. Archer Avenue in Willow Springs, Illinois. Two of the men entered the tavern’s bathroom while the others ordered beer, whiskey and hard boiled eggs. When the men exited from the bathroom, one was holding a sawed-off shotgun in his hands and they announced a holdup.' Defendant, armed with a knife, ran around tavern demanding wallets and the money of the patrons. During the holdup, a sixth man, who had previously remained outside, joined the robbers in the tavern. Just before the men left the tavern, defendant stabbed one of the patrons on the finger.

The six men left the tavern after the robbery and attempted to escape in defendant’s car. Police pursued them at high speed and when the car containing the robbers halted, two men were captured. The others escaped on foot.

About an hour and a half after the robbery, at midnight, defendant was seen in a service station at 8600 S. Harlem by a policeman who had received a radio message concerning the fleeing robbers and was told to watch for “male Negro subjects on foot”. When the officer noticed defendant inside the gasoline service station, but apparently without a vehicle, the officer stopped to investigate. The officer approached defendant and said that he would like to talk to him. Defendant asked the officer what he wanted to talk about and when the officer replied “an investigation”, defendant asked: “In regard to the robbery?” The officer then arrested defendant.

The following morning five of the defendants, including defendant Eddie Travis, were shown in a lineup along with two other Negro males to several patrons of the tavern. The five, including defendant Eddie Travis, were identified by. each of the witnesses.

Defendant testified in his own behalf and admitted all of the events up to the beginning of the robbery. Defendant stated that he had been drinking heavily and was taken by complete surprise when the other men perpetrated an armed robbery. Defendant maintained that he did not participate in the robbery.

The jury found defendant guilty of armed robbery. The trial court entered judgment on the verdict and after a hearing in aggravation and mitigation, defendant was sentenced to serve not less than three, por more than ten years in the Illinois State Penitentiary.

Defendant’s initial contention on appeal is that at trial in the instant case, he was denied his constitutional right to effective assistance of counsel. Defendant maintains that his counsel failed to move for a list of witnesses, physical evidence and grand jury minutes until the day of the trial. He also maintains that his counsel failed to move for the suppression of lineup identifications and to quash defendant’s arrest; that his counsel failed to make an opening statement and allowed prejudicial photographs to be used; that his counsel allowed the trial judge to examine witnesses improperly; and that his counsel allowed hearsay evidence to be offered. Defendant contends that he was irreparably prejudiced by this attorney’s actions and that he was thus denied his right to effective assistance of counsel.

Defendant in the instant case was represented by private counsel. Where a defendant in a criminal case employs private counsel, his conviction will not be reversed merely because his counsel failed to exercise the greatest skill, or for that reason that it might appear in looking back over the trial, that he made some tactical blunders. (People v. Stephens, 6 Ill.2d 257, 128 N.E.2d 731; People v. Lenker, 6 Ill.App.3d 335, 285 N.E.2d 807.) Defendant must demonstrate the actual incompetence of his counsel and it must appear that substantial prejudice resulted therefrom, without which the outcome would probably have been different. (People v. Hill, 44 Ill.2d 299, 255 N.E.2d 377.) A conviction will not be reversed unless representation was of such low caliber as to amount to no representation at all, or that it was such as to reduce the trial to a farce. People v. Strader, 23 Ill.2d 13, 177 N.E.2d 126; People v. Clark, 9 Ill.2d 46, 137 N.E.2d 54, cert. denied, 352 U.S. 1002, rehearing denied, 353 U.S. 931.

Defendant contends that his counsel’s failure to move for a list of witnesses, physical evidence and grand jury minutes until the day of trial, •is evidence of cóunsel’s incompetence and defendant maintains that because counsel did not obtain such information far in advance of trial, he was unprepared to move to suppress defendant’s arrest and lineup identification to defendant’s prejudice.

The record in the instant case does not support defendant’s contention that his counsel was unprepared. On the contrary, the record indicates that defendant’s attorney conducted extensive cross-examination of the State’s witnesses and introduced testimony by defendant, which if believed, would demonstrate the lack of requisite intent to commit a crime. It cannot be said that defendant’s attorney was unprepared to the substantial prejudice of defendant.

Defendant next argues that his counsel’s failure to make an opening statement is evidence, of incompetency. The failure to deliver an opening statement, absent a showing of actual prejudice to defendant .is not evidence of the incompetency of counsel, (People v. Herrera, 6 Ill. App.3d 898, 287 N.E.2d 87.). In many cases, competent defense counsel omit opening statements. In the instant case, the only points defendant sought to establish were that he was intoxicated at the time of the robbery and that while he was present he did not participate in the robbery. Defense testimony brought out those points and the failure to mention them in an opening statement cannot be shown to be prejudicial to defendant.

Defendant further alleges his counsel’s allowing of the prosecution’s use of photographs of certain participants in the crime for identification purposes as further evidence of incompetency. The record indicates, however, that the photographs were never shown to the jury, nor entered into evidence and since they in no way concerned defendant’s theory, that though he was present at the robbery he was intoxicated and never participated, we find counsel’s failure to object to their use was not prejudicial to the defendant.

Defendant next cites four instances of defense counsel’s failure to object to hearsay evidence at trial. Errors in the admission of evidence are harmless where the facts involved are established by other competent evidence. (People v. Pelkola, 19 Ill.2d 156, 166 N.E.2d 54.) In the instant case, the evidence that tire alleged hearsay was offered to prove was amply proven by competent evidence and in a trial whose transcript ran well over 600 pages, we find four isolated instances of counsel’s failure to object to possible hearsay to be of no indication of counsel’s incompetence.

Defendant finally offers his counsel’s failure to object to the trial court’s entry into the examination of witnesses as evidence of counsel’s incompetency. While repeated intrusions by the trial court into the examination of witnesses may be error (People v. Santucci, 24 Ill.2d 93 180 N.E.2d 491), in the instant case, counsel’s failure to object to the trial court’s rephrasing of questions in a few instances without indicating any bias, so that evidence could be properly received and the trial expedited, cannot be deemed to demonstrate incompetence of defendant’s counsel.

Defendant’s other contention on appeal is that he was initially arrested without probable cause to believe he had committed a crime and that the trial court erred in allowing any evidence deriving from that arrest to be admitted at trial.

It is well settled that this court will not consider the question of improper arrest where it has not been raised before the trial court. Justice will not be served by permitting a defendant to proceed through an entire trial without raising alleged error and then take advantage of any such error on appeal from an adverse judgment. (People v. Harris, 33 Ill.2d 389, 211 N.E.2d 693, cert. denied, 383 U.S. 971.) In the instant case, defendant did not raise objection to his arrest at trial and cannot do so for the first time on review.

Moreover, even if the waiver was not upheld, the evidence shows that the police officer clearly had reasonable grounds to believe that an offense had been committed and that the defendant was the perpetrator of that offense. People v. Wright, 41 Ill.2d 170, 242 N.E.2d 180, cert. denied, 395 U.S. 933.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is hereby affirmed.

Judgment affirmed.

BURMAN, P. J., and DIERINGER, J., concur.