author: Mr. JUSTICE EGAN

text:
    Ralph Weber, Jr., A Minor by His Father and Next Friend, Ralph Weber, Sr., Plaintiff-Appellant, v. Northern Illinois Gas Company et al., Defendants-Appellees.
    (No. 54796;
    First District (1st Division)
    March 5, 1973.

      Nat P. Ozmon, of Horwitz, Anesi & Ozmon, of Chicago, (Dario A. Garibaldi, of counsel,) for appellant.
    Kirkland & Ellis, of Chicago, (Francis B. Libbe, Leo K. Wykell, and Gary M. Elden, of counsel,) for appellees.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

Plaintiff, Ralph Weber, Jr., filed a complaint in two counts seeking to recover for personal injuries sustained as a result of an accident which occurred while he was employed as a construction worker. Count I was founded on common law negligence and Count II on the Structural Work Act. (Ill. Rev. Stat. 1967, ch. 48, sec. 60 et seq.) Count II was dismissed on defendants’ motion on December 18, 1968, on the ground it did not state a cause of action under the Act. The order stated:

“e * * and it is considered by the court that, as to Count II of the amendment to the complaint, the plaintiff take nothing by his suit against these defendants, and that the defendants go hence without day and have judgment for their costs and execution thereon; and the court further finds that there is no just reason to delay enforcement or appeal of this order.”

On May 2, 1969, the court entered summary judgment on behalf of the defendants on Count I. The quoted language from the dismissal order of December 18, 1968, appeared also in the order of May 2, 1969. On May 29, 1969, the plaintiff filed a motion for rehearing on both orders alleging, in part, that the order of December 18, 1968, was not final and appealable. Pursuant to leave of court, plaintiff filed various affidavits and excerpts from depositions applicable to Count I. On November 18, 1969, the court entered an order concluding: “It is hereby ordered that said motion to vacate [the orders of December 17 (sic), 1968 and May 1 (sic), 1969] be denied; thus rendering said orders final and appealable.” The confusion between December 17 and 18, and May 1 and May 2 stems from the fact that “December 17” and “May 1” appear to be the days the orders were prepared, but they were not entered until December 18 and May 2.

The notice of appeal filed December 17, 1969, prayed, that the orders of December 17, 1968, May 1, 1969, and November 18, 1969, be reversed. The original brief filed August 24, 1969, by the plaintiff expressly excluded the ruling on Count II from the appeal. Later, pursuant to leave of this court, plaintiff filed a supplemental brief which urged a reversal of the order dismissing Count II. The defendant filed a motion to strike that portion of the appeal. That motion, unsupported by any authority, was denied by this court.

The plaintiff now urges a reversal of all orders dealing with both Counts because Count II does state a cause of action under the Act and summary judgment was improperly granted on Count I since questions of fact existed which could only be resolved by the jury. The defendant contends that the record did not disclose any triable issue of fact on Count I, that Count II did not state a cause of action under the Structural Work Act and that this court lacks jurisdiction to pass on the appeal insofar as it applies to Count II. The plaintiff replies that this court does have jurisdiction and that our order denying the defendant’s motion to dismiss that portion of the plaintiff’s appeal is res judicata.

Initially, we must reject the argument of the plaintiff that our order denying the motion to dismiss the appeal on Count II is res judicata. The question of whether a court has jurisdiction is always open, and the court may of its own motion dismiss an action where want of jurisdiction appears. Village of Glencoe v. Industrial Com., 354 Ill. 190, 188 N.E. 329.

Supreme Court Rule 303, (Ill. Rev. Stat. 1971, ch. 110A, sec. 303) provides:

“(a) Time. Except as provided in paragraph (b) below, [Forcible Entry.and Detainer and Local Improvement and Drainage Cases] the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the motion. # * # »

Since the motion for rehearing filed May 29, 1969, was more than thirty days after the entry of the order of December 18, 1968, the threshold issue is whether the order of December 18, 1968, was a final and appeal-able one.

Supreme Court Rule 304, (Ill. Rev. Stat. 1971, ch. 110A, sec. 304) provides:

“(a) s s * If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. * * * The time for filing the notice of appeal shall run from the entry of the required finding. * *

In Cunningham v. Brown, 22 Ill.2d 23, 174 N.E.2d 153, a three-count complaint was filed. Count I alleged a claim for damages pursuant to the grant of a statutory cause of action by the Liquor Control Act. Count II alleged another separate cause of action based on the Act and Count III alleged common law negligence. Counts II and III were dismissed on the ground that the Liquor Control Act provided the only remedy against tavern operators and owners of premises for injuries to persons by an intoxicated person. The court made an express finding that there was no just reason for delaying the appeal. A motion to dismiss the appeal was made on the ground that the complaint did not involve multiple claims but only a single claim stated in various ways. The court denied the motion to dismiss holding that, although arising from the same occurrence or transaction, the bases of recovery in Counts II or III were different from that in Count I. Similarly, in Padulo v. Schneider, 346 Ill.App. 454, 105 N.E.2d 115, the complaint alleged in one count a cause of action under the Dram Shop Act and common law negligence in another. The court held the dismissal of one count was appealable, because it disposed of a distinct cause of action.

In Central Wisconsin Motor Trans. Co. v. Levin, 66 Ill.App.2d 383, 214 N.E.2d 776, a single count complaint sought specific performance and damages for breach of contract. The court struck those portions of the complaint pertaining to specific performance and found there was no just reason for delaying the appeal. The Appellate Court held that the order was final and appealable.

We find the rationale of these cases applicable here. Under Count I of the complaint in this case the plaintiff must prove negligence on the part of the defendants and that he was free from contributory negligence. Under Count II the plaintiff must prove that he was “in and about” a structure, that one of the devices enumerated in the statute was erected, constructed, placed or operated in an unsafe manner and that the defendant was in charge of the work. The defendant does not have available the defense of contributory negligence. The obligation of a contractor to provide a safe place to work has been expressly held to be different from the obligations under the Act. Parizon v. Granite Steel Co., 71 Ill.App.2d 53, 218 N.E.2d 27; Morck v. Nicosia, 91 Ill.App.2d 327, 235 N.E.2d 287.

The plaintiff relies on the following cases: Veach v. Great Atlantic and Pacific Tea Co., 22 Ill.App.2d 179, 159 N.E.2d 833; Davis v. Childers, 33 Ill.2d 297, 211 N.E.2d 364; Martino v. Barra, 37 Ill.2d 588, 229 N.E.2d 545; O’Leary v. Siegel, 120 Ill.App.2d 12, 256 N.E.2d 127.

In Veach, the Appellate Court refused to accept the trial court’s finding of finality because both counts of the tort complaint referred to one occurrence, with no difference as to date, time, place or parties but with some differences of wording of the several charges of negligence. In Davis, a verdict was returned in favor of the defendant partnership in a personal injury action. The trial court sustained plaintiff’s motion for judgment notwithstanding the verdict and made a finding that there was no reason for delay. The Supreme Court held that the finding did not have any effect because neither multiple parties nor multiple claims were involved. In Martino, the complaint for personal injuries was against several defendants, including Cities Service Oil Co., who had a cross-claim against other defendants for property damage. The trial court granted the plaintiff’s motion for judgment n.o.v. against defendants other than Cities Service, granted a motion for a new trial on damages only, made a finding there was no reason for delaying the appeal and entered judgment for Cities Service on its cross-claim. Appeals were taken from both orders. The Supreme Court held:

“We deem that the trial court abused its discretion in finding that there was no just reason to delay appeal of its order. * * * [T]he trial court’s judgments n.o.v. * * * were not final and * * * were not appealable.” p. 595.

In O’Leary, the original complaint was brought under the Structural Work Act; a second count for negligence was added after the expiration of two years. The only issue was whether the second count was barred by the Statute of Limitations. The case was decided on the interpretation of Section 46 of the Civil Practice Act, which authorizes amendments setting up new causes of action and provides that causes of action arising from the same occurrence in the amended complaint shall not be barred by lapse of time, where the original pleading was filed in apt time.

None of the cases cited by the plaintiff is apposite to the case before us. We note particularly the language of Martino indicating that the finding of appealability in an order is a matter of judicial discretion. That pronouncement was made expressly in Vogel v. Melish, 37 Ill. App.2d 471, 474, 185 N.E.2d 724:

“Such an order should not be entered routinely. Section 50(2) [the predecessor of Rule 304] was enacted for two principal purposes, (1) to discourage piecemeal appeals and (2) to remove the uncertainty as to the right and time to appeal which theretofore existed when a final judgment was entered on less than all of the matters in controversy. [Citation.] A trial judge should keep the first of these purposes in mind when requested to make the express finding that there is no just reason for delaying appeal. As the practice has developed the certification is expected to be entered for tire asking, whereas in reality it is a matter calling for the careful exercise of the court’s discretion.” (Emphasis added.)

While the order of December 18 appears to have been drafted by the attorney for Northern Illinois Gas Company, the record does not show any objection by the plaintiff. Under all the circumstances before him, the trial judge did not abuse his discretion in making the finding that there was no just reason for delaying an appeal. Having so exercised •his discretion and the order being final on December 18, 1968, the trial court was powerless, subject to other relief available under the Practice Act, to change it. The finding in the order of November 18, 1969, that the orders of December 17 and May 1 were now final and appealable as of November 18 was of no force or effect, regardless of the fact that the language was included in the order at the insistence of the defendants. (In re Estate of Schwarz, 63 Ill.App.2d 456, 212 N.E.2d 329.) No timely appeal having been filed from the order of December 18, 1968, we are without power to proceed. The appeal as to Count II is, therefore, dismissed.

In addition to the pleadings, the record on the motion consisted, in substance, of the deposition and affidavit of the plaintiff, the depositions of Albert Krueger and Neil Santee, the affidavit of Arnold Schrader, and a copy of the contract between Northern Illinois Gas Company, hereafter called Northern, and Lyman Construction Company, hereafter called Lyman.

For the purpose of the motion, the following must be taken as true: the plaintiff, eighteen at the time of the occurrence, had been employed as a welder’s assistant on June 17, 1966, by Lyman for only three or four days. He had no previous experience in construction work. Lyman and Geneva Construction Company were both subcontractors working on an installation of a gas pipeline owned by defendant, Northern. On the site, Geneva used a side boom tractor, and Lyman, a Pitman truck with a boom, for the installation of the pipe in a trench. Arnold Schrader, a consultant in the field of engineering and construction, testified as an expert witness that the Pitman truck with a boom was improper and inadequate equipment to perform the phase of construction that was being performed for the following reasons: the Pitman must be operated during a pipe movement with a lengthy amount of cable let out to the attaching point; the Pitman must remain on a solid, hard type of surface; in order to get enough power to make the movement, the speed and motion of the truck are needed because the power from the boom is insufficient; lengthy amounts of cable from the distant power source (the Pitman) is a dangerous practice on a construction site; the operator of the Pitman has insufficient visibility and view of the area surrounding the use of the truck and the cable; a signal system between the connecting point and the operator is practically impossible to maintain and use. Movements of the pipeline must be made by “jumping” and fast movements of the truck with a lengthy amount of cable extending to the connecting point. In Schrader’s opinion the recognized, proper and adequate equipment to perform tire type of construction involved was the Sideloader because there is no necessity to use an extensive amount of cable, it has adequate power obviating sudden speedy movements, it can operate efficiently on any type of surface, there is no necessity under the conditions shown to have existed to use any lengthy amount of cable allowing looping of the cable and it can, under most circumstances, work in close proximity to the pipe and the point of attachment for the movement of the pipe. He further testified that in 1966 and for a long time prior thereto a Pitman was “antiquated, out of date, unsafe, and not an acceptable piece of equipment for the performance of the type of construction involved” and that for the same period “it was universally accepted in the construction industry within the Chicago area that * * * any owner’s representative with authority over the type of equipment used on a construction site [would] forbid the use by any contractor and/or subcontractor to [Pitman] move or install pipe within any trench or excavation.”

Brian Quarrie was operating the Pitman at the time of the occurrence. He was not an operating engineer and had operated the truck for only three or four days. When operating the truck he had no visibility behind him and could not see the plaintiff. At the time of the occurrence, thirty to forty feet of cable had been let out from the boom.

Under the terms of the contract between Lyman and Northern, Northern’s representatives had the right to stop the work until, in their opinion, proper means and methods had been adopted by Lyman to prevent danger to the lives or persons of individuals; they had the right to order unsafe or inadequate equipment removed, and Lyman agreed to remove any workmen Northern’s representatives designated as unfit or unskilled.

Albert A. Krueger, the plaintiff’s uncle, was Construction Inspector of Northern at the job site. His job was to see “that the job [was] done properly to [Northern’s] specifications, and more or less to be an overseer and that’s aU.” His job required him to be at the site all the time the contractor worked. He was aware of his authority to caU the inadequacy of equipment to the attention of Lymans foreman. He knew that Quarrie was a new man on the job. He did not feel that the Pitman truck was adequate equipment for this particular job. He had previously given instructions to the plaintiff about wearing goggles and certain boots. He had told Parvin, the welder for Lyman, that the welding work was not going according to specification, that “he was just hurrying up and somebody would get into an accident if he continued to work that way.” Parvin had previously told him that the Pitman was inadequate for the job due to the trees in the parkway. Krueger stated: “When you go to work and try to move these pipes, you have to move in between the trees and the boom gets in the way and when you get to pull the pipe through the trees it doesn’t have the power to do the work with [sic] a side boom tractor. It was my feeling that the Pitman boom truck was inadequate for the job that was being done. There was a better way to do the job with a bigger piece of equipment. But from what I have told you, the Pitman boom was doing the job up until that time. I hadn’t disapproved of the way the job was being done. * * * A side boom tractor is more powerful equipment than a Pitman boom. You still use a cable. A side boom is on cats and the Pitman is a rubber tire truck and it is not stationary enough. A side boom tractor would be able to exert more power for pulling these pipes through the trees and across the street too.” He knew that Geneva used side boom tractors.

The plaintiff testified that before, his injury the Pitman had been used to move the pipe. On each occasion an extensive amount of cable was pulled from the back of the Pitman. Most movements were made by speeding up the truck, moving the truck and jerking the cable taut in order to move the pipe. On some occasions, he saw the Pitman truck lift into the air in attempts to move pipe and at the same time snapping the lengthy amount of cable when it pulled tight. Prior to his injury there had also been difficulty in the Pitman maintaining traction in movement. There were no set signals for the movement of the truck. Since there was a substantial distance between the connecting point to the pipe and the place where the truck was located, he never knew exactly when the truck was going to start in order to make a movement of the pipe. The movement of the Pitman just prior to his injury was fast. He saw the truck start up and saw the cable “whirl” into the air. That movement was similar to others that had been occurring during the construction. At about 11:30 a.m., pursuant to instructions, he pulled lengths of cable from the truck and attached it to the length of pipe which was partly in the trench and partly suspended in the air. The truck was to pull the cable taut and eventually pull the pipe up to the other pipe that had already been positioned in the trench. After this operation he was to assist in a weld of the two pieces of pipe. After he hooked up the cable to the pipe, within a “couple of seconds” the truck started to move and he saw the cable “snaking very rapidly.” At the time there were loops in the cable on the ground. The cable was about one-half inch in diameter, consisting of steel strands. His left foot got caught in one of the loops, and as the cable tightened his left leg was amputated midway between the knee and the ankle.

The defendant contends that no issue of fact exists, that the unexpected start-up of the winch truck was an intervening proximate cause which made any negligence of the defendants remote and non-actionable and that the defendant had no obligation to plaintiff to supervise details of the construction job.

The purpose of summary judgment procedure is not to try an issue of fact but rather to determine whether one exists, (Moroni v. Gulf, Mobile and Ohio Railroad Co., 86 Ill.App.2d 426, 230 N.E.2d 55) and the record is to be tested under the same standard as a directed verdict: Does aU the evidence, viewed in its aspect most favorable to the opponent, so overwhelmingly favor the movant, that any other verdict would not be permitted to stand? (Lumbermens Mutual Casualty Co. v. Poths, 104 Ill.App.2d 80, 243 N.E.2d 40.) We conclude that the evidence here does not so preponderate in favor of Northern that a verdict for the plaintiff must be set aside and that whether the defendants failure to supervise was a proximate cause of the injury must be determined by a jury.

The defendant cites four cases in support of its argument that the action of Lymans employee was the intervening proximate cause, thus rendering any negligence of the defendant “non-actionable”. In Mindrop v. Gage (1914), 189 Ill.App. 599, the Appellate Court held that no more than one person could be in charge of the work under the Structural Work Act, concluding, therefore, that the evidence showed that the plaintiffs employer, rather than the general contractor, was in charge. That proposition of law has been expressly refuted in Gannon v. C., M., St. P. & P. Ry. Co., 22 Ill.2d 305, 315, 316, 175 N.E.2d 785: “While the Appellate Court decisions 9 9 9 interpreting section 9 [of the Structural Work Act] as imposing civil liability only upon an owner ‘having charge of the erection of the structure (Mindrop v. Gage, [citation]; * * #) certainly are not binding upon this court, nevertheless, they are of historical interest and reflect the legal climate during the years immediately following the enactment of the Scaffold Act.” (See also IPI 180.02.) Furthermore, Mindrop held that the evidence must show, under the common law count, that the general contractor and the subcontractor were jointly in control of the device since the verdict was a joint one. Cf Leatherman v. Schueler Bros., Inc., 40 Ill.App.2d 56, 64, 189 N.E.2d 10.

In Reddick v. General Chemical Co. (1905), 124 Ill.App. 31, the defendant had no control over the plaintiff’s manner of unloading acid from a freight car. Factually, it is inapposite to the present case.

In Terminal Railroad Association v. Larkins (1903), 112 Ill.App. 366, 371, the court held that the appellee was contributorily negligent as a matter of law, and “[W]hether or not the car was defective or [defendant] negligent in that respect, would be a question within the province of the jury, if the right to recover depended upon the answer to that question alone.” If anything, this case supports the argument of the plaintiff.

In Merlo v. Public Service Co. (1942), 381 Ill. 300, 45 N.E.2d 665, two workers were electrocuted when, while they were working on construction of a sewer, a boom or crane operated by one defendant came in contact with an electric transmission line belonging to another defendant. The Supreme Court upheld a verdict against the operator of the crane and reversed the verdict against the power company. The court held that under certain circumstances the uninsulated wire, a certain distance from the ground, might constitute negligence. The court then posed a series of rhetorical questions which, to paraphrase, asked whether anyone could reasonably anticipate that as a natural and probable result of the power company’s negligence the crane operator would negligently swing the crane to such height and such manner as to cause it to come in contact with the wire. The court held in answering in the negative that “[m]anifestly and undoubtedly, neither the lack of insulation nor the sagging wires did anything more than furnish a condition, and the intervening, independent act of the crane operator was the efficient and proximate cause of the fatal injuries to the decedents.” (p. 318.) (Emphasis added.) We point out first that a fact question arises whether Lyman was independent. We point out further that the power company in Merlo knew nothing about the construction work involved, let alone exercised no control. Under the facts of the present case we must answer similar questions in the affirmative. It can be said by a reasonably prudent person that the negligence of Quarrie, if any, was the natural and probable consequence of the failure of Krueger to stop the work, or to order the removal of the Pitman, or to inform Weber of the danger or to require some type of signaling system that would prevent the movement of the truck until all personnel were clear, the opinion of Schrader notwithstanding. It can also be said that one could reasonably anticipate that as a natural and probable result of the failure of Northern to stop the work someone would be injured. Kruegers own testimony showed that he did in fact anticipate that possibility.

In the second ground advanced by the defendant it argues:

1. The defendant could assume that their independent contractor (Lyman) would use its equipment in a reasonable manner.
2. The defendant’s inspection of the job site and suggestions concerning welding did not oblige them to supervise every detail of the job.
3. The defendant’s contract did not obligate them to protect the contractor’s employees from the contractor’s negligence.

The defendant cites Kepperly v. Ramsden (1876), 83 Ill. 354; City of Moline v. McKinnie (1888), 30 Ill.App. 419; Karr Supply Co. v. Kroenig (1897), 167 Ill. 560, 47 N.E. 1051; Geist v. Rothschild & Co. (1900), 90 Ill.App. 324; F. J. McCain Co. v. Kingsley (1906), 126 Ill.App. 165; Wells Bros. Co. v. Manion (1908), 140 Ill.App. 527; Keenan v. Wells Bros Co. (1908), 142 Ill.App. 1.

Kepperly, City of Moline and Geist all held that the owner was relieved of liability where the independent contractor held exclusive control of the work. We are in complete agreement with the principle enunciated in these cases. If we could conclude, as a matter of law, that Lyman had retained exclusive control over the work, the defendant’s position would be tenable. We conclude, however, that whether he did have exclusive control was, at least, a question of fact for the jury.

The other four cases, Keenan, Wells Bros., McCain and Karr, deal with the obligation of the master to provide a safe place to work for his servant. All of them preceded the enactment of the Workmen’s Compensation Act in 1911. These four cases have no application, because the defendant does not contend that the relationship of master and servant exists between it and Lyman or his employees. As the comments to Sec. 414 of the Restatement of Torts point out, liability may attach to one who retains less than that degree of control necessary to establish the relationship of master and servant.

The Restatement of Torts, Second Edition, Section 414 provides as follows:

“§ 414. Negligence in Exercising Control Retained by Employer One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
Comment:
a. If the employer of an independent contractor retains control over the operative detail of doing any part of the work, he is subject to liability for the negligence of the employees of the contractor engaged therein, under the rules of that part of the law of Agency which deals with the relation of master and servant. The employer may, however, retain a control less than that which is necessary to subject him to liability as master. He may retain only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others. Such a supervisory control may not subject him to liability under the principles of Agency, but he may be liable under the rule stated in this Section unless he exercises his supervisory control with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others.
b. The rule stated in this Section is usually, though not exclusively, applicable when a principal contractor entrusts a part of the work to subcontractors, but himself or through a foreman superintends the entire job. In such a situation, the principal contractor is subject to liability if he fails to prevent the subcontractors from doing even the details of the work in a way unreasonably dangerous to others, if he knows or by the exercise of reasonable care should know that the subcontractors’ work is being so done, and has the opportunity to prevent it by exercising the power of control which he has retained in himself. So too, he is subject to liability if he knows or should know that the subcontractors have carelessly done their work in such a way as to create a dangerous condition, and fails to exercise reasonable care either to remedy it himself or by the exercise of his control cause the subcontractor to do so.
c. In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usuaUy reserved to employers, but it does not mean that the contractor is controUed as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.”

This rule and comment have been recognized as an expression of the law of Illinois. (Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 325, 211 N.E.2d 247.) Contrary to the argument of the defendants, the rule is applicable to anyone with authority who entrusts work to an independent contractor, e.g., an owner, general contractor or architect. In any event, we reject the argument of the defendant that Northern was the owner and not a contractor. We hold that it was both.

We conclude that a factfinder could determine that Northern met the standards of control expressed in the comments. It did retain the power to forbid the work being done in a manner dangerous to others. It did fail to prevent the subcontractor from doing the details of the work in a dangerous manner when it knew it was so being done. It had more power than to make only suggestions or recommendations, and it did retain such a right of supervision that the subcontractor was not entirely free to do the work in his own way. Cf Nowicki v. Union Starch and Refining Co., Supreme Court, No. 44828, May Term, 1972.

The defendants argue that because they did not participate in the operation of the winch truck or other pipe-moving operations they are not responsible as a matter of law. They correctly distinguish those cases cited by the plaintiff in which the defendant provided defective equipment or performed some affirmative act that led to the injury. The defendant, however, begs the question of what is meant by the word “participate”. In some cases liability has been upheld against a general contractor for the failure to warn, (Delgado v. W. C. Garcia & Associates, 212 Cal.App.2d 5, 27 Cal.Rppr. 613; Pichler v. Pacific Mechanical Contractors, 1 Wn.App. 447, 462 P.2d 960), or the failure to guard against injuries, (Leatherman v. Schueler Bros., Inc., 40 Ill.App.2d 56, 189 N.E.2d 10) or the failure to inspect, (Rodgers v. Meyers and Smith, Inc., 57 Ill.App.2d 200, 206 N.E.2d 845.) Thus, we must reject the narrow interpretation of “participate” given by the defendants.

The plaintiff relies heavily on Miller v. DeWitt, 37 Ill.2d 273, 226 N.E.2d 630. In that case the verdict against an architect for common law negligence was upheld. The architect prepared the contracts and caused bids to be received which resulted in the letting of three contracts, one for the general contractor, one for plumbing and heating and one for electrical work. Three employees of the general contractor were injured. The contract between the architect and the owner provided that the architect’s services would consist in part of the “general administration of the construction contract and supervision of the work”. The contract between the owner and general contractor provided that the architects had authority to stop the work whenever such stoppage might be necessary to insure the proper execution of the contract. Improper shoring was used which caused the injury to the plaintiffs. The court held that, since the architect had a right to stop the work and to insist upon a safe and adequate method of shoring, the jury could find from the evidence that the architects were guilty of negligence in failing to inspect and watch over the shoring operations.

The contract before us gives an even greater right of control to the general contractor-owner than was present in the Miller case, and we deem the distinction raised by the defendants that Miller involved an architect, rather than a general contractor, specious, at best.

In support of the defendants’ argument that the contract in this case did not obligate them to protect Lyman’s employees, they cite Pioneer Fireproof Construction Co. v. Hansen (1898), 176 Ill. 100, 52 N.E. 17 and Haugh v. Ryerson & Son (1912), 171 Ill.App. 414.

In Pioneer Fireproof Construction Co., the issue was whether under the contract the general contractor retained such a degree of control over the subcontractor that the subcontractor and his employees became the servants of the general contractor. See Comment, Restatement of Torts, Second Edition, Section 414.

In Hough, no written contract was involved. The owner of the property hired an independent contractor and retained no control over the operation.

Finally, the defendants allude to Section 9 of the contract: “9. Safety Of The Work. * * * This clause shall not be construed as implying any responsibility [of defendants] with regard to securing the safety of the work.” That sentence, the defendant urges, makes explicit the rule of law that the courts applied even without an express provision. We conclude otherwise. It has been consistently held that a contractor owes an independent contractor whom he employs and all the subcontractors’ employees a non-delegable duty to provide a safe place to work. (Leatherman v. Schueler Bros., Inc., 40 Ill.App.2d 56, 61,189 N.E.2d 10; Greenleaf v. Puget Sound Bridge Co., 58 W.2d 647, 364 P.2d 796.) If the law provides that one may not delegate a duty imposed, a fortiori, he may not simply divest himself of it. While Northern assumes control with one hand, it seeks to throw away responsibility with the other. Understandably, Northern wants the best of both possible worlds in construction work. Stated simply, it cannot have them.

For these reasons we conclude that it was for a jury to determine whether Northern retained such control over the work that it was required to supervise and that its failure to supervise in any of the ways ascribed in the complaint was a proximate cause of the injury to the plaintiff. The judgment of the circuit court granting summary judgment on behalf of the defendant, Northern Illinois Gas Company, is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

We further hold the record shows no evidence of liability on the part of the defendant, City of Evanston. The judgment of the circuit court granting summary judgment on behalf of the defendant, City of Evanston, is affirmed.

Judgment affirmed in part, reversed in part and remanded with directions.

BURKE, P. J., and GOLDBERG, J„ concur.


source: Caselaw Access Project

author: Mr. JUSTICE GOLDBERG.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul Roebuck, Defendant-Appellant.
    (No. 57276;
    First District (1st Division)
    March 5, 1973.

      George P. Sullivan and William H. Theis, both of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James R. Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE GOLDBERG.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Marvin R. Mathis, a/k/a Maurice R. Mathis, Defendant-Appellant.
    (No. 55158;
    First District (5th Division)
    March 9, 1973,
    Gerald W. Getty, Public Defender, of Chicago, (James N. Gramenos, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Richard Pezzopane, 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. Robert Helm, Defendant-Appellant.
    (No. 55483;
    First District (5th Division)
    March 9, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (John E. Hughes, Herbert Becker, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, William C. Braverman, and James Sternik, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

OFFENSES CHARGED

Theft. Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1(a)(1). Criminal Trespass to Vehicle. Ill. Rev. Stat. 1969, ch. 38, par. 21 — 2.

JUDGMENT

At a bench trial, defendant was found guilty of theft and sentenced to a term of one to ten years.

CONTENTIONS RAISED ON APPEAL

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

2. Defendant’s statements were admitted into evidence in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602.

EVIDENCE

Donald Moss, for the State:

He was the owner of a 1970 Ford Fairlane 500 valued at approximately $2900. At about 6:45 A.M. on March 18, 1970, he went outside to start his car and then returned to his house. Ten minutes later, when he returned to his car, it was missing. On March 21, 1970, he went to the police station at 11th and State Streets and identified his car as the one which the police had recovered from defendant. He had not given defendant permission to drive the car.

Philip Dienethal, for the State:

He was a police officer assigned to the 1st District Technical Unit. During the early morning hours of March 20, 1970, he had a conversation with an informer at the corner of 11th and Michigan in Chicago. The informer told him about a stolen vehicle which was about to be used in a robbery. He saw the car parked nearby on Michigan Avenue and put it under surveillance. He saw three people enter the vehicle at about 2:00 A.M. and drive north on Michigan Avenue, make an illegal U-turn, and then proceed south. He stopped the car after following it a short distance, and asked the driver to produce identification. Defendant produced a valid drivers license, but when asked about the ownership of the car, he stated that it belonged to a friend. He didn’t know the friend’s name and when asked where the friend lived, he said he didn’t know that either. He said he usually saw the friend standing on the corner of Division Street and he would give the car back when he saw him. The officer then asked defendant and his two companions to accompany him to the 1st District Station to straighten out the question of ownership. They agreed to go along to get the question cleared up. At the station, the officer found the car registered to Donald Moss, and wired to the car were stolen license plates belonging to Frank Gargon. From police records, he determined that the car had been stolen March 18, 1970. Approximately 45 minutes after they arrived at the station, defendant was placed under arrest.

Martie Trotter, for the defense:

She was acting librarian at Cermak Memorial Hospital which is associated with the House of Correction. Her duties there placed her in charge of records at the hospital. Defendant had been an inmate there from June 9, 1969, until March, 1970. According to her records, the earliest he could have been released was March 18.

John Stewart, for the defense:

He was the police lieutenant in charge of receiving and discharge at the House of Correction and kept records on the release of prisoners. According to his records, defendant was released on March 18, 1970. The usual discharge time is 11:00 A.M. on the day of release, but he could not say if defendant had been released at that hour or some other time.

OPINION

Defendant argues that he was not proved guilty beyond a reasonable doubt because the indictment charges him with an offense which took place before he was released from jail on the morning of March 18, 1970. He maintains that all of the evidence adduced at trial related to occurrences which took place on March 20 and that the evidence did not prove that he either took the car himself on the 18th or knew the car had been stolen on that date.

Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1(a)(1) states that a person commits theft when he knowingly:

“(a) Obtains or exerts unauthorized control over property of the owner; * * * and
(1) Intends to deprive the owner permanently of the use or benefit of the property; * *

Also, par. 15 — 8 (Ill. Rev. Stat. 1969, ch. 38, par. 15 — 8) states that “ ‘obtains or exerts control’ over property, includes but is not limited to the taking, carrying away, or the sale, conveyance, or transfer of title to, or interest in, or possession of property.” Thus, one is a thief when he knowingly exerts unauthorized control through mere possession of the property, intending permanently to deprive the owner of its use. A similar case arose in People v. Nunn, 63 Ill.App.2d 465, 212 N.E.2d 342, where defendant argued that the evidence did not show that he had taken the car from the place where it had been parked by the owner. We held there that defendant’s alibi as to the time the car was taken, was immaterial because the unauthorized possession need not begin on the day of original theft but may be shown by possession at the time of arrest.

In the present case, even though no one stated the exact time of defendant’s release from jail on the 18th, it might be considered subject to reasonable doubt that defendant was the person who initially stole the car. However, at the time of arrest, defendant was driving the car which then bore stolen license plates; defendant was unable to give the name of the person who had lent him the car, tell where that person lived, or convincingly explain how he would return the car to the unnamed person who was supposedly the owner. The facts and his questionable explanation of possession, coupled with the information supplied by the informer, raise a presumption of defendant’s guilt and are sufficient to support his conviction. People v. Litberg, 413 Ill. 132, 108 N.E.2d 468. See People v. Davis, 69 Ill.App.2d 120, 216 N.E.2d 490.

Defendant also argues that his conviction is based purely on circumstantial evidence since no one saw him steal the car and no one saw him change the license plates. It is well established that a conviction may rest on circumstantial evidence alone, and although it must not produce any reasonable theory which could support defendant’s innocence, the trier of fact is not required to search for a series of possible “explanations compatible with innocence, and elevate them to the status of a reasonable doubt.” (People v. Huff, 29 Ill.2d 315, 320, 194 N.E.2d 230, 232.) Without searching further than defendant’s own explanation, the trial court apparently found his story less than credible and so insubstantial that it did not raise a reasonable doubt as to his guilt. Tims, from the attendant circumstances, it may be inferred that defendant knew the car had been stolen, that he was exercising unauthorized control over the property while driving the car without the owner’s permission, and that by his actions he intended to deprive the owner of the car’s use permanently.

Next, defendant maintains that his statements to the police prior to his arrest were admitted into evidence in violation of the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602. He argues that because the informer told the officer that the car was stolen, then as soon as defendant’s interrogation turned from the question of an illegal U-turn to accusatory questions of ownership, defendant should have been warned of his Miranda rights since at that time defendant was in custody. We cannot agree.

The Miranda decision states that when questioning a suspect during custodial interrogation, certain procedural safeguards must be used to protect the person’s privilege against self-incrimination. (People v. Milligan, 107 Ill.App.2d 58, 245 N.E.2d 551.)

“By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. (384 U.S. 436, 444.)”

Later in the opinion the court explained why it felt there was a difference between custodial and on-the-scene investigations.

“General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. * * * In such situations the compeHing atmosphere inherent in the process of in-custody interrogation is not necessarily present. (384 U.S. 477-8.)”

There is general agreement that Miranda does not provide a hindrance to pohce officers’ usual investigative techniques which include questioning citizens on the scene to determine if a crime had been or was being committed. Lowe v. United States, 407 F.2d 1391 (9th Cir. 1969); People v. Parks, 48 Ill.2d 232, 269 N.E.2d 484, cert. denied 404 U.S. 1020, 92 S.Ct. 692; People v. Thompson, 48 Ill.2d 41, 268 N.E.2d 369.

In Allen v. United States, 390 F.2d 476 (D.C. Cir. 1968), mod. 404 F.2d 1335, the police officer stopped a car and asked the driver to produce his license and registration. The driver could produce neither. The officer then noticed a passenger who looked as if he had been beaten. He than asked the driver who owned tire car, where it came from, and where the driver had obtained the car. The driver’s answers were admitted into evidence as “on-the-scene” exceptions to Miranda.

In People v. Ricketson, 129 Ill.App.2d 365, 264 N.E.2d 220, after defendant was stopped for a traffic violation, he was questioned at his car about other possible offenses because of suspicious circumstances existing at the time he was stopped. The court found that until such time as probable cause exists for an arrest for a specific offense, the detention of a person for a traffic violation and tire questioning of him about other crimes may be conducted without first giving the warnings set forth in Miranda. See People v. Parks, 48 Ill.2d 232, 269 N.E.2d 484, cert. denied 404 U.S. 1020.

Generally, the exception applies where there has been a “complete absence of the element of coercion, actual or potential, or police dominance of the individual’s will # (United States v. Gibson, 392 F.2d 373, 376 ( 4th Cir. 1968); People v. Thompson, 48 Ill.2d 41, 268 N.E.2d 369.) However, the line distinguishing between investigation and custodial interrogation is often difficult to draw. See People v. Bradford, 434 S.W.2d 497. As the court stated in the Allen case:

“Whether police have left the channel of investigation’ and run onto the shoals of custodial interrogation’ cannot be determined by reference to some chart clearly designating the various lights, bells, buoys and other channel markers. * * * We think the relative routineness of an inquiry is a material indicator that the police are still in a state of investigation.” (390 F.2d 476, at 478-479.)

Various attempts have been made to set down a test for determining when investigation stops and custody begins. (See 31 A.L.R.3d 565.) Miranda spoke of custody as the time when the individual was “deprived of his freedom of action in any significant way,” (384 U.S. at p. 444.) Lowe v. United States, 407 F.2d 1391 (9th Cir. 1969) reasoned that an objective standard should be applied by the trial judge when deciding whether the individual was being deprived of his freedom and thus in custody at the time the questions were asked. There, the court held that a reasonable man standard should be applied to determine if a defendant reasonably believed that he was not free to leave the scene of the questioning or was merely acting voluntarily. We believe the standard is a good one and when applied to the present case, results in a finding that defendant, at the time he was stopped for the traffic violation and then asked about the ownership of the car he was driving, could not reasonably have believed he was in custody until after he went with the officer to the police station and was found to have been driving a stolen vehicle. This lack of pressure is particularly apparent in the present case, because defendant was questioned on a public street, in his own car, in the presence of two of his friends, and all went voluntarily with the officer to the police station. We find the officer did not coerce defendant in any way and was only asking routine questions necessary for a proper investigation of whether a crime, (other than the traffic violation) had been committed. Thus, defendant was not in custody until placed under arrest at the station, and any statements he made during the investigation, prior to being taken into custody, were properly admitted into evidence since no Miranda warnings were required at that time.

The judgment of the circuit court is affirmed.

Affirmed.

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


author: Mr. PRESIDING JUSTICE DRUCKER.

text:
    The People of the State of Illinois, Respondent-Appellee, v. Radojko Ponjavich, Petitioner-Appellant.
    (No. 56387;
    First District (5th Division)
    March 9, 1973.
   Opinion by

Mr. PRESIDING JUSTICE DRUCKER.

Louis V. Kiefor, of Calumet City, for appellant.

Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Robert C. Samko, Assistant State’s Attorneys, of counsel,) for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Aubrey Sturgis, Defendant-Appellant.
    (No. 57109;
    First District (5th Division)
    March 9, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harvey Lee Rush, a/k/a Larry Hood, Defendant-Appellant.
    (No. 57968;
    First District (5th Division)
    March 9, 1973.
    James J. Doherty, Public Defender, of Chicago, (James N. Gramenos, Assistant Public Defender, and Darrell M. Fineman, Senior Law Student, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE BURKE.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Thomas, Defendant-Appellant.
    (No. 56661;
    First District (1st Division)
    March 12, 1973.
   Opinion by

Mr. PRESIDING JUSTICE BURKE.

James J. Doherty, Public Defender, of Chicago, (Ian Levin, Assistant Public Defender, of counsel,) for appellant.

Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Peter F. Costa, Assistant State’s Attorneys, of counsel,) for the People.


author: Mr. JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lee King, Defendant-Appellant.
    (No. 55547;
    First District (2nd Division)
    March 13, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Stanton Bloom and James J. Gramenos, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James T. J. Keating, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This was a prosecution for rape. Defendant waived trial by jury, was convicted and sentenced to serve four to five years. In this appeal, he presents three issues. (1) Whether he was proven guilty beyond a reasonable doubt. (2) Whether he was denied a fair tidal and deprived of due process of law by comments made by the trial judge. (3) Whether he was prejudiced when his motion for a continuance was denied. Resolution of the first issue requires a summary of the facts.

On October 19, 1968, the prosecutrix, a woman in her thirties and a mother, worked as a cook and barmaid in the Korvette Lounge, 8145 Cottage Grove Avenue, Chicago. That day, at about 4:15 A.M., she finished work and left for home, a short distance away. As she walked east on 81st Street between Cottage Grove and Maryland Avenue, a man she had seen in the lounge that evening and “a couple of times” before, came behind her, grabbed her arm, hit her on the head, dragged her into an alley and raped her. The prosecutrix observed that her assailant had sideburns and “a heavy mustache.” After he left, she walked home and called the police. They took her to a nearby hospital where she made her complaint to Detective Harold Huffman and described the man who raped her. The description consisted of the man’s race, approximate age and height. She did not tell Detective Huffman that she had seen this man earlier that evening in the Korvette Lounge and “a couple of times” before October 19, 1968. And when he testified, Detective Huffman could not recall the prosecutrix mentioning that her assailant had “a heavy mustache.”

Several weeks after October 19, defendant came to the Korvette Lounge while the prosecutrix was there. She did not tell anyone present that defendant had raped her. She did not call the police. Then, a short time later, defendant came into the lounge a second time. Again, the prosecutrix did not tell anyone that defendant had raped her. She waited until she got home and then she called the police. A detective came to her house and talked with her. During her testimony, the prosecutrix explained that she did not call the police from the Korvette Lounge because she feared for her life and for the safety of her children. Sometime later, the defendant came into the Korvette Lounge a third time. Again the prosecutrix did not tell anyone that defendant had raped her on October 19, 1968. But the prosecutrix said that she called the police station and asked for Detective Huffman. She was not able to contact him. Then, on April 22, 1969 defendant was in the Korvette Lounge with some friends. He ordered drinks for them. He put his hands on the prosecutrix. In her testimony she said that defendant’s conduct “just made me sick. And I say I am going to call the police and I called.” The police came and the prosecutrix told them that defendant raped her on October 19, 1968. He was arrested, charged and brought to trial.

The prosecutrix and Detective Huffman testified for the prosecution. Defendant testified in his defense and denied that he raped the prosecutrix. He admitted that prior to October 19, 1968 and subsequent to that date he was a patron of the Korvette Lounge. He said that between October 19, 1968 and April 22, 1969 when he was arrested, he had been in the lounge several times when the prosecutrix was there but she never complained about his conduct to anyone nor did she charge that he had raped her. After hearing the evidence, the trial court found defendant guilty and imposed the sentence.

The first issue before us is whether the evidence in this record on which the question of identity rests entirely on the testimony of one witness, the prosecutrix, proved beyond a reasonable doubt that on October 19, 1968 defendant committed the crime of rape.

Defendant insists that it does not. He argues that on October 19, 1968 when the prosecutrix first complained to Detective Huffman, it was natural for her to assert that the man who raped her was one she had seen in the Korvette Lounge that evening and “a couple of times” before. According to Huffman, she did not do this. Moreover, defendant points out, he was in the Korvette Lounge three times between October 19, 1968 and April 22, 1969 without the prosecutrix complaining to anyone there that he had raped her or having him arrested for that offense. In addition, defendant argues that it was natural for the prosecutrix, when she described her rapist to Detective Huffman, to tell him that the man who attacked her had a heavy mustache. According to Huffman, she did not do this. The only description she gave was the race, approximate age and height of her assailant. From these facts, defendant contends that the testimony of the prosecutrix lacked the ring of truth; she was not a credible witness; and therefore, his conviction based solely on her identification testimony cannot stand. To determine the merit of this contention, we turn to the rules of law applicable to this case.

The identification testimony of one witness who is positive and credible is sufficient to convict, even though that testimony is contradicted by the accused. (People v. Sproch, 409 Ill. 55, 58, 97 N.E.2d 833; People v. Novotny, 41 Ill.2d 401, 411, 244 N.E.2d 182; People v. Hardaway, 108 Ill.App.2d 325, 247 N.E.2d 626.) Such a conviction, however, cannot stand if the identification testimony is vague, doubtful and uncertain. (People v. Cullotta, 32 Ill.2d 502, 504, 207 N.E.2d 444.) This is particularly true if the identification testimony reveals a failure to assert or mention some physical feature in the appearance of the identified individual such as sideburns, mustache or a distinctive item of clothing. See People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232; compare People v. Marshall, 74 Ill.App.2d 483, 221 N.E.2d 133 and People v. Martin, 95 Ill.App.2d 457, 238 N.E.2d 205.

It is a general principle of evidence that the failure to assert a fact when it would have been natural to assert it amounts in effect to an assertion of the non-existence of that fact. (Wigmore, Evidence § 1042 ( 3d ed.).) The omission, that is, the fafiure to assert a fact, is prima facie inconsistent conduct which unexplained has the tendency to discredit a witness. See Skipper v. Commonwealth (1954), 195 Va. 870, 80 S.E.2d 401; compare State v. Archer (1927), 32 N.M. 319, 255 P. 396.

In this case, it was the prosecutrix’s testimony that earlier in the evening of October 19, 1968 and “a couple of times” before she had seen the man who raped her. It is natural to expect the prosecutrix to have initially asserted that the man who committed this offense was one she had seen in the place where she worked. Yet, it appears that when she complained to Detective Huffman, she did not teH him this important fact. Nor did she say this to anyone else. In addition, it appears from Detective Huffman’s testimony that she did not say the man who raped her wore a heavy mustache.

More significantly, on three different occasions between October 19, 1968 and April 22, 1969, the prosecutrix saw the defendant in the Korvette Lounge. She did not tell anyone there that the defendant had raped her nor did she have him arrested. During her testimony when she was asked for an explanation, the prosecutrix said that she feared for her life and safety of her children. We take judicial notice that the Korvette Lounge is in the 8100 block of South Cottage Grove Avenue, a densely populated area of Chicago and a place within easy reach of law enforcing authorities. Nothing in this record suggests that the prosecutrix was isolated from others or was alone in the presence of defendant when he came into the Korvette Lounge. In our judgment, this identification testimony of the prosecutrix is unsatisfactory; it is doubful, vague and uncertain; it raises a reasonable doubt of the defendant’s guilt. See People v. Charleston, 47 Ill.2d 19, 264 N.E.2d 199; People v. Kincy, 72 Ill.App.2d 419, 219 N.E.2d 662.

The second issue is whether the comments of the trial judge denied defendant a fair trial and deprived him of due process of law. Defendant’s contentions and arguments on this issue impel us to observe the comments which the trial judge made just before imposition of the sentence. He said:

“The testimony of penetration and that’s it. So we can say it’s attempt. If it is or anything else or aggravated battery or anything else, that’s what should have been done in this case and this is where justice does not prevail. And I don’t care who knows it. It’s unfortunate and terrible and everything else and I don’t know how I can sleep tonight sending this man to the penitentiary for four years. I must send him because the legislature says there is no probation on rape. It’s a minimum four years sentence as long as the State’s Attorney’s office will not corroborate to reduce it to something else. Give him some time. There is nothing else I can do except find him guilty, [sic].”

At the time these comments were made, it was the law that “[a] person convicted of rape shall be imprisoned in the penitentiary for any indeterminate term with a minimum of not less than four years.” (Ill. Rev. Stat. 1969, ch. 38, par. 11 — 1(c).) By statute, rape was not a probationable offense. (Ill. Rev. Stat. 1969, ch. 38, par. 117 — 1(a).) Therefore, it was the public policy of this State that the man who, in this case, committed the heinous offense described by the prosecutrix was to be imprisoned for a term not less than four years. If, beyond a reasonable doubt, defendant was that man, then sentencing him to the penitentiary for the minimum term required by law should not have occasioned any degree of nocturnal disquietude. These comments reveal dohbt that defendant was guilty of the rape with which he was charged. Having reached these conclusions, it is unnecessary that we resolve the remaining issue. The judgment is reversed.

Reversed.

SCHWARTZ and HAYES, JJ„ concur.


author: Mr. PRESIDING JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert Sykes, Defendant-Appellant.
    (No. 57286;
    First District (2nd Division)
    March 13, 1973.
    James J. Doherty, Public Defender, of Chicago, (Thaddeus L. Kowalski and Stanley Sacks, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, States Attorney, of Chicago, for the People.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

After a bench trial defendant was convicted of two charges of theft. He was sentenced to one year on each charge, the sentences to run consecutively. On appeal he contends that it was error to impose consecutive sentences, because both thefts arose out of same conduct, and that the sentence was excessive.

The arresting officer testified that he responded to a radio report of a theft in progress. Upon arriving at the scene he observed defendant in an automobile located in a parking lot. The doors of other vehicles in the lot were ajar. On the front and rear seats of the automobile defendant was occupying were, among other things, a tape player and a spare tire.

Complainants James McKinney and Charles Bastephens identified the tape player and the spare tire, respectively, as their property. Both complainants testified that when they had parked their automobiles in the parking lot the identified property was located therein. They further testified that defendant had not been given permission to remove or possess such articles.

Defendant initially contends that it was error to impose consecutive sentences for two offenses which resulted from the same conduct. When a person is convicted of two or more offenses which arise out of the same conduct, he cannot be sentenced for both, either concurrently or consecutively. Ill. Rev. Stat. 1971, ch. 38, par. 1 — 7 (m); People v. Duszkewycz, 27 Ill.2d 257, 189 N.E.2d 299. However, it is not improper to sentence for two offenses if the crimes are distinct and do not result from the same conduct, even though the unlawful acts are closely related in time and space. (See People v. Johnson, 44 Ill.2d 463, 256 N.E.2d 343; People v. Harper, 50 Ill.2d 296, 278 N.E.2d 771.) It is a matter of judicial discretion whether sentences imposed for two or more offenses which do not result from the same conduct should run concurrently or consecutively. (Ill. Rev. Stat. 1971, ch. 38, par. 1 — 7 (m); People v. Ledferd, 94 Ill.App.2d 74, 236 N.E.2d 19.) The issue, thus, is whether or not the offenses resulted from the same conduct of defendant.

Conduct is defined by statute as “an act or a series of acts, and the accompanying mental state.” (Ill. Rev. Stat. 1971, ch. 38, par. 2 — 4.) In the instant case the objects of the thefts were initially situated at different locations before defendant obtained or exerted unauthorized control over them. Therefore, one offense was necessarily completed before defendant commenced commission of the second offense. When defendant committed the second offense, he embarked on a new course of conduct which involved a separate intent to deprive a different owner of the use or benefit of different property than that which was involved in the first offense. The second offense was separate and distinct from the first offense, even though closely related thereto in time and space. Therefore, the two offenses did not arise out of the same conduct, and it was not error to sentence defendant for each offense with the sentences to run consecutively. See People v. Bellamy, 8 Ill.App.3d 606, 290 N.E.2d 645.

Defendant also contends that the sentences imposed were excessive. At the hearing in aggravation and mitigation evidence was adduced showing that defendant was 22 years of age, involved in, or seeking to become involved in a drug abuse program and had been convicted of theft five times previously. Under these circumstances the sentences were not excessive.

The judgment is therefore affirmed.

Affirmed.

LEIGHTON and HAYES, JJ., concur.

       Ill. Rev. Stat. 1971, ch. 38, par. 16 — 1(a) (1).


author: Mr. JUSTICE HAYES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Johnson, Defendant-Appellant.
    (No. 57331;
    First District (2nd Division)
    March 13, 1973.

      James J. Doherty, Public Defender, of Chicago, (Thaddeus L. Kowalski and Stanley Sacks, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Richard S. Jalovec, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE HAYES

delivered the opinion of the court:

In complaint No. 71-MCI-567927, Michael Johnson (hereinafter the defendant) was charged with failure to have in his possession a State Firearms Owner Identification Card at a time when he was in constructive possession of an assembled loaded 12-gauge double-barreled shotgun —all in violation of Ill. Rev. Stat. 1971, Chapter 38, Section 83 — 2(a). Defendant was also charged with failure to register the said weapon in violation of an ordinance of the City of Chicago. Originally he had been additionally charged with grand theft of an automobile and with the unlawful use of a weapon, but, prior to trial, the State had moved to dismiss these latter two charges with leave to reinstate. In a bench trial on pleas of not guilty to the two charges first stated above, defendant was found guilty of the charge first stated above, and not guilty of the second. After a hearing in aggravation and mitigation, he was sentenced to one year in the State Prison Farm at Vandalia, a sentence which is the maximum authorized sentence for the offense.

The sole issue presented in this appeal is whether or not the sentence is excessive, and we are urged to exercise the power vested in us under Supreme Court Rule 615 (Ill. Rev. Stat. 1971, Chapter 110(A), Section 615) to reduce it.

In order to evaluate the appropriateness of the length of the sentence, we must consider the facts brought out at the trial and at tire hearing in aggravation and mitigation.

At the trial, the sole witness for the State was Officer Frank Damico of the Chicago Police Department. He testified that, at about 2:00 A.M. on 14 June 1971, while he was alone on routine patrol in a police car, he observed a car being driven at a speed greater than the authorized speed limit. He gave chase and the car attempted to out-distance him. During the chase, he learned over the radio that the car was a stolen car, and he observed that the car had four male occupants: the driver and one passenger in the front seat, and the two other passengers in the rear seat. After a chase of some three blocks, the fleeing car stopped and all four men got out of the car and began to flee on foot. The officer apprehended the defendant about seven to twelve feet from the car. The officer testified that the defendant was the occupant of the front passenger seat, and that he (the officer) had had the defendant in view at all times from the moment the car stopped until the moment he apprehended the defendant. Returning to the car with the defendant, the officer saw on the floor of the car, immediately in front of the front passenger seat so that it would be approximately at the feet of the front seat passenger, an assembled double-barreled 12-gauge shotgun with the barrels pointing toward the drivers (or left) side of the car and the stock pointing toward the right side of the car. The gun was found to be loaded. Thereupon, the officer asked the defendant to produce a State Firearms Owner Identification Card, which defendant was unable to do.

Defendant testified in his own behalf. He stated that the driver of the car, whom he knew casually, had offered to drive defendant and a friend of his to their homes; that he and his friend had accepted the offer and had gotten into the rear seat of the car; that he was seated on the left hand side of the rear seat directly in back of the driver, and his friend on the right hand side directly in back of the front seat passenger; that he had seen the gun, but had never touched it; and that he and his friend had been in the car for only about five minutes when the police officer began to chase the car. He conceded that he had not had a State Firearms Owner Identification Card in his possession. His friend testified and essentially corroborated the defendant’s testimony.

At the hearing in aggravation and mitigation, the State, in aggravation, offered merely the facts of the case as testified to by Officer Damico. In mitigation, it was established that the defendant was 18 years old, was working and living at home with his parents, and had no prior criminal record. In addition, there was, of course, no evidence that defendant had used the gun.

In imposing the maximum authorized sentence of one year, the trial judge indicated what he had in mind by saying:

“Here is a situation where there are four young men in an automobile, a high speed police chase for three blocks * * *, it is two o’clock in the morning * * * sawed off, loaded shotgun * * * if ever in my humble opinion, if ever the streets are to be made safe in Chicago, as much as we can, and if ever the maximum penalty prescribed is to be given, this would be and it is the type of case.”

We note that the trial court must have believed the testimony of Officer Damico and disbelieved the testimony of defendant and his friend. It is elementary that the credibility of witnesses is peculiarly a matter for the discretion of the trial court. We note also that, presumably from the visual inspection of the gun at the trial, the court described the shotgun as “sawed-off”, a significant circumstance in sentencing. The trial judge’s summation of the circumstances which he had in mind in imposing the maximum authorized sentence is also significant (bearing in mind that the court must have disbelieved the testimony of the defendant and his friend): Four young men in a stolen car at two o’clock in the morning, speeding and then attempting to out-distance a pursuing police car in a high speed chase of three blocks, with an assembled loaded double-barreled 12-gauge sawed-off shotgun lying at the feet of the front seat passenger. We note further that the charge of unlawful use of a weapon was dismissed by the State, and that this charge was potentially far more serious than the offenses prosecuted, if the length of the barrels of the sawed-off shotgun was less than 18 inches (a fact as to which the record affords us no information). Ill. Rev. Stat. 1971, Chapter 38, Section 24 — 1(b).

On this state of the evidence, we cannot say that the sentence is manifestly excessive so as to call for what is intended to be a rare exercise of our power to reduce it under Supreme Court Rule 615.

Judgment and sentence affirmed.

STAMOS, P. J., and LEIGHTON, J., concur.


text:
    Gudrun Holloway, Defendant-Appellant, v. David Holloway, Plaintiff-Appellee.
    (No. 55943;
    First District (2nd Division)
    February 20, 1973.

      Rehearing denied March 20, 1973.

      Gomberg, Missner & Schaps, of Chicago, (Sidney D. Missner, of counsel,) for appellant.
    Epstein, Wilsey & Kirsh, of Chicago, (Sanford Kirsh, of counsel,) for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

Appellant Gudrun Holloway and appellee David Holloway were married in January 1966. Gudrun is a beautician; David is a Chicago police detective. On May 23, 1967 they became the parents of a little girl whom they named Tammy Mona. March 12, 1968, Gudrun and David were divorced. By an agreement between them, Gudrun was to have the custody of Tammy and David was to pay for support of the child, with rights of visitation.

After the divorce, Gudrun lived in an apartment in Chicago and worked until 9:00 P.M. four days a week, Wednesday through Saturday. She obtained a babysitter for Tammy. Between September 15, 1968 and December of that year, Gudrun could not get a babysitter. Therefore, David’s fiancee, the woman he later married, agreed to care for Tammy. This required that the child be taken to “the other end of town” where Tammy stayed every day except Monday and Tuesday.

In 1969, from June 27 until just before Christmas, Gudrun gave the care and custody of Tammy to David and his mother. David’s mother lived in Carbondale, a community in southern Illinois. On August 12, 1969, Gudrun and David signed an agreement which, after referring to Tammy, recited that “* * # unfortunate and irreconcilable difficulties have arisen between mother and minor child, as a result of which they are not now living together * # ° [and] if it were not due to this agreement, the mother would be forced to give the child up and put this minor child into a foster home * * The agreement provided that David was to have custody of Tammy, reserving for Gudrun “reasonable visitation rights.” Tammy remained in David’s care either in Chicago or with his mother in Carbondale. Then, early in 1970, after Gudrun moved to another apartment, Tammy was again living with her; On or about April 18, 1970, Gudrun wrote the following handwritten letter to David’s mother:

“Dear Mrs. Holloway:
I realize that I should have let you know how Tammy is a long time ago, but there has been too much tilings I had to do. I have no phone anymore, but hope to get one in my next apartment. I’m moving end of April. So everything is messed up. Tammy has not been happy as she should be ever since she came back. I know I made a mistake taking her back like this, because I really do not spend any time with her at all except on Monday and Tuesday * ”

A short time later, Gudrun asked David to take Tammy to his mother’s home in Carbondale. He did, and from early in May to the end of June 1970, Tammy remained either with David’s mother or with him in Chicago.

On June 30, 1970, in the divorce case, David filed a petition alleging that Gudrun, after receiving custody of Tammy, failed to provide her with a home by keeping her with babysitters, with her paternal grandmother and with him “for months on end.” David prayed that the divorce decree be modified and that he be given the custody of Tammy, subject to Gudrun’s rights of visitation. After hearing evidence that consisted of testimony and documents, the trial court found that Tammy had been subjected to an unstable homelife; that she had been shunted from apartment to apartment, babysitter to babysitter; that she had lived' with David and David’s mother from time to time; that in signing the agreement with David and in writing the letter to David’s mother, Gudrun revealed her inability to care for Tammy; that David had remarried and could provide Tammy with a good home because his present wife knew the child and wanted her. Therefore, the trial court ruled that in Tammy’s best interests, she should be in David’s care and custody, with “very liberal visitation rights” in favor of Gudrun. Accordingly, the trial court modified the custody provisions of the divorce decree and changed Tammy’s custody from Gudrun to David. Gudrun appeals to this court. The only issue she presents is whether the trial court committed reversible error in modifying the custody provisions of the divorce decree.

In resolving this issue, we recognize that in matters of child custody, a trial court’s determination should not be reversed unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has been done. (Wade v. Wade, 345 Ill.App. 170, 183, 102 N.E.2d 356; Hahn v. Hahn, 69 Ill.App.2d 302, 305, 216 N.E.2d 229; Girolamo v. Girolamo, 5 Ill.App.3d 627, 632, 283 N.E.2d 713.) This case reveals that between March 12, 1968 and June 30, 1970 when David petitioned the court, Gudrun lived in three different apartments. During that period, when she had Tammy in her custody, much of the actual care of the child was discharged by babysitters. On at least three occasions, Gudrun voluntarily relinquished Tammy’s care and custody either to David, his fiancee or his mother. In contrast with Gudrun’s situation, when the order changing custody was entered, there was proof that David had remarried and was able to give Tammy a good home with a wife who knew the little girl and wanted her as part of the family.

Stability of environment is an important factor in determining what is in the best interest of a child. (Cave v. Cave, 2 Ill.App.3d 782, 276 N.E.2d 793.) Voluntary relinquishment of a child’s custody and subsequent marriages of its parents are normally sufficient changes of circumstances to warrant change of custody, without regard to the fitness of the person to whom care of the child has been judicially authorized. (Kline v. Kline, 57 Ill.App.2d 244, 205 N.E.2d 775; Carstens v. Carstens, 108 Ill.App.2d 439, 248 N.E.2d 135.) In weighing these factors, the guiding star in determining the custody of minor children is the best interest of the child. Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300.

The trial judge in this case heard evidence consisting of extensive testimony by the parties immediately involved. David supported the allegations of his petition with the testimony of his mother and that of five other witnesses including a physician who examined and treated Tammy at David’s request. In addition, he introduced into evidence two documents: the agreement of August 12, 1969 and Gudrun’s letter to his mother. We think it important that the trial judge did not find Gudrun an unfit mother. Instead, without reflection on her, he decided only that she was not able to care for her child. Accordingly, recognizing that deciding questions concerning the custody of a child was “[o]ne of the most awesome responsibilities that a court has * * the trial judge, modified the divorce decree and changed the custody of Tammy to David with “liberal” visitation rights for Gudrun. This was not reversible error. (Wilner v. Wilner, 131 Ill.App.2d 891, 266 N.E.2d 918.) In our judgment, the order was adequately supported by the evidence and did justice to the parties. It is affirmed.

Affirmed.

SCHWARTZ and McGLOON, JJ., concur.


author: Mr. JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Savaiano, Defendant-Appellant.
    (No. 56377;
    First District (4th Division)
    February 21, 1973.

      Rehearing denied March 21, 1973.

      Peter N. Apostal, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Cary Lind, and Robert Samko, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Anthony Savaiano, was charged with theft. (Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1(a)(1).) After a bench trial, he was found guilty and sentenced to two to six years in the Illinois State Penitentiary. Defendant raises five issues on appeal:

(1) That the trial court erred in denying his motion for substitution of judges;
(2) That his jury waiver was coerced;
(3) That the trial court erred in refusing to issue compulsory process upon a third party in order to determine the whereabouts of an absent alibi witness;
(4) That an error was committed with respect to Mrs. Groppi’s identification of the defendant; and
(5) That he was not proven guilty beyond a reasonable doubt.

On June 24, 1970, Marie Groppi was employed as a maid at the Holiday Inn in Hillside, Illinois. Mrs. Groppi testified that at approximately 1:30 P.M., the defendant entered Room 110 while she was cleaning it. She further stated that the defendant was in the room with her for five to ten minutes and spoke to her for a couple of minutes. She stated that defendant remained in Room 110 after she left to clean other rooms. Later she saw the defendant walking down the hall with a television set. She noticed that the door to Room 110 was open and the television set was gone. Mrs. Groppi testified that she watched the defendant load the television set into a white car and that she wrote down the license plate number of the car, HV2427.

Detective Donovan testified that license plate number HV2427 was issued to the defendant, Anthony Savaiano. Barbara Detlaf, alibi witness for the defendant, testified at the preliminary hearing that she was having lunch with the defendant at the time the theft occurred.

Defendant testified that he did not steal the television set and that he was having lunch with Barbara Detlaf at the time the theft occurred. He also testified that he had removed his license plates from his car and placed them on the car of a friend, James Rini. Defendant stated that Rini had the car with HV2427 license plates on June 24, 1970. At the time of the trial, defendant was unable to locate him and Detlaf. Defendant’s first contention on appeal is that the trial court erred in denying his motion for substitution of judges.

On July 15, 1971, defense counsel stated that the defendant did not wish to substitute judges. Prior to this motion, a jury had been waived; the witnesses had been sworn; facts had been stipulated to; and tire trial judge had denied defense counsel’s motion to have Barbara Detlaf’s mother subpoenaed.

It is well settled that a petition for substitution of judges must be filed at the earliest practical moment and that petitions delayed until after the trial judge has by his rulings passed upon substantive issues, and indicated his views on the merits of the cause, come too late. (People v. Wilfong, 17 Ill.2d 373, 162 N.E.2d 256; People v. McDonald, 26 Ill.2d 325, 186 N.E.2d 303; People v. Lawrence, 29 Ill.2d 426, 194 N.E.2d 337; People v. Jones, 2 Ill.App.3d 575, 277 N.E.2d 144.) In the case at bar, defendant did not move for a substitution of judges until after the trial had begun and the trial judge had refused to compel Mrs. Detlaf’s attendance in court to reveal where her daughter was. The motion was presented too late and therefore, the trial judge correctly denied defendant’s motion.

Defendant’s second contention on appeal is that his jury waiver was coerced. This contention was not raised on defendant’s written motion for a new trial. “Where the grounds for a new trial are stated in writing, the accused is limited on review to the errors alleged therein and all other errors are deemed to have been waived. * * People v. Hairston, 46 Ill.2d 348, 366-367, 263 N.E.2d 840.

Defendant’s third contention on appeal is that the trial court erred in refusing to issue compulsory process upon a third party in order to determine the whereabouts of an absent alibi witness. Mrs. Detlaf was not a material witness in the instant case. Defendant wanted to bring Mrs. Detlaf into court in order to find out where her daughter was. Mrs. Detlaf’s daughter, (not Mrs. Detlaf), was an alibi witness for the defendant. The trial court is not required to issue compulsory process upon a person who is not a material witness in the case. The trial judge soundly exercised his discretion in deciding not to issue compulsory process. Defendant had adequate time to secure Barbara Detlaf’s appearance at the trial.

Defendant’s fourth contention is that an error was committed with respect to Mrs. Groppi’s identification of the defendant. Mrs. Groppi testified that she looked at over 100 pictures and identified one as that of the defendant. The record does not reflect that the police officers in any way directed her attention to the defendant’s photograph or in any way suggested that he was the thief.

Officer Donovan was cross-examined extensively at the trial relative to the photographic identification and such examination failed to expose any potential for error in the photographic identification procedures. Defendant was not taken into custody until after Mrs. Groppi made the photographic identification. We find that the procedure used to identify the defendant by photograph was fair and not suggestive. Moreover, even assuming that defendant’s picture was identified during an unnecessarily suggestive procedure, a sufficient independent basis of identification exists to sustain the in-court identification of the defendant. Mrs. Groppi was in the same room with the defendant for about ten minutes and talked to him for a couple of minutes. Mrs. Groppi had a sufficient unimpaired view of the defendant in Room 110 upon which to base her in-court identification.

Defendant’s fifth contention on appeal is that he was not proven guilty beyond a reasonable doubt. Mrs. Groppi positively identified the defendant as the person she saw take the television set from Room 110. She had ample opportunity to observe defendant under good lighting conditions in Room 110. Defendant’s license plates were on the car into which the stolen television set was loaded. Furthermore, the fact that defendant produced an alibi, supported by one witness, does not, in and of itself, constitute reasonable doubt as to his guilt. Conflicts in testimony are for the resolution of the trial judge and he is not obliged to believe the alibi testimony of the defendant and Barbara Detlaf over the positive identification of Mrs. Groppi. People v. Setzke, 22 Ill.2d 582, 586, 177 N.E.2d 168.

The trier of fact makes the determination of the witness’ credibility and as we find that the evidence is not so unsatisfactory as to create a reasonable doubt of defendant’s guilt, that determination will not be disturbed. People v. Holt, 124 Ill.App.2d 198, 201, 260 N.E.2d 291.

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

Judgment affirmed.

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