author: Mr. JUSTICE McGLOON

text:
    Lillie Seipp, Plaintiff-Appellant, v. The Chicago Transit Authority et al., Defendants-Appellees.
    (No. 57335;
    First District (3rd Division)
    June 7, 1973.

      Philip Z. Levinson, Jules Gershon, and Jerome M. Kaplan, all of Friedlander, Levinson & Gershon, of Chicago, for appellant.
    James P. Daley, Robert Schmiege, James G. O’Donohue, Jerome Dixon, and Michael J. Gerrard, all of Chicago, for appellees.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is an action for personal injuries based on negligence. At a jury trial in the circuit court of Cook County the court directed a verdict for the defendants on the question of liability and dismissed plaintiff’s complaint at the close of plaintiff’s evidence. Plaintiff appeals from the order granting defendants’ motion for a directed verdict.

Plaintiff presents three issues for review: 1. Whether the court erred in excluding evidence of conduct by defendant Chicago Transit Authority after the accident had occurred to show that the C.T.A. had control over the premises on which the accident took place, 2. Whether the C.T.A. is liable for personal injuries where the occurrence took place on property owned by defendant Chicago and Northwestern Railway Company (hereafter called Northwestern) but used by passengers of the C.T.A. as a means of ingress and egress to the C.T.A. rapid transit station, and 3. Whether the Northwestern is hable for personal injuries to the plaintiff who was injured while walking along a path which was situated on Northwestern property.

We affirm.

Plaintiff was a middle-aged woman who lived in Skokie, Illinois, but who worked in Chicago. She used the facilities of the defendant C.T.A. as her means of getting to and from work. On November 2, 1966, as was her usual habit, she took the Skokie Swift, which was part of the C.T.A. system, to the end of the line in Skokie at which point she got off the train. She alighted onto a platform on the east side of the train. The train was facing north. The train having stopped, she walked from the platform, down stairs, and crossed two C.T.A. tracks in front-of the train. The platform on the west side of the tracks was used by passengers who were going to Chicago. Between the platform and Terminal Street, which was west of the C.T.A. tracks and parallel to them, was a grassy field approximately in the middle of which ran a railroad track owned by the Northwestern which was parallel to the C.T.A. tracks and Ter mb nal Street. The paved area with steps leading to the C.T.A. platform on the west side of the tracks was protected by a wooden fence. The fence did not extend in a northerly direction as far as the pavement extended. Therefore, on the evening in question, plaintiff was able to walk past the end of the fence and onto a dirt path which ran from the C.T.A. pavement across the Northwestern track. At a point just west of the Northwestern track, the dirt path, which was unimproved in any way at the time of the accident, branched into two forks, both of which ended at Terminal Street. The dirt path had a slight grade and was used by persons cutting across the field. At about 5:45 P.M. on the evening in question, plaintiff walked down the incline, across the Northwestern tracks to a point midway between the track and Terminal Street. At this point she testified at trial that she stepped into a rut covered by snow in the path and fell on her right side, and as a result of this accident she sustained serious injuries to her arm. She testified that she was wearing boots and that there was a light snowfall on the path. She was walking by herself, but she testified the station was busy and that many people used the dirt path as a means of egress and ingress to the Skokie Swift terminal. Dorothy Long, Mrs. Seipp’s daughter, testified that the path had been in existence for about a year before the occurrence and had developed coincidentally with the coming of the Skokie Swift to the area. Mrs. Seipp testified that she had used the path for about seven months prior to the accident.

On cross-examination of Mrs. Seipp, the defendants established that the C.T.A. had provided a paved, well-lighted walk for its passengers that headed in a northerly direction from the west side of the Skokie Swift tracks to Dempster Street, which ran east and west. The paved path ran parallel to the C.T.A. tracks and led to the south side of Demp-ster Street. There was some dispute as to whether the south side of Dempster Street was paved or was covered by cinders in the area where the paved walk led. The north side of Dempster Street was paved. Plaintiff’s residence was located west of Terminal Street, and therefore west of the Northwestern track and the Skokie Swift Terminal, but it was located south of Dempster Street and north of the Skokie Swift platform. In order to take a paved route to her residence, plaintiff would have to cross Dempster Street to the north paved side of the street, proceed westbound, and then recross Dempster. Plaintiff referred to the dirt path which she actuaHy took as a shortcut to her home. When taking this shortcut, plaintiff would necessarily have to pass the point at which the paved path to Dempster Street began. The dirt path ran perpendicular to the paved path.

The dirt path was not well lit. There was a lamppost on Terminal Street, approximately half way between the dirt path and Dempster Street, which indirectly cast some light upon the dirt path, but there were ho artificial lights which were intended to illuminate the dirt path. Plaintiff sustained her injuries while waiting on property which the Northwestern owned. It was stipulated that seven freight trains per week passed the point of the occurrence and that the Northwestern made daily track inspections in the area. The Northwestern did not have a station in the area, and its trains did not stop there.

One of the plaintiff’s theories was that although the accident took place on Northwestern property, the C.T.A. exercised control over the dirt path to such an extent that it had a duty to provide a safe path for its passengers who used the path as a means of egress and ingress to the station, and that the presence of a rut in the path which proximately caused plaintiff’s injuries showed that the C.T.A. was negligent in maintaining the path.

In her complaint, plaintiff alleged that the C.T.A. had control over the dirt path at the time of the occurrence and that the C.T.A. recognized this path as a much travelled route of its passengers, and acquiesced in its use as such. On defendants’ motion, made before the hearing of any testimony and after considerable discussion, the court ordered the plaintiff not to mention or bring into the issues any evidence of repairs that either of the defendants performed subsequent to the accident. Plaintiff then proceeded to make an offer of proof, still outside the presence of the jury, that subsequent to the accident the C.T.A. established steps from its property down the incline of the dirt path and that it laid crushed stones on the dirt path to improve its surface. Counsel for the C.T.A. admitted that the C.T.A. established the steps in 1970 and laid crushed stones. It appears from the record that the C.T.A. laid the crushed stones at approximately the same time that it established the steps. The record does not disclose exactly how much of the path was covered with stones. The court admitted plaintiff’s exhibit number 1 which was a letter written on the stationery of the C.T.A. for the purpose of the offer of proof but not as evidence for the jury. The letter, dated March 17, 1971, was written by James R. Quinn, vice chairman of the C.T.A., and was as follows:

“March 17, 1971
Mr. A. G. Borowsky
5025 Crain Street
Skokie, Illinois 60076
Dear Mr. Borowsky:
Pedestrians walking across the Chicago and North Western Railway right-of-way west of our Skokie Swift terminal to reach the terminal are, in effect, illegally crossing the North Western property, and we have no right to recommend improvements.
We have already gone beyond our prudent judgment in the spreading of crushed stone and constructing steps on someone else’s property for the convenience of our patrons who make use of this crossing. Suggestions to the railroad would not be well received as it would establish the existence of a crossing of their railroad and, undoubtedly, would necessitate complete crossing protection, as required by the I.C.C.
I believe it is advisable to keep this crossing strictly on an informal basis. To go beyond this would, in my opinion, lead eventually to the fencing of the right-of-way by the North Western to prevent the crossing, which I am sure neither you or others want. I appreciate the interest that prompted you to write and regret that my reply could not be more favorable.
Yours very truly,
/S/ James R. Quinn
James R. Quinn
Vice Chairman”

During the direct examination of plaintiff Seipp, counsel continued to attempt to elicit evidence of subsequent repairs and asked Mrs. Seipp whether any changes had taken place since the accident occurred. Defendants’ objection to the question was sustained. Outside the presence of a jury, the court held a hearing at which plaintiff’s counsel made an offer of proof that if plaintiff were permitted to testify she would testify that the C.T.A. constructed a set of steps leading from the station to the dirt path, which was partially on the property of the C.T.A. and partially on the property of the Northwestern. The offer of proof further purported to show that plaintiff would identify exhibits , which portrayed the steps and gravel in question. After considerable discussion, the court refused the offer of proof.

Plaintiff contends that the trial court erred in refusing to allow her to testify about the subsequent repairs pursuant to the offer of proof. Our courts have held that evidence of subsequent repairs is not admissible for the purpose of showing prior negligence, but is admissible for the purpose of showing who had control of the premises on which the injury occurred when control is an issue. (Kellems v. Schiele (1938), 297 Ill.App. 388, 17 N.E.2d 604.) In a proper case, the court may admit evidence for the purpose of showing control under a limiting instruction which warns the jury not to consider the evidence for the purpose of the issue of negligence. (Dallas v. Granite City Steel Co. (1965), 64 Ill.App.2d 409, 211 N.E.2d 907.) The admission of evidence of subsequent repairs to show control is an exception to the general rule.

The record shows that the trial judge refused to admit evidence of subsequent repairs or improvements for two main reasons. First, he anticipated that any evidence which showed that the C.T.A. exercised control over Northwestern property might be prejudicial to the Northwestern on the issue of liability in that the jury might be led to believe that the Northwestern acquiesced in the use of its property by the C.T.A. On the contrary, the Northwestern maintained that any improvements which the C.T.A. made on Northwestern’s property were the acts of a trespasser and were made without the Northwestern’s permission. Second, he thought that the date of the construction of the steps in February, 1970, was too remote in time from the date of the occurrence in November, 1966, to be probative of the fact that the C.T.A. exercised control over the path at the time of the accident. We think that it was not error for the trial court to refuse plaintifFs offer of proof.

Because the plaintiff based her case on the theory that the C.T.A. acquiesced in the use of the dirt path as a means of ingress and egress to the Skokie Swift station, caution must be exercised so that the jury is not led to the conclusion that because the C.T.A. constructed steps in 1970, it necessarily acquiesced in the use of the natural path as an informal means of egress and ingress in 1966. The record also suggests 1970 as the year in which the C.T.A. laid the crushed stones, and in the absence of any proof to show that the laying of the crushed stone and the construction of the steps were proximate in the time to the date of the occurrence, we believe the trial court acted properly in refusing to admit plaintiff’s testimony. Wood v. Prudential Insurance Co. (1933), 271 Ill.App. 103.

Plaintiff contends that the C.T.A. is liable to her for the injuries she sustained while walking on the dirt path, even though the accident occurred on that portion of the path which was located on the property of the Northwestern. There is a duty to provide an invitee with a reasonably safe means of ingress and egress, both within the confines of the premises owned or controlled by the inviter, and, within limitations dictated by the facts of the case, beyond the precise boundaries of such premises. (McDonald v. Frontier Lanes, Inc. (1971), 1 Ill.App.3d 345, 272 N.E.2d 369.) We think the C.T.A. fulfilled its duty to its passengers by providing the illuminated paved path from the terminal to Dempster Street. The plaintiff knew of this route but elected to take a shortcut to her home, even though, as she testified, she knew that the dirt path was covered with snow and contained many ruts.

In McDonald, the court held defendant bowling establishment liable for injuries plaintiff sustained from falling in a rut on city property which was adjacent to defendant’s parking lot. The court pointed out that there was no designated walk area between the door of the bowling establishment and the street, where many of defendant’s patrons parked their cars, and therefore, in the absence of such designated walk area, defendant owed a duty to its patrons to maintain those portions of its property and adjacent property which it assumed as a means of ingress and egress for its patrons.

When a means of ingress and egress is prescribed for invitees, it is the duty of the inviter to properly illuminate, give adequate warning of, or cause to be repaired a known, dangerous condition. (Cooley v. Makse (1964), 46 Ill.App.2d 25, 196 N.E.2d 396.) In Cooley, which plaintiff cites, the city-owned sidewalk on which plaintiff fell was the only means of ingress and egress to defendant’s building. The court in Cooley found defendant tavern owner liable for injuries that a patron sustained as a result of falling into a natural defect in a brick wall which defendant knew was dangerous. Viewing the evidence in the instant case in its aspect most favorable to the plaintiff, as we must in deciding whether the trial court erred in directing a verdict for the defendant (Pedrick v. Peoria and Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504), we find no evidence that the G.T.A. either prescribed the dirt path to its patrons as a means of egress or ingress or assumed its use as such at the time of the accident. Plaintiff’s suggestions to the contrary are not supported by the evidence.

Plaintiff’s third contention is that the Northwestern is liable to the plaintiff because the injury occurred while plaintiff was on Northwestern property. Plaintiff argues that the Northwestern knew that many people crossed its tracks and, therefore, had a duty of either maintaining the crossing in a proper manner, or fencing the property so that passengers of the G.T.A. could not use it as a shortcut. Plaintiff claimed she was an invitee on the Northwestern property; the Northwestern claimed that at most she was a licensee. The record indicates that plaintiff went on the Northwestern property for her own convenience; she was not an invitee.

Viewing the evidence in the light most favorable to plaintiff (Pedrick v. Peoria and Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504) at most the Northwestern knew that patrons of the G.T.A. used the property as a shortcut. Even charged with this knowledge, the landowner’s duty to a licensee is to disclose or warn against hidden dangers of which the landowner has knowledge. Schoen v. Harris (1969), 108 Ill.App.2d 186, 246 N.E.2d 849; Hessler v. Cole (1972), 7 Ill.App.3d 902, 289 N.E.2d 204.

In Dent v. Great Atlantic & Pacific Tea Co. (1955), 4 Ill.App.2d 500, 124 N.E.2d 360, the court held that a licensee must avoid at his peril an open hole which is concealed only by darkness. In the instant case, plaintiff knew that there were ruts covered with snow on the dirt path. Nevertheless, in poor light, she used the path. This is not a situation as in McDaniels v. Terminal Railroad Ass’n (1939), 302 Ill.App. 332, 23 N.E.2d 785, which plaintiff cites, where plaintiff was injured on a railroad’s property by a heavy timber, which employees of the railroad negligently threw off a viaduct which was above the property. In that case, the court held that the railroad knew or should have known that the public used a path along its tracks and that it owed a duty to the public to keep a lookout for persons using the path.

The trial court did not err in directing verdicts for both defendants on the issue of liability. For the above reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

DEMPSEY, P. J„ and McNAMARA, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SCHWARTZ

license: Public Domain

text:
    William E. O’Connor, Plaintiff-Appellant, v. George D. Sullivan, Defendant-Appellee.
    (No. 55004;
    First District (3rd Division)
    June 14, 1973.

      Cummings & Wyman, of Chicago, (Stanley M. Cahn, of counsel,) for appellant.
    Sullivan and Sullivan, of Chicago, (William J. Harte and Philip Rock, of counsel,) for appellee.
   Mr. JUSTICE SCHWARTZ

delivered the opinion of the court:

This is a suit in chancery in which plaintiff seeks to recover what he alleges to be an interest in real estate valued at $150,000. His claim is based on services allegedly performed for defendant in connection with the purchase of the real estate. The cause was referred to a master who found that there was no equity in the claim and that, in any event, the plaintiff was barred from asserting such a claim under the Real Estate Brokers and Salesmen Act (Ill. Rev. Stat. 1969, ch. 114½, par. 2b). The chancellor adopted the master’s finding and recommendations and entered a decree accordingly. Plaintiff urges that the findings of the master are contrary to the manifest weight of the evidence, and that the chancellor’s decree based thereon is erroneous. The facts follow.

Defendant and his family were owners of the Acme Furnace Fitting Company of Chicago. Plaintiff was employed as president and general manager of the company at an annual salary of $15,000. Under plaintiff’s management the company suffered a drastic decrease in net worth, and was eventually adjudicated bankrupt on June 17, 1960. As an outgrowth of the bankruptcy, a claim was made by the trustee for $23,000 against plaintiff for expenses plaintiff had incurred for his own personal benefit out of company funds. Defendant paid the $23,000 and received an assignment of the claim the trustee had against the plaintiff. Plaintiff maintained that defendant had approved these expenditures, but this was denied by the defendant. Satisfaction from plaintiff on this claim has never been received by defendant.

Early in 1960, plaintiff learned that the Southmoor Golf Club, located in Palos Park, Illinois, was being offered for sale at a price of $1,200,000. Plaintiff, an excellent golfer and a commissioner of the Village of Palos Park, was an old friend of Ben T. Stevenson, the owner of the golf club. In March 1960, plaintiff was informed by one William J. Howe that a group headed by Howe was interested in buying the Southmoor Golf Club and retaining plaintiff as its manager. Plaintiff testified that he told Howe he might be able to get a lower price in view of his friendship with Stevenson. Plaintiff maintains that his negotiations with Stevenson resulted in the reduction of the asking price to $1,050,000, with the understanding that plaintiff would be a principal in the purchase. A letter written by Stevenson to plaintiff’s attorney, Austin Wyman, at plaintiff’s suggestion, was introduced into evidence at the masters hearing. It stated that plaintiff had informed Stevenson that any reduction in his original asking price would become the plaintiff’s equity in the purchase, and that on the basis of his long friendship with plaintiff and prior services rendered to him by plaintiff, he would reduce the asking price by $150,000.

Plaintiff informed defendant of the proposed purchase. He testified that he asked defendant, who was an attorney and whose law firm had previously handled a personal injury claim for the plaintiff, to represent his interest in the purchase. Plaintiff further testified that defendant agreed to represent him and remarked that plaintiff had made $150,000 for himself, Defendant, however, denied ever agreeing to represent the plaintiff in the purchase or speculating what the plaintiff might realize from the transaction.

Richard Regan, the Acme Company bookkeeper, testified concerning a letter he had written to plaintiffs attorney. It purported to state that Regan overheard the conversation between defendant and plaintiff during which, it is alleged, defendant agreed to represent plaintiff in the sale, and that defendant suggested plaintiff take steps to protect his $150,000 interest. However, Regan further testified that he wrote the letter under duress from the plaintiff who was his immediate supervisor at Acme; that he never overheard the conversation in question, and that the contents of the letter were dictated to him by the plaintiff.

Patricia Strenk, another Acme employee, testified that she heard plaintiff request Regan to write the letter in question; that Regan wrote the letter himself; and that while plaintiff might have remained in the room while Regan was writing the letter, he did not watch Regan work on the statement, although Regan read it to him when it was completed.

On learning of the proposed sale, defendant became interested in joining with the Howe group as a principal in the purchase. This was suggested at a meeting of the Howe group with plaintiff and defendant; however, the offer to include defendant as a principal was rejected by the Howe group, and they subsequently withdrew from the proposed transaction.

Defendant then began negotiations with Stevenson for the purchase. On July 1, 1960, a sale was completed whereby Stevenson would accept $500,000 cash and take back a purchase-money mortgage for $550,000. Defendant then organized the Palos Country Club, Inc., and solicited stock subscriptions at 500 per share. He also contacted one Arthur Feicht with regard to joining in the purchase, and Feicht agreed to contribute $250,000 to the initial cash requirement of the sale and $50,000 to the initial operating expenses of the golf club. Feicht’s interest was held by two corporations in which he was the controlling stockholder, the AJF Corporation and the BHF Corporation, which in turn formed a three-way partnership with the Palos Country Club, Inc., in the ownership and operation of the golf course. Feicht agreed that for his contribution his two corporations would each receive a 23-per cent interest in the property and the Palos Country Club would retain a 54-per cent interest. Richard Murphy, Jr., Feicht’s attorney, testified that it was his understanding that the plaintiff would receive the 8-per cent differential between defendant’s ownership percentage and Feicht’s. Defendant’s son, George Sullivan, Jr., testified that Murphy was mistaken as to the purpose of the ownership percentage differential; that Feicht was never told the plaintiff was to have an interest in the property; and that the ownership percentage differential resulted from defendant’s belief that since he initiated the- purchase he should have the controlling interest in the property.

Plaintiff was retained as the golf club manager at an annual salary of $15,000. In December 1960, he received from defendant a document antedated July 1, 1960, which was entitled “Temporary Certificate of Beneficial Interest.” This document stated that subject to the approval of the directors and shareholders, plaintiff was the beneficial owner of 56,800 shares of Palos Country Club, Inc. stock. Plaintiff at this time also signed a stockholder’s stock restriction agreement.

There is no evidence that the directors and shareholders ever approved the stock distribution to the plaintiff. Walter Richards, a Palos Country Club director, testified that at an informal directors’ meeting in December 1960, the defendant proposed to the board that the plaintiff’s stock distribution be approved, and that he vetoed the proposal because of the poor job plaintiff had been doing in managing the golf club. The club had lost over $100,000 during the fall of 1961, under plaintiff’s management.

Timothy Keough, a close friend of the plaintiff, testified that he had purchased Palos Country Club stock at plaintiff’s suggestion and had subsequently become a director of the corporation; that he attended every directors’ and shareholders’ meeting to which he .received notice; that he was told by defendant that the plaintiff was also a director of the corporation; and that he never attended a meeting where plaintiff was not present or where plaintiff’s management of the club was criticized or the plaintiff’s interest in the corporation discussed.

Plaintiff testified that he learned from Timothy Keough that the subscriptions on the corporation’s stock had been sold for 500 per share, and that being shocked by this information he confronted the defendant who informed him that the value was indeed only 500 per share and that plaintiff’s stock interest was worth only $28,000. Plaintiff further testified that a few days later he again met with defendant; that defendant offered him $1.00 per share for his stock; and that plaintiff advised him he would consider the offer. Defendant testified that he never made plaintiff an offer of $1.00 per share for his stock because plaintiff never had any stock to begin with. Plaintiff again met with defendant in the latter’s office and demanded $150,000 or evidence of his interest in the golf club for that amount. Defendant told plaintiff that he had no interest in the property and deserved none in light of his record in managing the Acme Company and the golf club. Plaintiff then filed this suit.

Subsequently, plaintiff instituted proceedings which placed the golf club in receivership. Further, he enlisted creditors to file an involuntary petition in bankruptcy against the golf club. The report of the master found it was unbelievable that the plaintiff was to receive $150,000 for the services he rendered, regardless of what interest the defendant or his associates would obtain if the purchase from Stevenson were consummated. The report further found it incredible that a person who honestly believed he had a legitimate claim for $150,000 interest in the golf club or against the defendant would become instrumental in filing an involuntary petition in bankruptcy against the golf club.

The master found in his report that the acts performed by the plaintiff in connection with the transaction in question were those of a real estate broker; and that regardless of whether plaintiff did or did not literally hold himself out to be a broker, his activities were such as to bring him within the prohibitions of 111. Rev. Stat. 1969, ch. 114%, par. 2b, which bars recovery of any compensation for brokers’ services performed by one not duly certified as such by the State. We proceed to a consideration of plaintiff’s points upon appeal.

Here, the master heard the evidence and submitted his findings and recommendations to the trial court which adopted the master’s report and entered a decree accordingly. Plaintiff cites Babray v. Carlino, 2 Ill.App.3d 241, in support of his contention that in such cases a reviewing court may delve into the evidence presented to the master and decide anew where the preponderance lies. While there exists authority, such as the Babray case, for that position, the great weight of the authority is to the contrary. (Suwalski v. Suwalski, 40 Ill.2d 492; Horan v. Blowitz, 13 Ill.2d 126; Kioutas v. City of Chicago, 59 Ill.App.2d 441.) In cases where the trial court has rejected the findings and recommendations of the master, a reviewing court can examine the evidence from an unrestricted perspective. Where the trial court has adopted the masters findings and recommendations, the standard of review on appeal is the same as where the trial court has conducted the hearing and heard the evidence itself; that is, whether the manifest weight of the evidence is contrary to the decree. Strilky v. Levy, 33 Ill.App.2d 91.

The evidence presented by the parties in the instant case conflicts on every material contention concerning the transaction in question. The credibility of the witnesses is the decisive factor in the outcome of this case, and the master who heard and saw the witnesses was in the best position to evaluate their credibility. It is our conclusion that the evidence supports the masters report and the decree of the chancellor sustaining that report. In view of this, it is not necessary that we pass upon the alternative finding of the master that plaintiff’s claim is barred by State statute. The judgment is affirmed.

Judgment affirmed.

McGLOON and LEIGHTON, JJ., concur.


author: Mr. PRESIDING JUSTICE BURKE

text:
    Adolph L. Haas, Plaintiff and Counterdefendant-Appellee, v. Pick Galleries, Inc. et al., Defendants and Counterplaintiff-Appellants
    (No. 58347;
    First District (1st Division)
    June 11, 1973.

      Rehearing denied July 3, 1973.

      Howard W. Minn, of Chicago, for appellants.
    Adolph L. Haas, pro se.

   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

Defendants, Pick Galleries, Inc., and Harold R. Pick, appeal from a judgment entered for the plaintiff and against them on August 31, 1972, in the amount of $1,597.50, and dismissing the counterclaim filed by defendants. Defendants maintain that the trial court erred in refusing their motion to transfer the case from the Municipal Department, District 1, to the County Department, Law Division, of the Circuit Court of Cook County, since the amounts put in controversy by their counterclaim exceed the $15,000 “jurisdictional limit” of the Municipal Department, District 1.

Plaintiff’s complaint, filed March 1, 1971, in the Circuit Court of Cook County, Municipal Department, District 1, sought judgment in the amount of $4,443.00 and costs for legal services he allegedly performed on behalf of the defendants. On April 14, 1971, defendants filed — also in the Municipal Department, "District 1, of the Circuit Court of Cook County — an answer in the nature of a general denial and a four-count counterclaim which sought $15,000, $15,000, $50,000 and $100,000 respectively. The gist of the counterclaim was that the defendants had delivered various merchandise and performed appraisal work for plaintiff and that plaintiff had negligently performed professional work for the defendants. Judgment was entered on August 31, 1972, for $1,597.50 against defendants and a judgment of dismissal was entered on the counterclaim. On September 1, 1972, both defendants filed identical written motions to vacate on the ground that the “court erred in refusing defendants’ motion to have this case transferred to the Law Division for trial, since the rules of Court specifically state that the limits of jurisdiction of this Division of this Court is $15,000 and the ad damnum of the Counter Complaint was $100,000.” It was stipulated that the motion to transfer was made orally on the date the case was heard, just before testimony was taken. The trial court overruled it “because it did not come timely.”

Defendants contend that the judgments entered below are void because the trial court was without jurisdiction because the amounts sought in the counterclaim exceeded the “jurisdictional limit” of the Municipal Department. Plaintiff contends the Circuit Court of Cook County has jurisdiction of “all justiciable matters” conferred by Article VI, paragraph 9 of the 1970 Constitution, that a judgment entered by a branch or division of the Circuit Court is not void for want of jurisdiction and that the defendants waived the alleged error by their failure to make a timely objection. The Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 8(2)) provides that objections of improper venue are waived by a defendant unless a motion to transfer to a proper venue is made on or before the date “upon which he is required to appear or within any further time that may be granted him to answer or move with respect to the complaint.” In the case at bar, defendants’ oral motion did not come prior to their appearance on April 14, 1971, and came, in fact, more than 16 months after the appearance, answer and four-count counterclaim were filed. The record does not indicate that defendants sought “any further time” within which “to answer or move with respect to the complaint.” Rather, the record indicates that the motion to transfer, made orally on the day of trial immediately prior to the taking of testimony, was denied precisely because “it did not come timely.”

Nevertheless, defendants argue that the error is one of jurisdiction and that the jurisdictional question can be raised at any time. (Ras v. Allan Anthony Electric Corp., 55 Ill.App.2d 176, 177, 204 N.E.2d 797.) Defendants also rely on General Order Number 1 — 3.(c) of the Circuit Court of Cook County, entitled “Transfer of Actions Improperly Filed” which provides: “Whenever it appears, by suggestion of the parties or otherwise, that the action was filed or is pending in the wrong department, division or district of the Circuit Court of Cook County, the court on its own motion or on motion of any party shall transfer the action to the proper department, division, or district.” However, the same rule also provides (1 — 3.b): “No action shall be dismissed and no judgment order or decree shall be vacated, set aside or invalidated because the action was filed, tried or adjudicated in the wrong department, division or district.” The general orders of the Circuit Court of Cook County specify its organization, operation and administration and not its jurisdiction which is conferred by Article VI, paragraph 9, of the 1970 Constitution, which provides, in part: “Circuit courts shall have original jurisdiction of all justiciable matters except when the Supreme Court has original and exclusive jurisdiction relating to the redistricting of the General Assembly and to the ability of the Governor to serve or resume office.” Consequently, the statement in Circuit Court General Order No. 1 — 2.2(b) that the Municipal Department of tire Circuit Court of Cook County, “hears civil actions and proceedings at law for money not in excess of $15,000” is not, as defendants contend, a “jurisdictional limit.” Unlike the.previous inferior courts which had only limited jurisdiction, the present Circuit Court of Cook County has original and unlimited jurisdiction. (In re Estate of Marcucci, 5 Ill.App.3d 484, 494, 285 N.E.2d 141, 147.) “Jurisdiction,” the court there stated, “is vested in a court, not in a judge.” A similar logic should be applied to the divisions and departments of the Circuit Court of Cook County. The actions of the trial court concerning the assignment or transfer of actions under General Order Number 1 — 3. are not jurisdictional and, within broad limits, the trial judge should be allowed the discretion contemplated in General Order Number 1 — 3. No showing has been made of abuse of that discretion in this instance.

Accordingly, the judgment of the Circuit Court of Cook County is affirmed.'

Judgment affirmed.

GOLDBERG and EGAN, JJ., concur.


author: Mr. JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leroy Carroll, Defendant-Appellant.
    (No. 55246;
    First District (2nd Division)
    June 5, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Robert M. Gray and James N. Gramenos, 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 LEIGHTON

delivered the opinion of the court:

Defendant was charged with robbery. He was tried by a jury, found guilty; and after post-trial motions were overruled, he was sentenced to serve five to fifteen years. In this appeal, based on the following facts, he argues six contentions as grounds for reversal of his conviction.

At about 2:00 A.M. on the morning of July 30, 1969, Johnnie Ruth Reed was returning to her apartment on the 9th floor of 4500 South State Street in Chicago. When she entered the elevator of the building, a man got in with her. Johnnie Reed had observed the man for two or three minutes. He was wearing brown pants, a yellow shirt and carried a brown jacket over his arm. As the elevator started, the man put his hand over Johnnie Reed’s mouth, forced her hands behind her back and made a remark suggesting he was going to sexually molest her. A struggle ensued as they rose past the floors. On the 16th, the man pulled Johnnie Reed from the elevator. She continued struggling, bit the man’s hand and began to scream. The man took her purse and ran. As he did, he dropped the jacket he was carrying. People on the same floor came out of their apartments. Two young men, Ricardo Douglas and Rruce Peoples, chased the man down the stairs. At either the 13th or 14th floor of the building, the young men found Johnnie Reed’s purse. They returned it to her and resumed their pursuit of the man, running, down the stairs and out into State Street.

Sergeant Edmund Lord responded to the alarm of a robbery in progress at 4500 South State Street. When he drove up, he met two young men running out of the building. He stopped them. They told Sergeant Lord about the man they were chasing, a man who was then on the east side of the street. Lord arrested the man. It was the defendant, •Leroy Carroll. Fifteen minutes after the attack on Johnnie Reed, defendant was brought to the 16th floor of the building where she identified him as her attacker.

Among the policemen who responded to the call of a robbery in progress were Ronald Tillrock and his partner Nicholas Pagliaro. They went to the 16th floor of 4500 South State Street and there, near the elevator, found a jacket. In one pocket, among other personal items, was a ring containing three keys, one larger than the other two. A short time later, defendant was taken to a police station where he was charged with the robbery of Johnnie Ruth Reed.

On August 26, 1969, while defendant was in custody, policemen Till-rock and Pagliaro obtained the ring of keys from the inventory section of the Chicago police department. The officers had learned that defendant lived at 4438 South Wells Street. They went to that address. There they found the name “Carroll” or “Collins” on a door that led to the second floor. Tillrock inserted the large key into the door and it turned the tumbler. He then rang the bell which was answered by a man and a woman. The woman was defendant’s sister, Marie Collins who, as a defense witness, testified that defendant lived in her apartment; that he had the large key and that it looked like the one to her front door.

Prior to trial, defendant made four motions: (1) for an order that would have precluded the State from impeaching his testimony with evidence of a prior conviction for rape; (2) for an order suppressing the State’s identification evidence on the ground that the circumstances under which he was identified by Johnnie Ruth Reed were unnecessarily suggestive and conducive to an irreparably mistaken identification; (3) for an order suppressing the State’s evidence concerning the key and the fact that it turned the tumbler in the lock to the apartment in which he lived; (4) for an order directing the official court reporter to furnish him with a free transcript of the hearing of his motion to suppress evidence. The motions were denied. The case was then presented to the jury and both sides rested. During defendant’s summation, he moved for a mistrial on the ground that certain remarks of an assistant State’s Attorney prejudiced his rights to a fair trial. The motion was denied. Thereafter, the jury was instructed; and following its deliberation, it returned a verdict that found defendant guilty of robbery.

First, defendant contends that the trial court committed error when it denied his motion to suppress evidence which would have proved that on a prior occasion he had been convicted of rape. Defendant argues that the trial court erred when it failed to recognize it had discretion to suppress evidence of the conviction, one which the State was going to use to impeach him in the event he testified in his own defense. In the alternative, defendant contends that the trial court abused its discretion in failing to suppress evidence of the conviction. Defendant argues that because he feared impeachment, denial of his motion enabled the prosecution to intimidate him into not testifying in his defense. To support his contention, defendant relies on People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695, a January 1971 decision in which our Supreme Court held that evidence of a prior conviction should not be permitted for purposes of impeachment if a period of more than 10 years has elapsed since the conviction or since release of the witness from confinement, whichever is the later date.

Montgomery, however, applies only to cases tried after that decision. (People v. Lowery, 1 Ill.App.3d 851, 275 N.E.2d 185; People v. Hyde, 1 Ill.App.3d 831, 275 N.E.2d 239.) This case was tried before Montgomery. It follows that the holding of that case is not applicable to this one. (People v. Beck, 133 Ill.App.2d 356, 273 N.E.2d 169.) Therefore, the trial court did not commit error when it denied the motion to suppress evidence of defendant’s prior rape conviction. People v. Rossi, 52 Ill.2d 13, 284 N.E.2d 275; compare People v. Jackson, 132 Ill.App.2d 464, 270 N.E.2d 498.

Second, defendant contends that the trial court committed error when it denied his motion to suppress the State’s identification evidence. He argues that his two identification confrontations with Johnnie Reed: one, while he was handcuffed and standing between two uniformed policemen; the other, while he was handcuffed and seated alone on a bench in a police station, were so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. Defendant maintains that these confrontations affected Johnnie Reeds in-court identification testimony; therefore, his motion to suppress the State’s identification evidence should have been sustained. In support of this contention, defendant relies on Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967, and a number of Illinois decisions.

We think it is obvious that defendant was subjected to identification confrontations which were unnecessarily suggestive and conducive to irreparable mistaken identification. The exhibition of a crime suspect, in handcuffs, to a crime victim injects an undue degree of suggestability into an identification confrontation. (People v. Lee, 44 Ill.2d 161, 254 N.E.2d 469; People v. Wright, 126 Ill.App.2d 91, 261 N.E.2d 445.) When a handcuffed crime suspect, standing between two uniformed policemen, is exhibited to a crime victim for identification, few human beings are capable of resisting the suggestion that what they are being told is: “This is the man!” In the case before us, the first suggestive confrontation was compounded when defendant was viewed by Johnnie Reed in a police station where he was still handcuffed and sitting alone on a bench. Therefore, unless the State, by clear and convincing evidence, has shown that Johnnie Reed’s in-court identification of defendant had a source independent of the confrontations, her identification testimony should have been suppressed. (People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152; Clemons v. United States (D.C. Cir. 1968); 408 F.2d 1230; State v. Thompson (1971), 59 N.J. 396, 283 A.2d 513.) It is settled that even though an identification confrontation is improper or has been suppressed, an in-court identification is nevertheless admissible if it is based on a prior independent origin, one arising from an earlier uninfluenced observation of the suspect. People v. Spencer, 7 Ill.App.3d 1017, 288 N.E.2d 612; People v. Hill, 3 Ill.App.3d 694, 279 N.E.2d 497 (abstr.); People v. Wright, 126 Ill.App.2d 91, 261 N.E.2d 445.

In this case, clear and convincing evidence shows that at about 2:00 A.M. on July 30, 1969 Johnnie Reed was followed into her apartment building by a man. She observed him for about two or three minutes. She was in the elevator with him from the 1st to the 16th floor. When he ran past her after taking her purse she had another opportunity to see him. Without hesitation, she testified that the man was wearing brown pants, yellow shirt and was carrying a brown jacket over his arm. Significantly, in support of his motion to suppress evidence, defendant testified that he was wearing “* # * brown pants with yellow pinstripe and beige shirt, short sleeve shirt.” True, under cross-examination, Johnnie Reed admitted that she could not recall if the man had a mustache, nor could she remember his particular hair style or his weight. She testified, and under strenuous cross-examination persisted, that she remembered his clothing and his face. We conclude that her in-court identification testimony was of independent origin, one arising from an uninfluenced observation of the defendant. (See People v. McMath, 104 Ill.App.2d 302, 244 N.E.2d 330, aff'd, 45 Ill.2d 33, 256 N.E.2d 835.) Therefore, the trial court did not commit error when it denied defendant’s motion to suppress the State’s identification evidence.

Third, defendant contends that the trial court committed error when it denied his motion to suppress evidence. Defendant argues that insertion by Officer Tillrock of the key into the lock of the door to the second-floor apartment at 4438 South Wells Street was either an unconstitutional search and seizure or the obtaining of evidence that was the fruit of illegal police activity. Defendant claims that Tillrock’s conduct was an illegal search of a dwelling place without a warrant, one that violated defendant’s rights under the fourth amendment to the United States constitution and section 6 of article II, constitution of Illinois. Therefore, defendant insists, Officer Tillrock’s testimony concerning the key and its turning of the tumbler should have been kept from the jury.

A “search” is a probing or exploration for something that is concealed or hidden from the searcher. A “seizure” is a forcible or secretive dispossession of something against the will of the possessor-owner, both terms connoting hostility between the searcher and the person whose property or possessions are being searched or sought. (United States v. Haden (7th Cir. 1968), 397 F.2d 460, cert. denied, 396 U.S. 1027, 24 L.Ed.2d 523, 90 S.Ct. 574; People v. Holt, 7 Ill.App.3d 646, 288 N.E.2d 245; 79 C.J.S. Searches and Seizures § 1). A search is an invasion, a quest with some sort of force, either actual or constructive. (People v. Marvin, 358 Ill. 426, 428, 193 N.E. 202; People v. Woods, 26 Ill.2d 557, 188 N.E.2d 1; City of Decatur v. Kushmer, 43 Ill.2d 334, 253 N.E.2d 425.) In contrast, the obtaining of information or evidence by officers who are where they have a right to be, with a legitimate reason, is not a search. See United States v. Graham (6th Cir. 1968), 391 F.2d 439; United States v. Johnson (5th Cir. 1969), 413 F.2d 1396; United States v. Gunn (5th Cir. 1970), 428 F.2d 1057; United States v. Williams (5th Cir. 1970), 434 F.2d 681.

The record discloses that the key in officer Tillrock’s possession was found in a jacket at the scene of the crime. Therefore, Tillrock’s possession of the key was lawful. The door in question was accessible from a common hallway on the ground floor of the building. A police officer who is in the common hallway of a building is not in a constitutionally protected area. (See City of Evanston v. Hopkins, 330 Ill.App. 337, 71 N.E.2d 209 (abstr.); People v. Varnadoe, 54 Ill.App.2d 443, 203 N.E.2d 781.) All that Tillrock did was insert the key into the lock and turn the tumbler. Then, without any intrusion or trespassory conduct, he rang the bell that was answered by two persons, one of them defendant’s sister. This was not a search. (See Muegel v. State (Ind. 1971), 272 N.E.2d 617; compare State v. Turner (1966), 101 Ariz. 85, 416 P.2d 409.) Nor can it be said that the evidence obtained was the “fruit” of illegal activity. Illegal activity, in this context, means activity that violates some constitutional right personal to a defendant. (State v. Delaire (1969), 127 Vt. 462, 252 A.2d 531.) No constitutional right, personal to the defendant, was violated when Officer Tillrock merely inserted the key and learned that the tumbler could be turned by it.

It would have been a different case had the key been obtained in violation of some constitutional right of the defendant. (See People v. McDonald, 51 Ill.App.2d 316, 200 N.E.2d 369.) Certainly, it would have been a different case if, while defendant was in custody, the two officers, using the key, had entered his apartment and searched it. (See People v. Grod, 385 Ill. 584, 53 N.E.2d 591; People v. Kalpak, 10 Ill.2d 411, 140 N.E.2d 726.) Nothing like this was done here. Of course, the mere fact that a pohce officer has lawful possession of a citizen’s key does not confer an unlimited license to use it. However, the legitimate interests of proper crime investigation aHow what was done in this case. Therefore, the trial court did not commit error when it denied defendant’s motion to suppress evidence.

Fourth, defendant contends that he was deprived of equal protection of the laws when the trial court denied his motion for a free transcript of the testimony that Johnnie Ruth Reed and Sergeant Edmund Lord gave at the hearing of the motion to suppress evidence. Without showing in what important respect this is true, defendant argues that the first testimony of these two witnesses varied from the second which they gave before the jury. He points to the fact that when he requested the free transcript, he proved his indigency. Therefore, he insists it was error for the trial court to deny his motion for the transcript.

Our law recognizes that in criminal proceedings differences in access to instruments needed to vindicate legal rights, when based on the financial situation of a defendant, are repugnant to the constitution of the United States. (Roberts v. LaVallee (1967), 389 U.S. 40 19 L.Ed.2d 41, 88 S.Ct. 194.) Accordingly, the highest court of this State has held that denial to a defendant of a free transcript of the preliminary hearing on his case, one at which the complainant testified, deprives him of equal protection of the laws. (People v. Moore, 51 Ill.2d 79, 281 N.E.2d 294.) In some jurisdictions, the right to a free transcript extends to the record of pretrial suppression of evidence. See People v. Ballott (1967), 20 N.Y. 2d 600, 233 N.E.2d 103; People v. Montgomery (1966), 18 N.Y. 2d 993, 224 N.E.2d 730.

However, not every refusal of a free transcript denies equal protection of the laws to an indigent defendant. (United States ex rel. Cadogan v. LaVallee (2d Cir. 1970), 428 F.2d 165, 167.) A defendant who requests but is denied a free transcript has the obligation of showing that he was prejudiced by that denial. (People v. Gill, 7 Ill.App.3d 24, 286 N.E.2d 516; compare United States ex rel. Caster v. Mancusi (2d Cir. 1969), 414 F.2d 743.) An indigent defendant does not have a constitutional right to any transcript he requests; the transcript must be an instrument he needs to vindicate a legal right. United States v. Carella (2d Cir. 1969), 411 F.2d 729.

Our examination of the record convinces us that the free transcript defendant requested was not needed by him to vindicate any legal right. The two witnesses about whom he was concerned had not yet testified; When defendant requested the transcript, he did not need it. In fact, defendant does not now point to any material discrepancy in the testimony of the two witnesses. Therefore, defendant was not deprived of equal protection of the laws when the trial court denied his request for the free transcript. People v. Lewis, 92 Ill.App.2d 463, 236 N.E.2d 417.

Fifth, defendant contends that he was denied a fair trial by the conduct of an attorney for the prosecution, To support this contention, defendant points to six incidents which he claims show that the prosecution abandoned all concepts of fundamental fairness and sought to secure his conviction at any cost. We have examined these incidents; and although certain remarks of the attorney in question were improper and unprofessional, we conclude that the incidents did not interfere with defendant’s right to a fair trial. (See United States v. Holmes (7 Cir. 1971), 452 F.2d 249; compare People v. Eubank, 46 Ill.2d 383, 263 N.E.2d 869, cert. denied, 402 U.S. 972, 29 L.Ed.2d 136, 91 S.Ct. 1657; People v. Porterfield, 131 Ill.App.2d 167, 268 N.E.2d 537.) It is a general rule that remarks, argument and conduct of counsel, even though improper, are not grounds for reversal of a conviction unless they cause substantial prejudice to the accused. (People v. Nilsson, 44 Ill.2d 244, 255 N.E.2d 432, cert. denied, 398 U.S. 954, 26 L.Ed.2d 296, 90 S.Ct. 1881; People v. Phillips, 126 Ill.App.2d 179, 261 N.E.2d 469.) Defendant’s objections to the prosecutor’s remarks were promptly sustained by the trial court. Moreover, the trial judge, firmly and with fairness, gave the jury appropriate and effective admonitions. Under these circumstances, it is our judgment that the incidents did not prejudicially influence the jury. (People v. Hines, 30 Ill.2d 152, 157, 195 N.E.2d 712; People v. Bravos, 114 Ill.App.2d 298, 252 N.E.2d 776.) Therefore, defendant was not denied a fair trial by the conduct of one of the attorneys for the prosecution.

Sixth, defendant contends that his conviction was based on an identification so doubtful, vague and uncertain that there is reasonable doubt he is the man who attacked and robbed Johnnie Ruth Reed during the early morning hours of July 30, 1969. Defendant argues that Johnnie Reed was iU, a condition that affected her ability to identify her attacker. Moreover, the first identification confrontation between them occurred in an atmosphere of chaotic commotion and confusion. For example, defendant points to Johnnie Reed’s admission that for a time she was not able to see her attacker because he was behind her when he began the assault. Defendant also points out that Johnnie Reed admitted she did not remember whether her attacker had a mustache, what was the style of his hair or whether he was wearing a ring. To buttress his argument, defendant cites three decisions of this court: People v. Kincy, 72 Ill.App.2d 419, 219 N.E.2d 662; 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.

In our judgment, those decisions do not support defendant’s argument. Kincy, Marshall and Martin, unlike the one before us, were cases in which the State had only one identification witness. The record of this case shows that Ricardo Douglas, one of the two young men who chased Johnnie Reed’s attacker out of 4500 South State Street, positively and without hesitation identified defendant as that man. Douglas also testified that between two and ten minutes before they heard Johnnie Reed scream, he and his companion, Bruce Peoples, saw defendant on the 15th floor of the building. Defendant’s characterization of Johnnie Reed’s identification evidence overlooks the details of her testimony: she looked back twice and saw the man foHowing her into the building; she observed the man for two or three minutes at the elevator; on the 16th floor, she had another opportunity to see and observe him when he ran past her in the attempt to escape; she gave a description of the man’s clothing, a description that matched defendant’s testimony of what he was wearing the morning in question,

Johnnie Reed was positive in her in-court identification of the defendant and in her insistence that she remembered his clothing and his- face. Where identification testimony of a crime victim is positive, precise accuracy in describing facial characteristics of a defendant is unnecessary. (People v. Hill, 3 Ill.App.3d 694, 279 N.E.2d 497.) SMght discrepancies in the testimony of an eye-witness do not destroy his credibHity. (People v. Willis, 126 Ill.App.2d 348, 354, 261 N.E.2d 723.) And the failure of an eye-witness to notice the presence or absence of a mustache, or other physical features or characteristics of a crime suspect, is a minor discrepancy. People v. Luckey, 126 Ill.App.2d 15, 28, 261 N.E.2d 449; People v. Howard, 112 Ill.App.2d 167, 251 N.E.2d 369; People v. Ford, 89 Ill.App.2d 69, 233 N.E.2d 51.

Defendant’s in-court identification by Johnnie Reed must be considered in the light of Ricardo Douglas’s identification testimony and that of Officer Tillrock concerning the key that was found at the scene of the crime, the key which defendant’s sister testified belonged to him. When this is done, the conclusion is inescapeable that defendant’s conviction was based on a positive and certain identification, one which proved that he was the man who attacked and robbed Johnnie Ruth Reed in the early morning hours of July 30, 1969. The judgment is affirmed.

Affirmed.

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


author: Mr. JUSTICE GOLDBERG

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Ralph R. Levin, Defendant-Appellee.
    (Nos. 57496, 57497 cons.;
    First District (1st Division)
    June 11, 1973.

      Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel,) for the People.
    Jack G. Stein, of Chicago, for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

The People of the State of Illinois appeal from an order granting a motion of defendant to suppress evidence. Supreme Court Rule 604(a)(1), Ill. Rev. Stat. 1971, ch. 110A, par. 604(a)(1).

The record shows that defendant was charged with a gambling offense in that he possessed a book, instrument or apparatus for the purpose of recording and registering bets and wagers. (Ill. Rev. Stat. 1971, ch. 38, par. 28 — 1(a) (5).) Defendant was taken into custody and placed under arrest on September 22, 1971. Certain property was taken from his possession by the police at that time. The arrest was made pursuant to a verified complaint for search warrant by the arresting officer and a warrant for seizure of records of bets, etc., duly issued pursuant thereto.

Attorneys for the State and the defendant approached the bench. The attorney for defendant, responding affirmatively to a question by the trial court, advised the court that he was making a motion to suppress evidence and to quash. Both counsel then gave legal arguments to the court relative to the sufficiency of the verified complaint and the search warrant. The court ruled that these documents were legally insufficient and sustained the motion to suppress. The record shows the following:

“THE COURT: Well, motion to suppress, sustained.

MR. CITERA: S.O.L.?

[State’s Attorney]

THE COURT: S.O.L.

MR. CITERA: Judge, uh, the State at this time, is ready even though the warrant’s quashed. We feel there is probable cause without the warrant.

THE COURT: All right.

MR. STEIN: Certainly make a motion to suppress.

[Defense Attorney]

THE COURT: Let’s go.”

Counsel for defendant then called the police officer to the stand and examined him regarding the circumstances of the arrest. There was cross-examination by the State’s Attorney. The court then ruled, “No probable cause.” The property taken from defendant was returned. The common law record shows that the court sustained defendant’s motion to suppress and the case was stricken from the docket with leave to reinstate.

In this court, the State contends only that the complaint and search warrant were sufficient upon their face so that the court erred in quashing the warrant and suppressing the evidence. Defendant contends that when the prosecutor elected to proceed with a determination of the existence of probable cause upon the arrest alone, without the warrant, the State thus waived its right to appeal. He urges that since the trial court sustained defendant’s motion to suppress, regardless of the warrant, the evidence may not be admitted and that validity of the warrant, the only point briefed and argued by the State, is “moot”. Defendant thus contends that the appeal should be dismissed under Supreme Court Rule 341(e)(7). (Ill. Rev. Stat. 1971, ch. 110A, par. 341(e)(7).) The defendant also urges upon us the insufficiency of the search warrant and the complaint.

Consideration of defendant’s first point requires a restatement of certain fundamental principles. The Illinois Code of Criminal Procedure is the basis for pretrial motions to suppress evidence. The applicable section of this statute gives the defendant the right to move the court to suppress evidence obtained by an unlawful search and seizure. The statute provides for suppression of property unlawfully seized where the “* * * search and seizure without a warrant was illegal # * (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 12(a)(1)); or alternatively, “The search and seizure with a warrant was illegal because the warrant is insufficient on its face * * (par. 114 — 12(a)(2).) This record demonstrates that defendant proceeded first upon the latter ground; namely, insufficiency of the warrant.

In this regard, the arguments of counsel were properly limited to the legal sufficiency of the supporting affidavit. The matter of probable cause for the issuance of the search warrant having been established by the magistrate who granted it, the only question then open for argument before the trial court was the legal sufficiency of the warrant and the supporting affidavit as such. (See People v. Stansberry, 47 Ill.2d 541, 268 N.E.2d 431.) In a situation such as this, and in this type of proceeding, the defendant could not dispute matters alleged under oath which formed a basis for issuance of the search warrant. He could only question the legal sufficiency thereof. People v. Bak, 45 Ill.2d 140, 144, 258 N.E.2d 341.

The court ruled upon this motion and held that the complaint for search warrant was legally insufficient and the warrant invalid. However, the State then elected to proceed as though the warrant had never been issued. Defects in the search warrant would be immaterial if the search could be “otherwise justified.” (See People v. Stone, 47 Ill.2d 188, 190, 265 N.E.2d 883, quoting from People v. Wright, 41 Ill.2d 170, 173, 242 N.E.2d 180.) Up to this point, however, defendant had exhausted only one of the statutory alternatives open to him for suppression of the evidence; namely, legal sufficiency of the complaint and warrant. Instead of proceeding to trial on the merits, defendant then moved the court to suppress the evidence upon the other statutory ground that the search and seizure of his property, entirely aside from the warrant, was illegal. This was patently and obviously the only ground upon which defendant was proceeding. Defendant called the police officer as his witness and testimony was heard regarding the circumstances of the arrest. The point at issue was existence of reasonable cause for the officer to believe that an offense had been committed and that the defendant had committed it. The trial court then granted the motion to suppress and the cause was stricken with leave to reinstate. There was never a trial upon the merits of- the criminal charges against defendant.

Based upon this record, defendant argues that the point raised by the State in this appeal on insufficiency of the warrant is “waived” and also “moot”. No authority is cited for this statement beyond the statute above referred to and Rule 341(e)(7) of the Supreme Court. We cannot find waiver of any kind by the State from this record. Actually, it was the defendant himself who elected to proceed with a motion to suppress the evidence seeking return of his property; first upon qne of the grounds authorized by the statute and then upon the other. When the motion to suppress was sustained upon the first ground, defendant did not then request return of his property. Instead, he himself chose to proceed with a motion to suppress upon the alternative ground granted in the statute. If the warrant was held invalid, the State could still justify the arrest of the defendant and seizure of his property on the ground of probable cause. (People v. Stone, 47 Ill.2d 188, 190, 265 N.E.2d 883.) We find no waiver of right to appeal by the State. Rule 604a(l) gives the State the right to appeal from an order suppressing evidence whether this order is predicated on either of the statutory alternatives. (Ill. Rev. Stat. 1971, ch. 110A, par. 604a(1).) The notice of appeal filed by the People encompasses both orders of the trial court which were rendered on the same day.

Under Rule 341(e)(7) of the Supreme Court (Ill. Rev. Stat. 1971, ch. 110A, par. 341(e)(7)), since the State has not argued the ruling of the trial court on the motion to suppress without the warrant, that point is waived. However, the ruling of the trial court on sufficiency of the warrant is properly before us for decision, That issue is dominant and governing here. If the warrant is actually sufficient, no issue of probable cause arises and the ruling of the trial court in this regard has neither materiality nor significance. In such case, the issue of probable cause without the warrant is “moot” in the sense in which the defendant uses the word. The basic issue of sufficiency of the warrant did not become “moot” in this sense.

Turning now to the merits of the ruling by the trial court that the verified complaint and search warrant were invalid, the sworn complaint for a search warrant stated:

“I, George Barzydlo, a police officer in the City of Chicago have received information from a reliable informant who I have known -for approximately 4 months who on several previous occasions has furnished me and other members of the gambling unit with information which has proven to be true exact and accurate. Acting on this information received from this informant resulted in four arrests in four separate cases, in all cases gambling paraphernalia was seized, results being two convictions and two cases still pending in court. On 17 September 1971, this informant met with me and told me that when he wanted to place a bet he would go to 1119 West Fulton street. To a place called Ralphs Bar and Grill and place the bet with a Male White by the name of Ralph who is the bartender.
On this date 20 September 1971 I personally went to 1119 W. Fulton st. with the informant and made a complete search of him and found him to be free of any gambling material. I then instructed him to go to 1119 West Fulton st. and place a bet. The informant went directly to 1119 West Fulton st. and remained inside approximately 10 minutes and then returned directly to me, at which time he showed me a receipt for a horse bet.”

The search warrant issued on the same day contains the following language:

“On this day George Barzydlo, Complainant, has subscribed and sworn to a complaint for a search warrant before me. Upon examination of the complaint, I find that it states facts sufficient to show probable cause.
I therefore command that you search a Male White by the name of ‘Ralph’ and the tavern and grill located at 1119 West Fulton st. first floor Chicago, Cook, Illinois and seize Records of bets, all instruments, implements and apparatus, kept, used, or provided to be used in illegal gambling To wit: scratch sheets, records of bets on horse races and United States Currency.”

A complaint for a search warrant may be based upon hearsay evidence given by an informer, but the complaint must set forth the underlying circumstances upon which the informer’s conclusions are based and must also set forth grounds evidencing his reliability. (Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509.) The affiant may also base his request upon the information received from fellow officers who are engaged in a common investigation. (United States v. Ventresca, 380 U.S. 102, 13 L.Ed.2d 684, 85 S.Ct. 741.) Morever, as stated in People v. McGrain, 38 Ill.2d 189, 230 N.E.2d 699, applications for search warrants must be tested and interpreted in a common sense and realistic fashion.

Perhaps the latest expression on this question by the Supreme Court of Illinois is People v. McNeil, 52 Ill.2d 409, 288 N.E.2d 464, affirming the decision by this court at 123 Ill.App.2d 285, 260 N.E.2d 82. Examination of both of these opinions leads us to the conclusion that the complaint and the warrant in the case at bar are legally sufficient.

In the instant case, the complaint for the search warrant set out: the place and person to be searched; the fact that the informer would go to defendant’s location when he wished to place a bet; the fact that the informer was searched by the officer and, after nothing in the nature of gambling paraphernalia was found on his person, the informer returned from the defendant’s location with a betting slip; and the fact that the informer was of past proven reliability as attested to by his past successful employment by the affiant and by his co-officers. The motion to quash the search warrant and suppress the evidence obtained pursuant thereto should have been denied.

Defendant raises questions in his brief concerning the meaning behind several of the averments contained in the complaint, such as, what was the nature and extent of the search which the officer made of the informer prior to the latter’s entry into defendant’s location; what makes a horse bet different from any other kind of bet; and the like. The affiant is not required to set out such minute details in the affidavit for the warrant. Such a requirement does not comport with the principle set out in People v. McGrain, 38 Ill.2d 189, 230 N.E.2d 699, that verified complaints for warrants be approached in a common sense, realistic fashion.

The reliability of the informer is also challenged by the defendant on the ground that the past successful employment of the informer by the affiant and also by his co-officers was stated as a basis for his reliability. The fact that the affiant relied in part upon the past successful employment of the informer by other members of the department of the Chicago Police Department does not render the warrant invalid. It would be incongruous to hold that a police officer may take the word of his fellow officers when engaged in a common investigation as grounds for a search warrant, and then to hold that he may not take their word as to the reliability of an informer successfully used by them in the past in related matters as a basis for the issuance of a warrant. (See People v. McGrain, 38 Ill.2d 189, 230 N.E.2d 699; United States v. Ventresca, 380 U.S. 102, 13 L.Ed.2d 684, 85 S.Ct. 741.) As noted above, complaints for search warrants must be tested and interpreted in a common sense, realistic fashion, and the acceptance by an affiant of a fellow officer’s word as to an informer’s past successful employment by the latter in related matters comes within that approach. See Dunn v. Municipal Court, Eureka Judicial District, 34 CaI.Rptr. 251,259-260,220 CaI.App.2d 858.

For these reasons the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings.

Judgment reversed, cause remanded with directions.

BURKE, P. J., and HALLETT, J., concur.


author: Mr. PRESIDING JUSTICE BURMAN

text:
    Vanda Kolar et al., Plaintiffs-Appellants, v. The City of Chicago, Defendant-Appellee.
    (No. 56271;
    First District (4th Division)
    June 13, 1973.
    Albert Koretsky, of Chicago, for appellants.
    Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Richard F. Friedman, Assistant Corporation Counsel, and Michael F. Cahill, Senior Law Student, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

On November 19, 1966, Vanda Kolar and Peter Kolar, plaintiffs-appellants, filed suit against the defendant-appellee, City of Chicago, to recover damages resulting from injuries sustained by Vanda Kolar on January 9, 1962, when she slipped and fell on a public cross-walk owned by the city.

In Count I, plaintiff Vanda Kolar sued to recover damages for personal injuries sustained by her. In Count II, plaintiff, Peter Kolar, her husband, sought to recover damages for loss of consortium and medical expenses as a result of the injuries sustained by his wife.

The City filed a motion for summary judgment on April 22, 1971, on the grounds that the plaintiffs failed to give notice of the injury to the City as required by statute and also failed to meet certain statute of limitations requirements. On May 20, 1971, after a hearing, the trial court entered an order dismissing both counts of the complaint, and the plaintiffs appeal.

We first consider the appeal of plaintiff, Vanda Kolar. Section 14 of the Limitations Act (Ill. Rev. Stat. 1961, ch. 83, par. 15) provides:

“Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversion, shall be commenced within two years next after the cause of action accrued.”

To avoid the effect of this statute, plaintiff contends that at the time of her injury, there existed a statutory prohibition contained in sections 1 — 4 — 2 and 1 — 4 — 3 of chapter 24 of the Illinois Revised Statutes (Ill. Rev. Stat. 1961, ch. 24, pars. 1 — 4 — 2 and 1 — 4 — 3), which prevented her from filing her lawsuit until shortly before the date on which she filed, and that therefore the statute of limitations should not have been applied.

Sections 1 — 4 — 2 and 1 — 4 — 3 of chapter 24 of the Illinois Revised Statutes of 1961 provide that upon failure to serve notice of an injury to the City within six months after the occurrence, the suit shall be dismissed and the action barred. This statute was held constitutional in 1907 in the case of Erford v. City of Peoria, 229 Ill. 546, 82 N.E. 374. Under this case, the six months’ notice requirement was a condition precedent to the cause of action.

On September 23, 1966, our Supreme Court in Lorton v. Brown County School District, 35 Ill.2d 362, 220 N.E.2d 161, reversed Erford and held the six months’ notice requirement invalid.

Plaintiff argues that she could not commence her action within the the two-year limitation period because she had failed to serve the City with notice of her injury within six months. She maintains that the notice requirement, which was subsequently invalidated in Lorton, in effect tolled the statute of limitations until September 23, 1966, the date of the Lorton decision. Plaintiff further contends that she was therefore within the statutory period when she filed her complaint on November 19, 1966, within two months after Lorton. Plaintiff relies on section 23 of chapter 83 of the Illinois Revised Statutes (Ill. Rev. Stat. 1961, ch. 83, par. 24) which provides:

“When the commencement of an action is stayed by injunction, order of a judge or court, or statutory prohibition, the time of the continuance of the injunction ,or prohibition is not part of the time limited for the commencement of the action.” (Emphasis added.)

The record shows that no notice of the injury was ever served upon the City and the suit was actually filed more than four years and ten months after the occurrence. Plaintiff makes no claim that infancy, insanity or any other cause prevented her from filing the notice. We are not persuaded that plaintiff can rely on her- own lack of diligence to toll the two-year statute of limitations.

A theory similar to plaintiffs’ was rejected in Peterson v. Montegna & Co., 11 Ill.App.2d 109, 136 N.E.2d 586. There, a complaint was filed in March, 1954, for injuries suffered in April, 1947, as a result of a collision of two automobiles. Defendant’s motion to dismiss on the ground that the statute of limitations barred the action for not being brought within two years was sustained and plaintiff appealed. Plaintiff maintained on appeal that he had no right to commence suit until 1952 when in Grasse v. Dealers Transport Co., 412 Ill. 179, 106 N.E.2d 124, the supreme court held the first paragraph of section 29 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1947, ch. 48, par. 166) unconstitutional. At the time of the occurrence both parties were under tire Workmen’s Compensation Act. The Appellate Court in Peterson held, as we do here, that the statutory prohibition did not toll the two-year statute of limitations.

In Peterson, the Court stated that “[a]n unconstitutional statute is null and void as of the date of its enactment. It is not a law. It confers no rights, imposes no duties and affords no protection. It is, in legal contemplation, as inoperative as though it had never been passed.” (11 Ill.App. 2d at 110-111, 136 N.E.2d at 587.) In the instant case, plaintiff could have sued within two years as did the plaintiff in Lorton■ and asserted that sections 1 — 4 — 2 and 1 — 4 — 3 of the Municipal Code were unconstitutional. Because she did not, she cannot now contend that the statute was tolled. We think the suggestion that unlike the case at bar, the statute in Peterson had not previously been held constitutional is a distinction without a difference.

We next consider whether the husband’s action for consequential damages was also barred by the two-year statute of limitations. Plaintiff, Peter Kolar, argues that his action, although based upon injury to his wife, is actually one for damage to property, and is therefore governed by the five-year limitation period of section 15 of the Limitations Act (Ill. Rev. Stat. 1961, ch. 83, par. 16), rather than section 14 relating to personal injuries.

There is no dispute that in Illinois both husband and wife may recover for loss of consortium in a separate and distinct cause of action. (Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881.) We do not agree, however, that the two-year statute of limitation concerning “an injury to the person” is not applicable to such an action. Although the husband’s action for loss of consortium against the City as a result of his wife’s injuries is a separate and distinct cause of action, it is dependent upon the liability of the City for his wife’s injuries being established. (Tjaden v. Moses, 94 Ill.App.2d 361, 365, 237 N.E.2d 562, 565.) The factual elements prerequisite to recovery by the wife are identical to those which must be proven by the husband. We must prove in order to sustain an action for loss of consortium, all of the elements of his. wife’s case, such as negligence on the part of the tortfeasor and his wife’s freedom from contributory negligence.

We are of the opinion that if the wife’s untimely claim for injuries is barred by the two-year statute, the husband is likewise without right to recover damages flowing therefrom.

The husband’s position that his consequential damages on account of his wife’s injury constitute a “property” right subject to the five-year statute of limitations finds support in a series of Illinois Appellate Court cases. In Waller v. City of Chicago, 11 Ill.App. 209, the five-year statute of limitations was applied in a parent’s suit for loss of a child’s services. (See also Bassett v. Bassett, 20 Ill.App. 543; Roth v. Lunden, 237 Ill.App. 456; and Doerr v. Villate, 74 Ill.App.2d 332, 220 N.E.2d 767.) In addition, see Seymour v. Union News Co., (7th Cir.), 217 F.2d 168.

The majority of other jurisdictions which have considered the question, however, have held that statutes limiting actions for “injury to the person” are broad enough to govern actions for consequential damages. See cases cited in 51 Am.Jur.2d, Limitation of Actions § 104 and 108 A.L.R. 525. We consider them to be well reasoned and they ought to be followed in Illinois. Moreover, there is language to the same effect in some Illinois cases. In Handtoffski v. Chicago Traction Co., 274 Ill. 282, the plaintiff, after the two-year statutory period for personal injuries had run, sued a streetcar company for breach of its implied promise to carry him safely. In holding that his action was defeated by the statute of limitations applicable to personal injury cases, our supreme court stated that the statutory period for personal injury cases must govern actions for damages “because of or on account of’ an injury, regardless of the form of the action. (274 Ill. at 286; see also Seymour v. Union News Co., 349 Ill.App. 197, 110 N.E.2d 475.) Since the husband’s action is precipitated by and is wholly dependent upon the wife’s personal injury action, the same policy considerations which require her case to be brought within two years equally require that his action be brought within the same period.

For the reasons stated, we believe the trial judge was correct in dismissing both counts of the complaint. The judgment of the Circuit Court will therefore be affirmed.

Affirmed.

ADESKO and DIERINGER, JJ., concur.

       The rationale of Lorton was that the six month requirement violated the constitional prohibition against special legislation since it applied to suits against some public entities but not others. As the court pointed out in that case, his situation was remedied in 1965 by the passage of the Local Governmental and Governmental Employees Tort Immunity Act, ch. 85, Ill. Rev. Stat. 1965, pars. 8 — 101, 8 — 102, and 8 — 103, which contained a six month notice requirement applicable to “any civil action * * * against a local public entity.” (Par. 8 — 102).


author: Mr. PRESIDING JUSTICE BURMAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alexandro Mata, Defendant-Appellant.
    (No. 57692;
    First District (4th Division)
    June 13, 1973.
   Opinion by

Mr. PRESIDING JUSTICE BURMAN.

James J. Doherty, Public Defender, of Chicago, (Harold A. Cowen, Assistant Public Defender, of counsel,) for appellant.

Bernard Carey, State’s Attorney, of Chicago, for the People.


author: Mr. JUSTICE ADESKO.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jesse P. Perez, Defendant-Appellant.
    (No. 58410;
    First District (4th Division)
    June 13, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Opinion by

Mr. JUSTICE ADESKO.


author: Mr. JUSTICE McNAMARA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Arnold Summers, Defendant-Appellant.
    (No. 55689;
    First District (3rd Division)
    June 14, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Lee T. Hettinger and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.

      Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Patricia C. Bobb, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Arnold Summers, was charged with attempt murder and aggravated battery. After a jury trial in the circuit court of Cook County, he was found guilty of attempt murder. The court placed him on five years probation, the first year to be served in Vandalia.

On appeal defendant contends that: (1) the trial court deprived him of a fair trial by refusing to grant him a continuance; (2) the trial court denied defendant his fundamental right to be present during his trial when the court ordered testimony to continue while defendant was absent; (3) the trial court denied defendant a fair trial by requesting that defense counsel conclude his closing argument; (4) the court erred in not requiring the State to furnish its preparation sheet to the defendant for impeachment purposes; (5) evidence of an unrelated prior criminal act was improperly admitted into evidence; (6) the motion to suppress evidence was erroneously denied; and (7) certain statements of defendant were improperly introduced into evidence.

On March 5, 1969, at approximately 2:30 P.M., defendant shot and wounded Donald Tiske. The shooting occurred on the sidewalk of Tiske’s residence, an apartment building located at 4909 Winthrop Avenue in the city of Chicago. Defendant lived in the adjoining apartment building. The incident took place after the two men had a discussion about a barking dog.

At trial Donald Tiske and his wife testified that Tiske picked up his wife at her job at 1:30 P.M. They stopped at a grocery store, and then Tiske drove her home. He intended to return to a tile setting job he was doing at a gas station. When the Tiskes entered their building, defendant was in the lobby ringing various apartment bells. Defendant began cursing, and asked whose dog was barking. Tiske replied that it might be his dog, but that there were several dogs in the building. Defendant then left the building. Mrs. Tiske went up to their apartment and Tiske left the building to return to work. Tiske testified that defendant was in front of the building when he emerged from the lobby. Tiske was walking to his parked automobile, when defendant, who was walking ahead, turned and shot him twice.

Mrs. Tiske testified that to her knowledge her husband had not been drinking on the day in question, and she would be able to tell when he had been drinking. She admitted that when he drank he became belligerent and unruly. Tiske testified that he did not remember whether he had anything to drink prior to the incident.

Defendant testified that he shot Tiske, but did it in self-defense. Defendant went over to the apartment building to complain to the manager about a barking dog. After defendant inquired of the Tiskes about the dog, Tiske yeUed that he would cut defendant’s head off, and at the same time displayed a knife. Defendant ran out of the building with Tiske foUowing him. Defendant told Tiske to get. back, and when Tiske kept advancing, defendant shot him. After the first shot, Tiske did not faff, but kept hopping from side to side. Defendant then shot him the second time.

Defendant testified that he happened to have the gun in his possession because he had tried to seU it. He stated that he did not believe the gun was loaded, but admitted that after the first shot he \yas aware that it was loaded. Defendant also testified that Tiske was drunk.

Defendant initially contends that the trial court committed reversible error in refusing to grant him a continuance. On Wednesday, October 14, 1970, the last day of trial, after defendant and the only other defense witness, testifying as to defendant’s good character, had completed their testimony, defendant requested a continuance of the trial until the foUowing week. The purpose of the continuance was to bring in an additional witness, Doctor A. Madlia. Defendant represented that he did not learn about the doctor until the previous Friday, October 9, 1970, when the State responded to a discovery motion. Defendant had filed the discovery motion on September 28, 1970. Defense counsel stated that he spoke to the doctor on the morning of October 14. The doctor stated that he was too busy aU that week, but he would be willing to come to court the foUowing week. Defendant unsuccessfully attempted on October 14 to serve a subpoena on the doctor. Defendant represented that Doctor Madlia was a resident in the emergency room of the hospital to which Tiske was taken after the shooting, and that he would testify that Tiske, when brought to the hospital, appeared to be intoxicated. The judge denied the motion for the continuance.

Motions for a continuance are addressed to the discretion of the trial court and shaU be considered in the light of the diligence shown on the part of the moving party. (Ill. Rev. Stat. 1969, ch. 38, par. 114 — 4 (e); People v. Clark, 9 Ill.2d 46, 137 N.E.2d 54.) A reviewing court wiU not interfere with the trial court’s denial of defendant’s motion for continuance unless such court has abused its discretion. People v. Kurtz, 69 Ill.App.2d 282, 216 N.E.2d 524.

Under the facts and circumstances of the present case we do not believe that the trial court abused its discretion in denying defendant’s motion for a continuance. An examination of the record reveals that defendant was arraigned on June 5, 1969, and triál commenced with the selection of the jury on October 9, 1970. Between arraignment and trial, the case was continued nine times on motion of defendant, and three times by agreement of the parties. Defendant asserts that he did not learn about Doctor Madlia until the State filed answers to his discovery motion on October 9, 1970. However, he did not request discovery until September 28, 1970. And more importantly, defendant did not attempt to serve a subpoena on the proposed witness until October 14, when the trial was virtually completed. Under the circumstances a request to continue the case until the following week was unreasonable and the court did not abuse its discretion in denying the motion.

Defendant’s second contention is that he was deprived of his fundamental right to be present at his trial when the court ordered testimony to continue while defendant was absent.

Prior to recessing trial on October 13, the trial judge directed the jury to be present at 9:30 A.M, the following morning so that they could begin promptly at 9:30 A.M. He also cautioned defense counsel not to be late.

At 9:30 A.M. the following morning the defendant was not present. At 9:35 A.M. the judge stated that no one had heard from defendant and resumed the trial proceedings. The judge commented that defense counsel could make an objection if he wished. Defense counsel replied that for the record he was objecting. The State then called Officer Joseph Juhas, one of the arresting police officers. Officer Juhas corroborated the testimony of his partner Officer Don Jacobsen, who had testified on the previous day as to the circumstances of the arrest. Juhas had also testified on the previous day at the hearing on the motion to suppress evidence.

As Officer Juhas completed a brief direct examination, the prosecutor observed for the record that defendant had arrived in court. Without request for delay or any reference to defendant’s earlier absence, defense counsel conducted a cross-examination of Officer Juhas.

A defendant in a criminal case has a constitutional right to be personally present at all stages of his trial. (People v. Mallett, 30 Ill.2d 136, 195 N.E.2d 687.) However, in People v. Colon, 9 Ill.App.3d 989, 293 N.E.2d 468, this court held that where a defendant is at liberty on bail and voluntarily absents himself from his trial after it has begun, he waives the right to be present and the court can proceed without him. It should also be observed that in Colon the defendant was absent for the principal part of the trial.

We believe that a trial court should be loath to permit a trial to proceed in defendant’s absence. However we hold that in the instant case the trial court’s decision to proceed with tihe trial did not result in any prejudice to defendant. Defendant missed only a small portion of the officers testimony. After defendant arrived, defense counsel conducted a vigorous and extensive cross-examination of the witness, and revealed no need to confer with defendant. Moreover, the officer had testified to substantially the same facts on the previous day in defendant’s presence during the hearing on the motion to suppress evidence. The trial court did not commit reversible error in allowing the trial to proceed in defendant’s absence.

Citing People v. McMullen, 300 Ill. 383, 133 N.E. 328, defendant next argues that the trial court committed reversible error in restricting defense counsel’s closing argument.

During defense counsel’s closing argument, the prosecutor interposed an objection to a statement made by defense counsel. At that juncture the trial judge commented that defense counsel was running way over the time limit for argument. When counsel replied that he had not agreed to a time limit, the judge remarked that he had set one. Defense counsel stated that he wounld sum up in two minutes, and concluded his argument within a few minutes.

In McMullen the defendant was charged with armed robbery. The Supreme Court held that given the serious nature of the charge and the length of the trial, the imposition by the trial court of a thirty-five minute time limit for closing argument by defense counsel was unreasonable, and the court reversed the conviction.

In the present case, the record is silent as to any time limit for argument having been set by the court. In any event, the record clearly reveals that defendant was not prejudiced by the action of the court. The trial was brief, and the issues were not complex. The taking' of testimony began on October 13 and concluded the following day. Defendant admitted the shooting, but maintained that he did it in self-defense. To resolve that principal issue, the jury had to determine defendant’s credibility as compared to that of the Tiskes. Defense counsel presented a closing argument which was lengthy, thorough and complete. The record indicates that he was able to cover in detail every issue and all of the testimony adduced at trial, often more than once. Defendant was not prejudiced by the court’s suggestion that the argument be concluded shortly.

Defendant’s fourth contention is that the trial court erred in not requiring the State to furnish its preparation sheet to the defendant for impeachment purposes. A preparation sheet, or “prep” sheet, is a résumé of a witness’s testimony before the grand jury. It is given by the witness after testimony before the grand jury to a typist outside the grand jury room and, according to the instant prosecutor, consists of the “highlights of the witness’s testimony before the grand jury.”

Prior to Donald Tiske’s cross-examination, the prosecutor, outside the presence of the jury, stated that he was tendering defendant his whole file, including the grand jury minutes and his prep sheet. He stated, however, that the prep sheet was attached to his copy of the indictment, and that he was afraid that defense counsel would keep it throughout the trial. After an extended discussion, the trial court ruled that defense counsel could read the contents of the preparation sheet and then return it to the prosecutor, ruling that the document was not substantially verbatim.

The State is required to furnish on demand to the defendant for impeachment purposes specific statements in its possession made by á State’s witness which have been established to exist and which are in the witness’s own words or substantially verbatim. (People v. Neiman, 30 Ill.2d 393, 197 N.E.2d 8.) And in an appropriate case, a prosecution preparatory sheet may be such a statement. People v. Robinson, 46 Ill.2d 229, 263 N.E.2d 57.

We consider it unnecessary to reach the issue of whether the instant preparation sheet qualified as a statement to be furnished to defendant for impeachment purposes. Despite the trial court’s ruling that defense counsel return the prep sheet to the prosecutor, a study of the record shows that defense counsel examined both Donald Tiske and Officer Jacobsen concerning their interviews with the typist after their grand jury testimony. It is evident that defendant was not prejudiced by the ruling of the court.

Defendant’s fifth contention that evidence of unrelated prior criminal acts was improperly admitted into evidence is without merit. Without objection, the prosecutor elicited testimony from a police officer that the serial numbers of the weapon in question had been removed, and from defendant that he had not registered the gun.

A trial court is not compelled to exclude improper evidence when the defendant makes no objection to it or does not move to exclude it. (People v. Henry, 3 Ill.2d 609, 122 N.E.2d 159.) In the present case, defendant did not object to the introduction of the evidence, and cannot now complain. In any event, the testimony complained of had no appreciable significance and, even if improperly admitted, constituted harmless error.

Defendant’s sixth contention is that the trial court erroneously denied his motion to suppress the evidence. Prior to trial defendant filed a motion to suppress the weapon. Officers Don Jacobsen and Joseph Juhas of the Chicago Police Department were the only witnesses at the hearing on the motion.

The officers testified that when they arrived at the scene of the shooting, they were informed by a citizen that the offender had run into the adjoining building where he lived on the fourth floor. The officers went up to the fourth floor, but knocked on the wrong door, and defendant came out of the apartment next door. Defendant entered the hallway and said to Jacobsen whom he knew previously: “Hi Jacobsen, I did it. I shot him.” After giving him his warnings, Officer Jacobsen asked defendant where the gun used in the shooting was. Defendant replied that it was in the apartment in his coat pocket, and Officer Juhas recovered it. The judge denied the motion to suppress the evidence.

Search by consent is a waiver of the constitutional protection against illegal searches. (People v. Harris, 34 Ill.2d 282, 215 N.E.2d 214.) In our opinion, the instant search was not coercive, but was made pursuant to the defendant’s voluntary consent. While the police were knocking on another tenant’s door, defendant walked into the hallway, greeted one of the officers by name and stated that he had done the shooting. Thereafter he informed the officers where the gun was. At trial, defendant testified that his actions were voluntary, and defense counsel stated that defendant had given the gun to the officers. We believe that the search was not such as is proscribed by the Constitution, and that the trial court properly denied the motion to suppress the evidence. Moreover, under the instant facts and circumstances, an erroneous ruling would not have been prejudicial to defendant.

Defendant’s final contention is that certain exculpatory statements made by him to the police were improperly introduced into evidence. He admits receiving Miranda warnings, but argues in this court that they were incomplete. Defendant did not object to the introduction of the testimony at trial, and has waived any objection to its introduction.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

SCHWARTZ and McGLOON, JJ., concur.