text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eugene Potts, Defendant-Appellant.
    Gen. No. 66-45.
    Fifth District.
    September 9, 1966.

      Arlie O. Boswell, Jr., and Hibben, Noyes & Bicknell, of Chicago, for appellant.
    Robert V. Wilson, State’s Attorney of Saline County, of Harrisburg, for appellee.
   GOLDENHERSH, P. J.

On November 30, 1956, defendant, Eugene Potts, was indicted in a two-count indictment returned by the Grand Jury in and for Saline County. Count I charged defendant with the crime of rape. Count II, based on the Habitual Criminal Act, (c 38, § 602, Ill Rev Stats 1955) charged that defendant had previously been indicted for, and convicted of, the crime of armed robbery. The circuit court appointed counsel, defendant was tried by jury, and found guilty on both counts. In its verdict convicting the defendant of rape, the jury fixed the sentence at 3 years. Under the second count, the circuit court imposed a sentence of life in the penitentiary.

Upon defendant’s petition filed pro se, the Supreme Court issued its writ of error and appointed counsel. Upon motion of The People, the Supreme Court, holding that the record presented no substantial constitutional question, transferred the cause to this court.

The complaining witness is the defendant’s sister. Her testimony is to the effect that the rape occurred on October 1,1956, that defendant had a gun, and that being in fear of his using the gun, she submitted to the act of intercourse. The occurrence was reported to the sheriff on October 3, 1956, and to the State’s Attorney on October 4,1956.

Defendant has briefed and argued several alleged errors, only two of which need be discussed since, in our opinion, they require the reversal of the judgment.

The selection of a jury was commenced on January 2, 1957, and continued until court was adjourned for the day. On January 3, prior to resuming the selection of the jury, the court stated that he understood that defendant had requested that he be given a “lie detector test,” that the State had agreed, and that the parties had stipulated that the result of the test be admitted in evidence. After some colloquy between the court and counsel, it was stipulated that if the operator who administered the test could make a written report, he would not be called to testify, and the report would be admitted in evidence.

On January 4, 1957, a report, identified as a People’s Exhibit, was offered, and “pursuant to stipulation entered into between the parties,” was admitted into evidence. The report recites that on January 3, 1957, in the Saline County Court House, defendant was given three polygraph tests. The portions of the report headed “Results” and “Conclusion” are as follows:

“RESULTS:
“The graphs in this subject’s tests show a heavy emotional disturbance throughout. The graphs in the subject’s tests further indicate deception to revelent (sic) questions and muscle movement which may or may not have been indulged in for the purpose of beating the test. The subject was requested to refrain from such acts at numerous intervals throughout his test. His graph recordings indicate that he was not too cooperative under test.”
“CONCLUSION:
“After the studying of the graph in the subject case the examiner is of the opinion that the subject lied under test. Namely, to having had sexual intercourse with his sister, Minnie, on or about October 1, 1956. Subject’s graphs further indicate that he forced her to have sexual intercourse with him.”

In People v. Zazzetta, 27 Ill2d 302, 189 NE2d 260, the Supreme Court reviewed many of the cases throughout the country involving the admissibility of the results of so-called lie-detector tests. A number of cases are discussed in an annotation in 23 ALR2d at page 1292. In State of New Mexico v. J. T. Trimble, 68 NM 406, 362 P2d 788, the Supreme Court of New Mexico held inadmissible the testimony of a witness who administered a polygraph test, even though the defendant had signed a waiver agreeing to be bound by the results of the test. In State of Arizona v. Valdez, 91 Ariz 274, 371 P2d 894, pursuant to a written stipulation entered into by the defendant, his counsel, and the county attorney, the defendant submitted to a polygraph (lie-detector) examination. The stipulation provided that the results of such examination would be admissible at the trial. The Supreme Court of Arizona, after an extensive review of the authorities said (371 P2d 894) at page 900: “Accordingly, and subject to the qualifications announced herein, we hold that polygraphs and expert testimony relating thereto are admissible upon stipulation in Arizona criminal cases. And in such cases the lie-detector evidence is admissible to corroborate other evidence of a defendant’s participation in the crime charged. If he takes the stand such evidence is admissible to corroborate or impeach his own testimony.

“The ‘qualifications’ are as follows:

“ (1) That the county attorney, defendant and his counsel all sign a written stipulation providing for defendant’s submission to the test and for the subsequent admission at trial of the graphs and the examiner’s opinion thereon on behalf of either defendant or the state.
“(2) That notwithstanding the stipulation the admissibility of the test results is subject to the discretion of the trial judge, i. e. if the trial judge is not convinced that the examiner is qualified or that the test was conducted under proper conditions he may refuse to accept such evidence.
“(3) That if the graphs and examiner’s opinion are offered in evidence the opposing party shall have the right to cross-examine the examiner respecting:
“a. the examiner’s qualifications and training;
“b. the conditions under which the test was administered;
“c. the limitations of and possibilities for error in the technique of polygraphic interrogation ; and
“d. at the discretion of the trial judge, any other matter deemed pertinent to the inquiry.
“(4) That if such evidence is admitted the trial judge should instruct the jury that the examiner’s testimony does not tend to prove or disprove any element of the crime with which a defendant is charged but at most tends only to indicate that at the time of the examination defendant was not telling the truth. Further, the jury members should be instructed that it is for them to determine what corroborative weight and effect such testimony should be given.”

In this case, evidence highly prejudicial to defendant was admitted without inquiry as to the qualifications of the operator of the machine by means of which the test was given. How important it is that the operator be properly qualified, and the test be conducted under proper conditions, is apparent from the provision made by the Supreme Court of Arizona in People v. Valdez (supra) that notwithstanding the stipulation, in his discretion, the trial judge may reject the evidence unless he is satisfied that the operator is properly qualified and the test was conducted under proper conditions. Recognition of the importance of these matters is further evidenced by the statement of the Supreme Court of Illinois, speaking through Mr. Justice Solfisburg (then Chief Justice) in People v. Zazzetta (supra) at page 309: “In the case at bar a letter was read to the jury, over objection, which clearly indicated that defendant lied when he denied the burglary. No evidence was introduced regarding the method of testing or the qualification of the operator. The expert was not available in person for cross-examination. This entire procedure is claimed to be justified by the oral agreement of the defendant, a man with an eighth-grade education, appearing without counsel prior to trial.

The scientific reliability of the polygraph has long been the subject of dispute among learned experts. Today we are not compelled to take sides in that argument which has not been presented to us. Suffice it to say, that it is common knowledge that the expertise of the operator and interpreter has substantial bearing on the reliability of the polygraph.”

The Supreme Court, in People v. Kazmierczyk, 357 Ill 592, 142 NE 657, at page 597 said: “Courts are especially charged with the duty to carefully examine the evidence in rape cases, where, as has been justly observed by Lord Hale, an accusation is easily made, difficult to be proved, and still more difficult to be defended by one ever so innocent.”

Ch 38, § 121-9, Ill Rev Stats 1965, provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court,” and the stipulation for the admission of this evidence does not foreclose review. The People v. Bradley, 30 Ill2d 597,198 NE2d 809.

We hold that the admission into evidence of the report of the polygraph test was prejudicial error requiring reversal of the judgment. Since the conviction on the charge of rape must be reversed, there is no subsequent conviction to support the judgment based on the Habitual Criminal Act.

We do not remand for a new trial for the reason that after a careful examination of the testimony, absent the evidence improperly admitted, we cannot say that the evidence is sufficient to remove all reasonable doubt of the defendant’s guilt. The People v. Qualls, 21 Ill2d 252,171 NE2d 612.

The testimony shows that the complaining witness, approximately one year prior to the occurrence, had been a patient at Anna State Hospital for the treatment of a nervous disorder, and that approximately two months prior to her confinement to the State Hospital, she had accused her father of an attempted sexual offense.

This history is illustrative of a problem which, from time to time, arises in cases involving prosecution for sex offenses, particularly in those instances where there is little or no corroboration of the testimony of the complaining witness. (See Ballard v. The Superior Court of San Diego County, 49 Cal Rptr 302, 410 P2d 838, and 3 Wigmore, Evidence (1940) § 924a and authorities discussed therein.)

We find no evidence corroborative of the complaining witness’ testimony, and in our opinion, her testimony does not meet the requirement that the uncorroborated testimony of a prosecutrix in a rape case, to sustain a conviction, must be clear and convincing. The People v. Walden, 19 Ill2d 602,169 NE2d 241.

For the reasons herein stated, the judgment of the Circuit Court of Saline County is reversed. The court commends and thanks appointed counsel for an able presentation of the issues on appeal.

Judgment reversed.

EBERSPACHER and MORAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Kenneth A. Green, Defendant-Appellant.
    Gen. No. 10,758. (Abstract of Decision.)
    Fourth District.
    July 25, 1966.
    Rehearing denied August 16,1966.
    Kenneth A. Green, pro se, of Indianapolis, Indiana, appellant; Ralph D. Glenn, State’s Attorney, of Charleston, for appellee.
   Opinion by JUSTICE CRAVEN. Not to be published in full.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Rufus Vail, Defendant-Appellant.
    Gen. No. 49,754.
    First District, Third Division.
    August 12, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Chester P. Majewski and Frederick F. Cohn, Assistant Public Defenders, of counsel) , for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick Murphy, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Rufus Vail was indicted for the crime of rape, waived a jury trial, was convicted and was sentenced to from ten to twenty-five years in the penitentiary.

He contends on appeal that he was not proved guilty beyond a reasonable doubt in that the complainant’s testimony was unbelievable and contradictory and that she was contradicted by police officers, while the defendant’s testimony was reasonable and corroborated.

The complaining witness testified that on a warm summer night, June 30,1963, at approximately 1:00 a. m., she was returning home from a local restaurant. As she approached the gangway leading to her house a man came up behind her and put what she thought was a knife to her neck and put a hand across her shoulders. He “marched” her through the gangway and warned her not to scream or he would kill her. He walked her to the alley and into a nearby yard.

In the back yard he made her take off all her clothes. He then forced her to lie on her stomach while he had rectal intercourse with her. He then made her submit to vaginal intercourse. He broke off branches from a tree and beat her on the lower back and buttocks; he said: “If you scream, I will kill you.”

He said: “Well, I got another idea” and he had her dress and forced her to accompany him down an alley to his second floor apartment two blocks away. As they went he brandished the knife and admonished her to keep quiet and not to try to get away. In his room he again made her remove her clothes and he again forced her to submit to rectal intercourse. While she was lying on her stomach he tied her hands and feet together in back of her with an electric cord, gagged her and left. In about 15 minutes he returned with a quart of beer. He untied her and beat her nude body with the electric cord. He offered her beer but she refused it; he drank it on and off. At one time he had an iron pipe in his hand and he warned her not to scream, saying: “If you do, I’ll kill you right here now.”

She pleaded with him to let her go; he refused and attempted to have oral intercourse with her. She successfully resisted. He eventually fell asleep and she slipped away at approximately 5:40 a. m., put her clothes on outside, ran home and called the police.

When the police arrived she told them what had happened and led them to the defendant’s apartment where they found him asleep on a cot. The prosecutrix identified him and related what had taken place. He denied the acts of violence but admitted having intercourse with her and said he paid her $2.

In his testimony Vail repeated what he told the police. He also testified that he had been drinking that evening and that he had left a bowling alley between 11:15 and 11:30. He said he met the complaining witness on the corner and struck up a conversation concerning drinking and asked if he could accommodate her in that regard. They went to his apartment and he left to get some beer. He returned with a quart and then inquired about having “relations with her and she said yes.” They began to have sexual relations but he lost interest and “never finished.” He said she asked for money and that he gave her $2. He added: “It was just a gift. I just gave her $2.00 for nothing.”

He then lay down and she sat on the edge of the bed drinking beer and talking about different things. He feigned sleep; she shook him but he did not say anything. She then got up, got her purse, the remaining beer and left. He denied beating her up or going in back alleys or yards with her.

The contention that the complaining witness’ testimony is unbelievable is based upon (1) her failure to make an outcry, (2) the improbability of not being seen on a warm night when other people might have been about and (3) on the fact that she claimed that her will to resist normal intercourse was overcome but that she was able to resist oral copulation. The prosecutrix’ failure to make an outcry is understandable. The defendant held a knife to her throat when he first seized her and held it to her lips as they walked to his apartment; there he menaced her with an iron pipe; he repeatedly threatened to kill her and disclosed, by the depravity of his acts and his cruelty in beating her, his capacity for carrying out his threats. Her not being seen or not seeing anyone is not inherently improbable even though the night was warm and the neighborhood residential. She was in a gangway, a back yard and alleys and entered the defendant’s residence from the rear — he lived on the second floor in a rear room. If anyone saw her it was unknown to her and not disclosed by the police. That she submitted to rectal intercourse and normal intercourse but refused to submit to oral copulation does not make her testimony as to the former acts unbelievable. The State’s explanations that her refusal was “undoubtedly a last ditch effort not to be debased any further” and that the defendant was “probably physically exhausted” are not unreasonable. The oral act was attempted after the defendant drank the beer and just before he fell asleep.

The contradictions in the prosecuting witness’ testimony and between her testimony and that of the arresting officers were negligible. We have examined the record and find that she was thoroughly and sharply cross-examined and that her recital of the facts remained remarkably consistent.

Much is made of that fact that the record does not show what happened to the bottle of beer. The defendant said that when she departed she took the bottle with her. The arresting officers testified as to certain items found in the defendant’s room but said nothing about the beer bottle. However, neither side inquired about the bottle. If the record is devoid of testimony concerning it, and it is, the fault lies with the defense as much as with the prosecution.

The defendant’s testimony was corroborated in part by a friend, Jerry Clark. Clark testified that he saw Vail and the prosecuting witness on the night in question laughing and conversing together. Clark said they went into the building in front of which he was sitting in a car. He saw them go upstairs and that about five minutes later Vail came down; Vail went across the street and five or ten minutes later came back with a package and went upstairs again. A few minutes later the lady came down and walked away.

However, the prosecuting witness’ testimony was also corroborated. She made an immediate complaint of the crime. The police responded to her summons 20 minutes after she left the defendant’s apartment. In his apartment the arresting officers found the electric cords which had been used to tie her up and with which she was beaten. They also found the iron bar with which the prosecuting witness said Vail threatened to kill her if she cried out. They saw her body bruises and saw welts from the middle of her back to the calves of her legs. They went to the yard where she said she had been raped and there observed matted-down grass and small branches recently broken off the trees. They found a key in the grass which she had lost and which she told them about when they first questioned her.

In the final analysis this case comes down to the credibility of the witnesses. The defendant’s testimony was supported by Clark’s testimony but his own credibility was attacked by the introduction of his criminal record. In 1959 the defendant pleaded guilty to an indictment for rape and was sentenced to nine years in the penitentiary. The complaining witness’ testimony was corroborated by the testimony of the officers and their observation of physical facts which substantiated her testimony. The trial judge chose to believe her testimony and the officers’ and he was justified in doing so. In a nonjury trial it is the duty of the trial judge to determine the credibility of the witnesses and the weight to be given their testimony, and unless the evidence is so improbable or unsatisfactory as to leave a reasonable doubt of the defendant’s guilt, the finding of the court will not be disturbed. People v. Reaves, 24 Ill2d 380, 183 NE2d 169 (1962).

The defendant was proved guilty beyond a reasonable doubt and the judgment of the Criminal Division of the Circuit Court is affirmed.

Affirmed.

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


text:
    George M. Tarzian, et al., Plaintiff-Appellees, v. West Bend Mutual Fire Insurance Company, a Corporation, et al., Defendants-Appellants.
    Gen. No. 50,176.
    First District, Third Division.
    August 12, 1966.
    Rehearing denied October 20,1966.

      Clausen, Hirsh, Miller & Gorman, of Chicago, for appellants.
    Robert A. Sprecher and Lucian D. Levacarre, of Chicago, for appellees.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

This is an action by three partners, who were engaged in the business of designing and manufacturing machinery, upon fire insurance policies issued to them by the defendants, West Bend Mutual Fire Insurance Company and Badger Mutual Insurance Company. The action sought recovery for damage to four items of special machinery being built by the plaintiffs under a contract with the United States Air Force by reason of a fire occurring March 8, 1957, in an adjoining building. The damage was inflicted by debris from the adjoining building falling upon the machinery which was located in the rear yard of the plaintiffs’ premises. A portion of the damage occurred during the early stages of the fire; another portion was inflicted during the course of wrecking operations ordered by the City of Chicago on the adjoining building.

The plaintiffs filed their complaint in December 1957, claiming there was due from the defendants a sum in excess of $9,214.50 and asking a total of $15,000 damages. Their amended complaint, filed in 1961, asked for a total of $50,000 damages. In each complaint the plaintiffs alleged the issuance of the policies, that the machinery was damaged as a direct result of the fire and that they had complied with all of the conditions of the policies except as to the filing of a timely proof of loss, but that compliance with this condition had been waived by the defendants. The defendants’ answer admitted the issuance of the policies but denied that the loss was a direct result of the fire and that there had been a waiver of the proof of loss requirement.

In both complaints there were additional counts alleging that the Cleveland Wrecking Company, which was engaged by the City of Chicago to demolish the adjoining building, negligently performed the wrecking operations causing a portion of a wall to fall upon the machinery; that the City of Chicago and its Deputy Fire Commissioner, Albert H. Petersen, improperly ordered the demolition of the adjoining building, and that the owners and tenants of that building negligently operated the building thus causing the fire which damaged the machinery. All of these allegations were denied by the respective defendants.

When the case was called for trial, the plaintiffs settled with the owners and tenants of the adjoining building for $3,000 which amount, by stipulation, was to be subtracted from any amount awarded by the verdict. As to these claims the defendants waived any subrogation rights granted to them under the fire insurance policies. After a jury was selected to try the remaining counts there were further settlement negotiations. As a result of these negotiations a mistrial was declared and the counts against the City of Chicago, the Cleveland Wrecking Company and Deputy Fire Commissioner Petersen were severed and submitted to the court sitting without a jury. The court entered judgment on the severed counts in the amount of $5,000. As to this amount the defendant insurance companies did not waive their subrogation rights.

The case then proceeded to trial against the insurance companies before a new jury. At the close of all the evidence the trial court directed a verdict against the defendants and the jury assessed the amount of the damage at $12,750. From this amount the court deducted the $8,000 received from the other defendants and added to the $4,750 balance interest and attorney fees for unreasonable and vexatious delay in payment of the plaintiffs’ loss. The total amount was apportioned between the two defendant companies according to the coverage of their respective policies and judgments were entered against them.

The defendants contend that the trial court erred in directing a verdict against them, in not directing a verdict in their favor and, alternatively, in not submitting the case to the jury in that the policy requirement concerning the filing of the proof of loss had not been complied with and had not been waived. They also contend that the loss was plainly excluded from the coverage of the policies; that the policies were rendered void because of the fraud and false swearing of the plaintiffs in connection with their proof of loss, their examination under oath and their testimony at the trial; that the plaintiffs were not the owners of the claim because prior to the trial they had transferred the partnership assets to a corporation; that the agreed judgments against the City and Cleveland Wrecking Company destroyed their subrogation rights against those parties and thus precluded the plaintiffs from maintaining this action, and that the award of interest and attorney fees was error.

The plaintiffs argue that the defendants are estopped from raising points in this court pertaining to the exclusion from coverage, the alleged false swearing, the ownership of the claim and the loss of subrogation rights because such matters are affirmative defenses which were not pleaded by the defendants as required by the Civil Practice Act (Ill Rev Stats (1963) c 110, §43(4)). We will consider the plaintiffs’ argument and will take up in order each of the above defenses.

First of all, as to the exclusion from coverage: the case was tried by both parties on the issue of whether the loss was excluded from the coverage of the policies, and it does not appear to us under the circumstances of this case that the effect of the exclusion clause, hereinafter discussed, was affirmative matter required to be set forth specifically in the defendants’ answer.

While it is a general rule that a party will not be permitted to argue on appeal a defense not interposed by his answer (Ariola v. Nigro, 16 Ill2d 46, 156 NE2d 536 (1959); Consoer, Townsend & Associates v. Addis, 37 Ill App2d 105,185 NE2d 97 (1962)) various exceptions have been developed to prevent any injustice resulting from its strict application. A defendant may avail himself of a defense which he fails to plead if it is introduced by his adversary, particularly where the defendant prior to trial did not have information enabling him to plead the defense. See 41 Am Jur, Pleading, § 118, p 371; 71 CJS, Pleading, § 101, p 248, and the cases cited therein. The rationale of this exception would seem to be consistent with that of section 43(4) of the Civil Practice Act: any matter known to the defendant which would be likely to take the plaintiff by surprise should be set forth, but if unknown to the defendant prior to trial he likewise should be protected from surprise.

The next affirmative defense pertains to the alleged false swearing of the plaintiffs. The sworn proof of loss tardily filed by the plaintiffs on June 21, 1957, claimed that the cost of labor to repair the damaged equipment to that date was $7,614 and that the approximate labor and material to complete the repair was $837.50. On August 27, 1957, the plaintiff Tarzian was examined under oath, in accordance with the provisions of the policy, and testified that the labor charges to that date were $8,235 and that actual material cost was $700.57. At the time of his testimony only one of the four components had not been shipped to the Air Force. At the trial, however, he testified that the labor cost for repairing the four components was $35,838.90, although the material cost remained at $700.57. The defendants claim that the gross variance between Tarzian’s earlier testimony and his testimony at the trial brings into play the fraud provisions of the policy which provided that in case of “any fraud or false swearing by the insured” whether before or after a loss, the entire policy shall be void.

In Insurance Companies v. Weides, 14 Wall 375, 20 L Ed 894 (1872) the United States Supreme Court said:

“It is true the policies stipulated that fraud or false swearing on the part of the insured should work a forfeiture of all claim under them. The false swearing referred to is such as may be in the submission of preliminary proofs of loss, or in the examination to which the assured agreed to submit. But it does not inevitably follow from the fact that there was a material discrepancy between the statement made by the plaintiffs under oath in their proofs of loss, and their statements when testifying at the trial that the former were false, so as to justify the court in assuming it, and directing verdicts for the defendants. It may have been the testimony last given that was not true, or the statements made in the proofs of loss may have been honestly made, though subsequently discovered to be mistaken. It is only fraudulent false swearing in furnishing the preliminary proofs, or in the examinations which the insurers have a right to require, that avoids the policies, and it was for the jury to determine whether the swearing was false and fraudulent.”

In American Paint Service v. Home Ins. Co. of New York, 246 F2d 91, 64 ALR2d 957, the court followed the Weides case, reasoning that the purpose of the fraud clause is to protect the insurer during the settlement period and that when the claim was in suit the insurer and the claimant were no longer on a nonadversary basis, and stated:

“To permit insurer to await the testimony at trial to create a further ground for escape from its contractual obligation is inconsistent with the function the trial normally serves. It is at the trial that the insurer must display, not manufacture, its case.”

The general rule is stated this way in Couch on Insurance, Vol 14, § 49.555:

“Generally speaking, in order to constitute a defense within the meaning of the fraud clause contained in a fire insurance policy, the fraudulent acts of the insured must occur before the trial, the false swearing provision not applying to perjury at the trial, but only to false swearing in the furnishing of proof of loss and in examinations which the insurer has the right to require.”

But cf.: Weininger v. Metropolitan Fire Ins. Co., 359 Ill 584,195 NE 420 (1935) ; Kavooras v. Insurance Co. of Illinois, 167 Ill App 220 (1912) ; Tenore v. American & Foreign Ins. Co., 256 F2d 791 (7th Cir 1958). It follows that Tarzian’s testimony at the trial however surprising and even if proved to be false, does not create a new defense on the ground of fraud. A fraud sufficient to avoid the policy was committed, if at all, in furnishing the proof of loss or in the examination under oath. Both of these events took place prior to the filing of the complaint, were known to the defendants and if they wished to put fraud in issue as a ground to avoid the policy it was necessary for them to have pleaded it. They did not do so and we therefore will not consider this defense. Of course, if the evidence brought out by the plaintiffs at the trial had revealed for the first time falsity in the proof of loss or false swearing in the examination under oath, and if the defendants had had no prior information which would have enabled them to plead the defense in their answer, they would not be precluded from asserting the defense even though it had not been pleaded affirmatively. These facts would have brought the defense within the exception to the general rule which we discussed heretofore. But there was no evidence to this effect. We also concur in the finding made by the trial judge when, at the close of all the evidence, he denied the defendants’ motion for a directed verdict on this issue: “[0]n the point that you made that there was fraud; the evidence does not sustain either a willful misrepresentation or concealment or any false swearing, . . . there is — has been no proof of any such conduct on the part of the plaintiffs.”

The third affirmative defense concerns the ownership of the claim. The business of the plaintiffs was incorporated and the plaintiffs became the officers and stockholders of the successor corporation. The corporation subsequently became bankrupt. On cross-examination, one of the plaintiffs testified:

“Q. The partnership was incorporated? And were the assets of the partnership transferred to the corporation ?
“A. Yes, they were.”

From this fragment of testimony the defendants argue that “assets” include the claim of the plaintiffs, that the claim was assigned to a corporation and the plaintiffs no longer have an interest in the cause of action. Assuming that this defense was introduced by the testimony of the plaintiff and that the defendants would not have obtained information pertaining thereto prior to the trial (a situation we deem unlikely in view of the liberal discovery provisions of our Civil Practice Act) nevertheless, the evidence on this point, all of which we have quoted, is insufficient to raise an issue of the ownership of the cause of action. If it is sufficient to raise the issue it certainly is insufficient to meet the burden upon the defendants to prove their affirmative defense. The plaintiffs made a prima facie case on the issue of their ownership of the claim by introducing the policy issued to the partnership and identifying themselves as the parties. The burden of proving that they were not entitled to recover because of a change in ownership was upon the defendants. Killion v. Modern Woodmen of America, 202 Ill App 525 (1916).

The last of the affirmative defenses is the defendants’ claim that their right under the policy to require from the insured an assignment of all right of recovery against the City of Chicago and the Cleveland Wrecking Company has been destroyed by the “agreed” judgments and that the self-created inability of the plaintiffs to comply with this condition of the policy precludes them from maintaining an action against the defendants. This affirmative defense arose immediately prior to the trial and is available to the defendants under these circumstances without pleading. As a general rule, if an insured settles with one primarily responsible for the loss and releases him fully from all liability, such release destroys the insurer’s right to subrogation and is a complete defense to an action on the policy. 16 ALR2d, p 1269; 29A Am Jur § 1735, p 811. The purpose of the policy provision is, of course, the protection of the insurer from unilateral or fraudulent action of the insured which effectively deprives the insurer of the ability to recover payments made by it under the insurance contract. Just as other provisions of a policy designed for the protection of the insurer may be waived, so also may the subrogation provisions be waived. Despite the specific nonwaiver by the insurer, we find that as a matter of law the provision has been waived.

Within three days of the fire, the adjuster representing the defendants, who had already admitted liability for the loss inflicted during the early stages of the fire, specifically denied liability for any damage caused by the wrecking. He suggested that the plaintiffs go after the wrecking company for the damage caused by the razing operations. He requested copies of the plaintiffs’ communications with the company. The wrecking company and the City of Chicago were parties to this suit from its inception, and the defendants participated with them in the settlement negotiations after a jury had been selected. The mistrial was declared after there was some indication by the defendants’ counsel that the case would be settled, and it was only after he reported that he was unable to get an authorization for settlement that the plaintiffs proceeded to the previously agreed judgments against the City and the company.

The action by the plaintiffs against the City and the wrecking company was encouraged, if not instigated, by the defendants and they were aware of the progress of the litigation. The defendants permitted the plaintiffs to prosecute and control this litigation and it was only when a settlement not to their satisfaction was arrived at that they took the position that their contractual rights were affected. There is no suggestion that the settlement was unfair or fraudulent and it in fact was approved by the trial court. The insurance companies’ knowledge and acquiescence in the plaintiffs’ course of conduct constitutes a waiver of their right to demand an assignment of the plaintiffs’ cause of action, and their refusal to formally waive this right cannot change the legal effect of their behavior. As was said in Powers v. Calvert Fire Ins. Co., 216 SC 309, 57 SE2d 638, 16 ALR2d 1261 (1950) :

“An insurer will not be permitted to profit from such a course of conduct. It cannot sit down and hold its hands and purse and thereafter escape liability for fulfillment of its contract by reason of the insured’s effort, after fair notice, to recover his loss by litigation against a wrongdoer.”

We conclude that there was no error on the part of the trial court in not directing a verdict for the defendants, and in directing a verdict for the plaintiffs, on the unpleaded affirmative defenses.

The defendants next contend that the failure to file a sworn proof of loss within sixty days after the loss, as required by the policy, was a breach of the policy and a complete defense to the action. The plaintiffs contend that the requirement was waived. A condition in a fire insurance policy requiring proof of loss within a specific period after the date of a fire is valid and the failure to comply with this requirement will relieve the insurer of liability. Miller v. Milwaukee Mechanics’ Ins. Co., 181 Ill App 133 (1913). An insurer may waive the policy provision as to proof of loss. Commerce Union Bank v. Midland Nat. Ins. Co., 43 Ill App2d 332, 193 NE2d 230 (1963). The waiver need not be accomplished by the use of express words. It may be done by conduct inconsistent with an intention to enforce strict compliance with the conditions of the policy, which conduct is calculated to lead the insured to believe that the company did not intend to require compliance. Fray v. National Fire Ins. Co., 341 Ill 431, 173 NE 479 (1930). It is also the rule in Illinois that “an insurer’s denial of liability for loss claimed by an insured to come within the protection of the policy, such denial being based on grounds other than insured’s failure to file proof of loss, waives or renders unnecessary compliance with the policy requirement respecting the filing of proof of loss.” Stoltz v. National Indemnity Co. of Omaha, 345 Ill App 495, 104 NE2d 320 (1952).

In the instant case notice of the fire loss was received by the defendants the morning of the fire and their adjuster visited the scene that afternoon, but prior to the time that the wrecking operations commenced. He testified that he observed some damage to the components which he estimated to be approximately $1,000. He did not deny the liability of the defendants for the losses incurred up to that time. Three days later he was told by the plaintiffs of the further damage incurred during the wrecking operations, and he advised the plaintiffs that such damage was excluded under the policy and liability for such damage was denied. No timely proof of loss was filed for either aspect of the damage.

A similar partial denial of liability was involved in the Stoltz case, supra. There a fire insurance policy was issued which on its face purported to insure a tractor only. The plaintiff claimed that a trailer also was intended to be included in the policy. Both tractor and trailer were demolished in one casualty. The insurance carrier denied that the trailer was covered by the policy. The plaintiff sued for reformation of the insurance contract, was successful and recovered judgment for both tractor and trailer. The insurance company contended that the failure to file proofs of loss barred recovery, but the court said: “The facts show that the defendant admitted liability as to the tractor but denied liability as to the trailer immediately following the loss, claiming that the trailer was not covered by the policy. Under such circumstances it would have been a useless act for the plaintiffs to have filed proofs of loss.”

We believe that the principle enunciated in the Stoltz case is controlling here. The unequivocal denial of the far greater portion of the loss was equivalent to a statement that a proof of loss would not be accepted and considered by the insurance companies arid therefore to have filed it for a lesser amount would have been futile. An unreasonable burden would have been placed upon the insured to separate, at their peril, those items of damage as to which proof of loss was waived from those items as to which proof of loss was required under the penalty of being barred from the benefits of their insurance contract. It is a sounder and fairer view not to permit an insurer to pick and choose as to which items or portions of items of damage it will require or not require proofs of loss. The trial court was correct when it held as a matter of law that the requirement as to proof of loss had been waived by the defendants.

The policies issued by the defendants insured the plaintiffs “against all direct loss by fire” to the property damaged, but provided further that the defendants “shall not be liable for loss by fire or other perils insured against in this policy caused, directly or indirectly, by . . . order of any civil authority except acts of destruction at the time of and for the purpose of preventing the spread of fire. . . .” Both parties have construed this exclusion clause as applying to the destruction ordered by the City on the adjacent premises and the case was tried and decided by the trial court upon this construction. The trial court determined that the fire was still burning at the time of the destruction; that, as a matter of law or of judicial notice, there was a danger of its rekindling and spreading, and that one of the purposes of the destruction was to prevent the fire from spreading. In accordance with this view the court directed a verdict in favor of the plaintiffs. To review this determination requires a review of the evidence.

The fire in the building next door to the plaintiffs’ occurred in the early morning hours of Friday, March 8, 1957, and was of serious proportions. Over forty fire department units and two hundred firemen responded to fire alarms between 3:58 and 4:48 a. m. Deputy Fire Marshal Petersen was in charge of the fire-fighting. He “struck out” the fire at 6:39 a. m. He testified that this meant that the fire was absolutely under control and extinguished for all practical purposes; that at this time most of the floors of the multiple-storied structure had collapsed and any remaining fire was buried and covered with debris but was still smoldering.

All the fire-fighting units except those which were required to overhaul the ruin were then returned to quarters. “Overhaul” was a standard fire procedure because of the requirement that the fire department extinguish fires to the last spark before leaving the premises. Overhauling involved chopping into the debris, exposing the embers and extinguishing them. Two fire companies and a batallion chief, comprising fourteen men, remained at the scene until the morning of March 9th.

About 8:00 a. m. on March 8th, Petersen recommended that the walls of the fire building be torn down because they were in a dangerous condition and a hazard to traffic. He testified that his recommendation was not made in order to prevent the spread of fire but was for safety purposes only. The City of Chicago then employed the Cleveland Wrecking Company to remove and destroy the fire building. The wrecking commenced about 3:45 p. m., the same day and the walls were leveled by 8:30 a. m. the following morning.

The three plaintiffs and a City building inspector testified that they observed the fire burning at various times throughout the day until 4:00 a. m. on March 9th, with firemen hosing down the ruins. Petersen returned to the scene the afternoon of March 8th and saw no flames, although he did observe smoke. The defendants’ adjuster and a coworker were there from about 2:00'to 4:30 p. m. on March 8th and saw no burning or flames. Various photographs were admitted into evidence, the earliest showing the scene about 7:30 a. m. on March 8th; none of them show flames or fire.

Prior to 7:30 a. m. on March 8th, part of the wall of the fire building fell upon the machinery stored in the rear yard of the plaintiffs’ plant. During the course of the wrecking additional bricks and coping fell on the two items of machinery which remained in the yard and by the next morning these two were covered with brick and rubble. The other two components were dragged out of the yard by the wrecking company and suffered damage in the course of the moving.

The test to be applied to a motion for a directed verdict is whether there is in the record any evidence or reasonable inferences arising therefrom which tend to prove the case of the party against whom the motion is directed. In a jury trial, the court cannot weigh the evidence or the inferences but must resolve all controverted questions of fact in favor of the party who opposes the motion. The credibility of the witnesses and the weight of their testimony are questions for the jury. Home Indemnity Co. v. Reynolds & Co., 38 Ill App2d 358, 187 NE2d 274 (1962). There are two basic conclusions that must be reached for the exclusion clause to be applicable — destruction at the time of the fire and destruction for the purpose of preventing the spread of the fire. Both of these are primarily conclusions of fact and we are unable to agree with the trial court that only a question of law was presented.

The jury could have found that the fire was out, or that it was absolutely under control as testified by Petersen, and had ceased to exist as a hostile element at the time the wrecking operation was commenced and that it was, therefore, not a fire within the meaning of the policy. Even if the jury found that the fire did exist at the time of the wrecking, by concurrently finding that it was under control it could reasonably conclude that there was no danger of its rekindling or spreading, and thus could give full weight to the testimony of Petersen that the wrecking was ordered to prevent the walls toppling into the public streets and not to prevent the spread of fire. The conclusion of the trial court that one of the purposes for which the wrecking was ordered was preventing the spread of fire, regardless of whether it was in Petersen’s mind or not, was predicated upon hypothesizing the existence of a fire within the meaning of the policy and the danger of its spreading. While such an hypothesis and conclusion are reasonable they are not exclusively so. A verdict should not have been directed in favor of either side and the case should have been submitted to the jury.

The trial court awarded interest on the amount of damages awarded by the jury, finding that the defendants had been guilty of unreasonable and vexatious delay of payments (as provided by statute, Ill Rev Stats (1963), c 74, par 2) and attorney fees in the amount of $500 (as provided by section 155 of the Insurance Code, Ill Rev Stats (1963), c 73, par 767). No Illinois case has been cited to us, and our own research has discovered none, involving the applicability of the exclusion clause of the policy. Insofar as the defense of the suit was based on this clause our review of the evidence leads us to believe that it was interposed in good faith. The defendants were entitled to their defense thereon without penalty. First Nat. Bank of Highland Park v. Boston Ins. Co., 17 Ill App2d 159, 149 NE2d 420 (1958). Interest and attorney fees should not have been awarded on the basis of unreasonable and vexatious delay. Inasmuch as the case must be retried, the trial court may consider at the new trial whether interest is allowable under some other statutory provision and whether additional costs should be assessed against the defendants under applicable provisions of the Civil Practice Act.

The judgment is reversed and the cause is remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded with directions.

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


author: MR. JUSTICE DAVIS

text:
    Donald Doerr, Margaret Doerr, and Linda Sue Doerr, a Minor, by Her Father and Next Friend, Donald Doerr, Plaintiffs-Appellants, v. Gustavo Villate, Defendant-Appellee.
    Gen. No. 65-130.
    Second District.
    September 1, 1966.
    Supplemental opinion November 10,1966.
    Rehearing denied November 10,1966.

      ABRAHAMSON, J., dissenting.

      Gomberg & Missner, of Chicago, for appellants.
    Lord, Bissell & Brook, of Chicago, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal by Margaret Doerr, plaintiff, from the order of the trial court dismissing Count I of her second amended complaint (herein called the complaint) against the defendant, Gustavo Villate, a physician and surgeon, because it was barred by the two-year provision of the statute of limitations.

In the complaint the plaintiff alleged that she was married, and prior to 1959 had given birth to two children, both of whom were retarded; that in 1959, she and her husband contacted the defendant and made known to him that the plaintiff wanted to be free from any further conception and childbearing; that the defendant entered into an oral contract with her, whereby he agreed to operate on and sterilize her husband; and that the defendant assured and warranted to the plaintiff that the operation would render her husband incapable of procreation as the result of her sexual relations with him.

The complaint further alleged that the operation was performed; that, relying upon the assurances and warranties of the defendant, the plaintiff and her husband resumed sexual relations and as a result, a child was born who was both retarded and physically deformed; that the defendant did not perform the operation properly, as warranted, and did not use proper care and skill therein and thereby was guilty of a breach of warranty and contract; and that as a result of such breach, she became liable for, and will continue to be liable for medical expenses and for other special care and attention necessary for the child thus born.

This action was commenced more than two but less than five years after the performance of the operation. The plaintiff contends that her claim is for property damages resulting from a breach of an oral contract; that the action is governed by section 15 of the statute of limitations; and that it is not barred for a period of five years. (Ill Rev Stats 1965, c 83, par 16.) The defendant contends that the trial court properly dismissed the complaint in that it alleged a cause of action arising from injuries to the person, which action is governed by section 14 and barred after two years from the date of its accrual. (Ill Rev Stats 1965, c 83, par 15.)

In Handtoffski v. Chicago Consol. Traction Co., 274 Ill 282, 285, 113 NE 620 (1916) the court stated that the applicability of a particular section of the statute of limitations depends on the express provision of the statute which fixes the limitation and not on the form of the particular action. In the sections of the statute under consideration, the limitations are based on the particular injury sued for or upon the obligation out of which the action grows. An action for personal injuries, whether based upon a contract or tort theory, is governed by the specific provisions of section 14 relating to personal injuries rather than the more general provisions of section 15. Handtoffski v. Chicago Consol. Traction Co., supra, 286; Jansen v. Illinois Municipal Retirement Fund, 58 Ill App2d 97, 105, 106, 206 NE2d 249 (4th Dist 1965); Seymour v. Union News Co., 349 Ill App 197, 200, 201,110 NE2d 475 (1st Dist 1953); 25 ILP Limitations, § 32.

The same transaction, however, may give rise to an action ex delicto or ex contractu, as the pleader may choose. One transaction may result in personal injuries to one and property damage to another. The same transaction may impose both contractual and noncontractual duties on the various persons involved, and actions arising by virtue of medical malpractice are on no different footing than other types of action. Zostautas v. St. Anthony De Padua Hospital, 23 Ill2d 326, 329, 178 NE2d 303 (1961).

In Zostautas, the court stated at pages 328 and 329:

“In the development of the law the relationship of physician and patient has given rise to actions of a hybrid nature (70 CJS 981; Giambozi v. Peters, (1940) 127 Conn 380, 16 A2d 833; Barnhoff v. Aldridge, (1931) 327 Mo 767, 38 SW2d 1029), sounding in tort or in contract (74 ALR 1256; 151 ALR 1027; 1953 Wash ULQ 413, 416), and both theories are often advanced in alternative counts, as in the instant case. Conklin v. Draper, 241 NYS 529, affd 254 NY 620, 173 NE 892 (1930); Stewart v. Rudner, 349 Mich 459, 84 NW2d 816 (1957); Hickey v. Slattery, 103 Conn 716,131 Atl 558 (1926).
“Although these actions of malpractice and breach of contract may arise out of the same transaction, they are distinct as to theory, proof and damages. (McQuaid v. Michou, 85 NH 299, 157 Atl 881 (1932); Colvin v. Smith, 92 NYS2d 794 (1949); Robins v. Finestone, 308 NY 843, 127 NE2d 330 (1955).) Actions in contract may be based upon an express promise by the physician, such as to perform a Caesarean section (Stewart v. Rudner), or to cure plaintiff of syphilis (Giambozi v. Peters), or to cure an illness within a specified time (Robins v. Finestone) ; or may be based upon the implied obligation arising out of defendant’s employment as a physician to use proper skill and care (Hickey v. Slattery), or to furnish proper medical aid. (Conklin v. Draper.) In such actions liability is predicated on the failure to perform an agreed undertaking rather than upon negligence, and the damages are restricted to the payments made, the expenditure for nurses and medicines, or ‘other damages that flow from the breach thereof’ (Conklin v. Draper), and do not include the patient’s pain and suffering as in malpractice actions (Robins v. Finestone)

The fact that the action is a “malpractice” action is insignificant, except for the fact that in such case the plaintiff is generally suing for damages resulting from injuries to his physical person. However, the applicability of sections 14 or 15 of the statute of limitations is determined by the nature of the injury resulting to the plaintiff.

In the case at bar there was no doctor-patient relationship between the plaintiff and defendant with reference to the operation in question. The plaintiff was neither treated nor injured by the defendant. The operation was not performed on her, although the complaint stated that it was performed as a result of an oral agreement between the plaintiff and the defendant. The complaint does not allege, and the plaintiff does not seek damages for any personal injury to her resulting from the operation, but rather she seeks damages for injury to her property. The damages sought were for defendant’s breach of contract to produce an expressly promised and warranted result in the physical condition of plaintiff’s husband and for breach of defendant’s implied warranty to perform the promised services in a skilful manner, and for other damages attendant to such breach. Damages were not sought for the pain and suffering which plaintiff’s husband experienced, as in malpractice actions.

Section 14 of the statute of limitations and its two-year bar does not apply to every action involving personal injuries, but rather to those where the plaintiff is suing for direct physical or mental injuries. Seymour v. Union News Co., 349 Ill App 197, 201, 110 NE2d 475 (1st Dist 1953); Menolascino v. Superior Felt & Bedding Co., 313 Ill App 557, 569, 40 NE2d 813 (1st Dist 1942); . Roth v. Lundin, et al., 237 Ill App 456, 458 (1st Dist 1925); Bassett v. Bassett, 20 Ill App 543, 548 (4th Dist 1886).

Defendant’s reliance on Zostautas v. St. Anthony De Padua Hospital, supra, is misplaced. The court, at page 333, expressly recognized that the same alleged malpractice may give rise to an action for breach of contract against a physician which is separate and distinct from an action for negligence in its basis of liability and rule of damages.

The plaintiff here was not suing for personal injuries suffered by her as a result of the transaction complained of and it was improper to dismiss her complaint as being barred by the two-year provisions of the statute of limitations. The complaint alleged the breach of an oral contract in failing to sterilize plaintiff’s husband as expressly promised and in failing to use proper care and skill as impliedly warranted. The allegations of the complaint were sufficient to render the five-year limitation applicable.

The motion to dismiss the complaint admitted all facts well pleaded. Reel v. City of Freeport, 61 Ill App 2d 448, 451, 209 NE2d 675 (2nd Dist 1965). Consequently, under our view of the law, the complaint stated a cause of action. Accordingly, the cause is reversed and remanded with directions to reinstate the complaint and proceed in a manner not inconsistent with the views expressed herein.

Reversed and remanded.

MORAN, P. J., concurs.

ABRAHAMSON, J., dissenting.

Supplement to Opinion on Denial of Petition for Rehearing

In the Petition for Rehearing, the defendant is critical of the language of our opinion which states: “Section 14 of the Statute of Limitations and its two year bar does not apply to every action involving personal injuries, but rather to those where the plaintiff is suing for direct physical or mental injuries.” And, the defendant also urges that the cases cited in support of this statement do not so hold.

The defendant contends that when any cause of action is related to, or arises as a consequence of personal injuries — even though to a person other than the plaintiff — the two-year limitation of section 14 must apply. This is not so, and the defendant has misconstrued the following cases:

In Bassett v. Bassett, 20 Ill App 543 (1886) — an action by a wife against her father-in-law, who wrongfully caused her husband to desert her — at page 548, the court stated:
“The cause of action for an injury to the person which is barred in two years is limited to a direct physical injury to the person. If it were intended to include all injuries to personal and relative rights, the legislature would not have considered it necessary in the same act to provide specially for a period of time in which an action should be brought for many of the injuries to such rights. Thus actions to recover damages for slander and libel, false imprisonment, malicious prosecution, abduction, seduction and criminal conversation, are expressly provided for, showing the clear intent of the legislature to limit ‘injuries to the person’ to those of a physical nature. This case is one of those not specially provided for, and would therefore seem to be governed by the fifteenth section of the act making five years the limitation.”

In Roth v. Lundin, 237 Ill App 456 (1925), plaintiff’s wife was injured in a collision between plaintiff’s car— driven by his minor son while plaintiff and his wife and daughter were in the car — and the jointly owned car of the defendants. Plaintiff sued for the cost of repairing his car and for the services of a physician in the treatment of his wife for the personal injuries sustained. Defendants set up the two-year statute of limitations as a defense to the physician’s services. Plaintiff contended “(1) that, inasmuch as plaintiff is not suing for an injury to his own person but for damages occasioned to him by reason of his marital relationship to the injured party, the time limited for the commencement of his action is governed by section 15 of said Act rather than by section 14; and (2) that, even though the two year limitation be applicable, the action was commenced in time.” At page 459 in Roth, the court held:

“We, however, hold that the time for the commencement of plaintiff’s action for the recovery of all damages as enumerated in his statement of claim should be governed by section 15 of said Limitations Act and not by section 14; and that, even if it be considered that section 14 is applicable to the portion of his claim for the payment of said physician’s bill, his action for the recovery of the amount of said bill as damages was commenced in time.”

In Menolascino v. Superior Felt & Bedding Co., 313 Ill App 557, 40 NE2d 813 (1942), at page 569, the court held that the determination of which statute of limitations applies in a given case depends on whether plaintiff’s claim is for personal injuries or for property damage suffered by him; and that the cause of the injury — negligence or nuisance — bears no relation to this determination.

In Seymour v. Union News Co., 349 Ill App 197, 110 NE2d 475 (1953), the plaintiff sued for damages resulting from direct personal injury to himself. Suit was not brought within two years and the complaint was dismissed on motion. Plaintiff insisted that he was suing only for injury to his property and not for injury to his person in that his amended complaint was not based on damages for pain and suffering, but rather for loss of earnings and moneys expended for medical treatment. The court affirmed the judgment against the plaintiff and held that the two year limitation applied to damages which arose directly or indirectly as a result of injury to the person of the plaintiff. At page 201, the court distinguished Roth and Bassett stating:

“In Roth v. Lundin, 237 Ill App 456, the court applied the five year limitation where a husband sued for medical expenses incurred by reason of his wife’s injuries. The court concluded that the action of the husband was not based on a direct injury to his person. In Bassett v. Bassett, 20 Ill App 543, a suit by a wife against her husband’s father for maliciously enticing her husband to separate from her, the court held that the action was not for damages for injury to the person of the plaintiff and that it came within the five year limitation. The suit involved no injury to the person of the plaintiff.”

The rationale of the foregoing cases sustain our original opinion and our determination that the allegations of the complaint were sufficient to render the five year limitation of section 15 applicable. Consequently, we adhere to the opinion as originally adopted and the petition for rehearing is denied.

Reversed and remanded.


author: SMITH, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John R. Cox, Defendant-Appellant.
    Gen. No. 10,712.
    Fourth District.
    September 8, 1966.

      Albert E. Hurt, Public Defender, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, for appellee.
   SMITH, J.

Defendant was sentenced for a term of 10-30 years on a jury conviction for the crime of burglary. He asserts as reversible error: (a) A prejudicial newspaper account and (b) improper evidence of flight and an instruction thereon.

Defendant and Orville Thompson were jointly indicted for burglarizing the Friendly Tavern. Severance was granted and Thompson was tried and convicted. One Vernon Hall, a 15-year-old patron of the Illinois Youth Commission, admitted his participation and implicated both Thompson and Cox. Both Hall and Thompson testified for the People, the latter as a Court’s witness. While the trial was in progress, the only morning paper in Decatur published an article in which the defendant Cox was designated as an “ex-convict” with whom the witness Hall “shared the loot”; stated that Thompson was convicted of the burglary on May 6 — some three weeks before; that Hall testified that they went on a round of burglaries including two gasoline stations and that “Cox was sentenced to 1 to 20 years in prison for car theft in 1945 and to 3 years to life for burglary in 1950.” The defendant moved the court to inquire of the jury as to whether or not they had read the article. The motion was denied. There is nothing in the record to indicate that the jury had read the article and the trial court on four occasions, both before and after the occurrence, cautioned the jury about reading newspapers or listening to radio broadcasts, television, etc., and instructed them that innocence or guilt should be based solely on evidence heard by them in the courtroom and that anything read in the newspapers, heard on radio or seen on television should be disregarded.

We are thus brought to focus on the ever increasing conflict between freedom of the press and the right of an accused to a fair trial — a right that insures, so far as human agencies can, that any conviction is founded on courtroom evidence tempered by the known everyday experiences of mankind but not stained or tarnished by improper considerations. The all too frequently recurring occasions when the news media editorializes and comments rather than reports a trial in progress coupled with the questionable practice of some prosecutors, some defense counsel and even some judges to do a better job in the press than they do in the courtroom is of no small concern to devotees of constitutional government. Freedom, as we know it, has never and does not now imply freewheeling. Unrestrained freedom in an organized society is the progenitor of chaos. Either the agencies mentioned police themselves or judicial restraints or sanctions must be devised to insure a fair trial in the courtroom of those charged with crime. Sequestration of the jury or new trials are time consuming and expensive alternatives to self-imposed and self-invoked conduct which will assure to all the constitutional guarantees of a fair trial. Otherwise, it is not the defendant who loses the right to a fair trial, it is society that loses the right to try him.

The United States Supreme Court in two recent cases has discussed the problem. Estes v. Texas, 381 US 532, 14 L Ed 543, 85 S Ct 1628 (1965); Sheppard v. Maxwell, 384 US 333,16 L Ed2d 600, 86 S Ct 1507 (1966). In Sheppard, page 620, Justice Clark lays down the ground rules with this language:

“. . . But we must remember that reversals are but paliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures. . . .”

Both Estes and Sheppard seem to hold that prejudice is affirmatively shown where both the trial and pretrial conduct of all media was conducted in a carnival atmosphere and the probabilities of prejudice to the defendant is clearly evident even to the reviewing court. Such proceedings are lacking in due process. We do not deal with any such situations here. It seems clear the published material was not subject to the carnival disabilities of Estes or Sheppard. The difficulty here is that we do not know what effect the published material may have had on the verdict. No inquiry was made. No prejudice is affirmatively shown. The nature of the material and the conduct shown does not approach Estes or Sheppard to the extent that the probabilities of prejudice are clearly evident. It is true that inquiry of a jury during the progress of a trial is apt to be unsatisfactory but it at least gives some suggestion as to whether the verdict was tainted with improper consideration and improper influences. Once known, it is not every publication, inadvertently made, that warrants a new trial. The People v. Malmenato, 14 Ill2d 52, 150 NE2d 806; People v. Taylor, 32 Ill2d 165, 204 NE2d 734. It is clear that several items of the instant publication would have been inadmissible if offered in evidence. It ought not reach the jury through the back door and affect its verdict when the front door is closed to it. Where such a situation arises, it is clearly the duty of the trial court to determine, if alerted, so far as he can whether the article contains improper matter, whether it was read and whether its reading would or could affect the verdict. The failure to do this in the case at bar requires that this case be retried. In Sheppard, seven of the twelve jurors were not interrogated about their reading of newspapers and there is a clear inference that due process requires that this be done. This divergence of views on this subject is clearly illustrated by the majority opinion and the dissents in People v. Hryciuk, 5 Ill2d 176, 125 NE2d 61. It is clear that the determination to be made by the trial court rests not alone on what the jury says on interrogation, but the nature of the published material together with all other facts and circumstances in the record. It calls for the exercise of a sound judicial discretion, the abuse of which will constitute reversible error. People v. Murawski, 394 Ill 236, 68 NE2d 272. It strikes us that inquiry of the jury is at least a condition essential to the exercise of a sound discretion and that due process ought not hang in balance on the conjecture that no harm was done. At least human agencies will have done all that is humanly possible to ascertain the truth of the matter even though it should not have been necessary were it not for the inadvertent publication of facts incompetent and improper for jury consideration. This does not imply that every newspaper article published during trial requires an interrogation of the jury. Its nature, content and prejudicial effect, if any, is to be resolved by the trial court in an exercise of sound discretion. The article must be produced and made a part of the record and its prejudicial effect, if any, first carefully explored by the trial court. We would further observe that a cautionary instruction to the jury during the trial to avoid the use of the news media about the trial, conversing with others or among themselves is advisable. In this case, it was error to refuse the motion to interrogate the jury.

Hall testified that some eight days after the burglary he, Cox and Thompson were in Cox’s car and saw a police car with a red light flashing. Cox, the driver, said, “Jack, let’s jet it” and they did. A chase followed, and the car was wrecked and Hall was apprehended. Cox and Thompson were not caught. This evidence and the giving of the flight instruction is error. There is nothing in this record that suggests that Cox knew or should have known that he was a suspect. In the absence of such proof, the evidence is inadmissible and an instruction on flight improper. People v. Harris, 23 Ill2d 270, 178 NE2d 291; People v. Herbert, 361 Ill 64, 196 NE 821.

The alleged error of improper rebuttal testimony is not likely to recur on a retrial and we do not comment on it.

For the reasons assigned the judgment of conviction is reversed and the cause remanded for a new trial in conformity with the views expressed herein.

Reversed and remanded.

TRAPP, P. J. and CRAVEN, J., concur.


author: CRAVEN, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John R. Cox, Defendant-Appellant.
    Gen. No. 10,731.
    Fourth District.
    September 8, 1966.
    James A. Uhl, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Milo J. See, Jr., Assistant State’s Attorney, of counsel), for appellee.
   CRAVEN, J.

The defendant was charged in a criminal complaint with the crime of burglary and released on bond. Subsequently he was indicted for the offense, tried and convicted. The original bond was increased, after conviction, and a personal recognizance for the additional bond was filed and approved.

A motion for a new trial in the burglary proceeding then pending was set for hearing July 8, 1965. On the date this motion was to be heard defendant was not personally present in court, although his attorney was present. By reason of his absence at the time of the scheduled hearing on the motion for a new trial, the bail bond was ordered forfeited, as was the personal recognizance. Notice of forfeiture was ordered.

Thereafter the defendant was indicted for the offense of violation of bail bond (c 38, § 32-10, Ill Rev Stats 1963) and by the first count of the indictment was charged with having unlawfully failed to appear for a hearing on a motion for a new trial. In Count II of the same indictment the defendant was charged with the offense of failure to appear in violation of c 38, § 110-2, Ill Rev Stats 1963. The allegations as to the offense in Count II related to the same conduct, i. e., failure to appear at the time of the hearing on the motion for a new trial. The defendant was subsequently apprehended, was tried and convicted of both offenses, and given concurrent sentences. This appeal is from that conviction.

The bail bond here involved was conditioned that the defendant “shall personally be and appear ... on the 17th day of February, . . . 1965, and thereafter as ordered by the Court until discharged . . . and shall submit himself to the orders and process of the Court,” together with other conditions not here relevant. The personal recognizance, so far as here applicable, had the same conditions.

In this case the motion for a new trial had been set for hearing on July 8, 1965, and there is no controversy but that, other than this order setting the motion, there was no order of the court entered requiring the defendant to be present on that day.

Thus the question presented to us for decision is whether there was a duty on the part of the defendant to appear and whether his failure to appear is sufficient to convict under the now criminal provisions applicable to bail-bond jumping and failure to appear.

The People assert that the defendant’s presence was required and cite People v. Tidmarsh, 113 Ill App 153 (1904), 66 CJS, New Trial, § 189, and 8 CJS, Bail, § 82, as authority for that point of view.

We have examined the chief authority and do not find the general rules there stated to be persuasive that the defendant’s personal presence was required.

A long line of authority in this state is to the contrary. In Bonardo v. People, 182 Ill 411, 55 NE 519 (1899), the court found no error in the fact that an argument upon a motion for a new trial was made before the judge, in chambers, by counsel and in the absence of the defendant. In that case the ruling on the motion was made in the presence of the defendant. In People v. Harris, 302 Ill 590, 593, 135 NE 75 (1922), the court discusses the right of the defendant to be present at his trial and to confront witnesses, and held that when a defendant voluntarily absented himself from the trial he waived his right to be present. In People v. Woods, 27 Ill2d 393, 189 NE2d 293 (1963), the court held that the constitutional right of the defendant to be personally present did not extend to hearings which do not involve substantial rights of the accused, such as the argument of motions prior to trial or subsequent to verdict. The case of People v. Steenbergen, 31 Ill2d 615, 203 NE2d 404 (1965), is to the same effect.

We are mindful that the last cited cases relate to privileges of the defendant which can be waived. Implicit in those holdings, however, is the determination that the defendant is under no duty to be present at the time of hearings on motions and that his absence from such hearings does not vitiate any action taken. Thus it appears to us that the absence of the defendant at the time of the hearing of the motion for a new trial was not, in the absence of a court order compelling his presence, a violation of the conditions of the bail bond or the personal recognizance but was merely a voluntary absence amounting to a waiver of his right to be present.

It necessarily follows that the indictment here involved, alleging only his absence from the hearing on the motion for a new trial, was insufficient to state an offense, and the conviction and sentences imposed thereunder must be and the same are reversed.

Judgment reversed.

TRAPP, P. J. and SMITH, J., concur.


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    People of the State of Illinois, Plaintiff-Appellee, v. Billy Roy Sims, Defendant-Appellant.
    Gen. Nos. 10,713, 10,714, 10,715. (Consolidated.)
    Fourth District.
    September 8, 1966.

      Kenneth E. Evans, of Decatur (James E. Fuson, of counsel), for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Franklin E. Dove, of counsel), for appellee. ’
   SMITH, J.

Defendant appeals from a conviction of rape, armed robbery and aggravated kidnapping. His conviction rests largely upon the testimony of three accomplices all of whom had pleaded guilty and were awaiting sentence. All three testified that they expected it to go easier with them as a result of their testimony for the State. The identification of the defendant by the victim is not very conclusive and, absent the testimony of the accomplices, would be insufficient to support the conviction.

The defendant, Billy Sims, and codefendants, Joel Gentry, Gary Hall and Jerry Crum, were jointly indicted. Sims stood trial. The other three pleaded guilty to all three charges and testified for the State. The evidence shows substantially the following: The four were cruising about in the Hall car when they came across the victim and her boy friend parked on a country road. At gunpoint, they robbed them, Gentry and Crum doing this job while masked. They then left the boy friend and took the girl with them to a point some 5 to 6 miles distant. Here the boys got out of the car. Hall got back into the car, slapped the victim, ripped her clothes and had intercourse with her. Sims followed suit and Crum followed him. Gentry made an attempt but told the others he could not rape the girl. They then talked about killing her but finally let her out of the car near a park.

The victim did not identify Sims in the lineup and in fact told the deputy at the time that he definitely was not one of the men who raped her. She then testified she was not now saying that he definitely was not one of the men who raped her. It is thus apparent that the identity of Sims rests squarely with his three associates. The jury saw and heard their testimony. It is uncontroverted that the four were together earlier in the afternoon and had been drinking. The Hall car was the vehicle used, for the victim saw the ceiling light was taped over and so it was in the Hall car. The alibi of Sims falls far short of covering the time periods involved in this transaction. We have carefully read this record and the testimony of the three accomplices is remarkably free of variation. It is substantially corroborated by the victim in all respects except the positive identification of Sims. It seems to us that this record convicts beyond a reasonable doubt if the jury believed Gentry, Hall and Crum. We see no reason for disturbing the verdict.

Defendant complains of the opening statement of the prosecution which characterized Sims as a rapist, a robber and a kidnapper; to a statement that they would “hear from Jerry Crum — I think his name fits his game.” Timely objections were made and were sustained. The opening statement is subject to criticism as being over enthusiastic, argumentative, and not properly factual. The court corrected the matter and the State did not pursue it further. To like effect was part of the closing arguments. We deem neither incident reversible error nor sufficiently beyond the pale to require a new trial.

'The trial court refused the right of the defendant to call the victim as his own witness and this is assigned as error. She had testified fully for the State. The only purpose of such testimony would have been to rehash her inability to positively identify Sims and to reiterate that the two she did identify had been charged with the crime i. e., Gentry and Hall. She was not at all certain of their identity. This testimony was at most a repetition and we do not think the trial court abused its discretion in subjecting the victim to further examination to cover ground already adequately covered.

The defendant objects to the refusal of his Instruction No. 7 which told the jury that if there were two theories in the case, one showing guilt and another innocence even though the greater weight of the evidence supports guilt, still if there remained a reasonable doubt, it is the duty of the jury to resolve this doubt in favor of the defendant and acquit him. Defendant also objects to State’s instruction outlining the weight to be given the testimony of accomplices and the refusal of defendant’s instruction on the subject. We have gone into the record to read the instructions and are satisfied that the jury was adequately instructed even though all of the given instructions are not abstracted. Where they are not all abstracted, the propriety of an instruction given or refused is not preserved for review.

We thus conclude that there is no error in the record and that defendant has had his day in court with a fair trial. Accordingly, the judgment is affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


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    People of the State of Illinois, Plaintiff-Appellee, v. Edward Miller and Clifford Withers, Defendants-Appellants.
    Gen. No. 10,757.
    Fourth District.
    September 8, 1966.

      Hugh J. Graham, of Springfield, for appellants.
    Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield (Richard A. Hollis, Assistant State’s Attorney, of counsel), for appellee.
   SMITH, J.

Defendants appeal from a conviction of the crimes of rape, contributing to the delinquency of a minor and conspiracy to commit the crime of rape. The State has confessed error as to the conviction for conspiracy and our basic consideration will relate to the crime of rape only. Defendants contend that guilt was not established beyond a reasonable doubt, evidence of general reputation for truth and veracity was improperly admitted and refusal of defendants’ instruction on burden of proof was error.

The victim had met the defendant Withers previously, had learned from a girl friend that he was a nice person, and on the day in question was asked to go out with him. She said he would have to meet her mother first. At about 9:45 on the evening in question, he called, met the mother, and he and the victim left together to get a coke in Withers’ car. They picked up the defendant Miller and another boy and went to a swimming hole near Oakcrest Country Club. Victim then testified that Withers had intercourse with her; that he ripped her shorts off, pulled her panties down on her legs, and that she fought, scratched and bit him. When he finished, Miller did the same thing and then came the third boy. The shorts and panties were bloody and the zipper on the shorts was broken. The boys took her back home, let her out next door and she made immediate complaint to her mother. She was taken to the hospital and doctor and police officer corroborated her condition. The doctor testified to swelling, lacerations and bleeding in the pubic area. The vagina contained some 3% teaspoons of a bloody watery fluid and spermatozoa. The defendants denied this story, stated that the victim voluntarily removed her shorts and panties, and voluntarily laid down in the front seat. Miller testified he was in the back seat of the car, slept part of the time and did not have intercourse with the victim, an explanation which didn’t sound plausible to the jury. Pictures of the scratches and the bite on Withers was offered in evidence. The shorts the boys had on that night were examined by the crime lab and revealed the presence of spermatozoa.

A careful reading of the record in this case suggests ample evidence to support the jury’s verdict and to establish the guilt of both defendants beyond a reasonable doubt. It is urged that Withers and Miller are in a different category and that there are no marks or scratches on Miller as there were on Withers to corroborate the victim. While this is true, it is equally true that there is other sufficient corroboration of his participation in the act. Where several act in concert and together, as they did here, they may be indicted and proceeded against in a single indictment. People v. DeStefano, 332 Ill 634, 164 NE 131. The reading of this record leaves us with as little doubt in the mind of this court as it did in the mind of the jury. We are satisfied the jury’s finding is correct beyond a reasonable doubt.

The State correctly confesses error on the conspiracy count. Ill Rev Stats 1965, c 38, § 8-5 provides :

“No person shall be convicted of both the inchoate and the principal offense.”

Conspiracy is the inchoate and rape the principal offense. The trial court erred in entering judgment and the conviction on Count III of the indictment is reversed. This does not, however, affect the judgment on the rape charge. People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299.

Withers and his wife testified that the marks on his face were inflicted by the wife when he got home that night. In rebuttal, the State produced a police officer who testified he was acquainted with the reputation for truth and veracity of the defendant and his wife in the community in which they reside. He answered “it was bad.” No objection was made to this testimony nor was there any motion to strike when it appeared that the opinion was based on rather isolated facts. Thus, the matter is not properly preserved for review. In any court, it is common practice to pursue the methods used here in attacking the credibility of a defendant who takes the stand. People v. Bakutis, 377 Ill 386, 36 NE2d 724. It follows that the evidence and the instruction based thereon was proper.

Defendant also complains of the refusal of the court to instruct the jury that the burden is on the State to prove every material element of the offense beyond a reasonable doubt and that the burden of proof never shifts to the defendant. This instruction was refused by the court solely on the grounds that “the court believes it is repetitious.” The substance of the instruction is contained in People’s No. 12. There is little doubt that the jury was properly informed as to the burden of proof. There was no error in refusing the instruction.

Since the same facts are the basis for the contributing to the delinquency of a minor charge, the sentence should have been on the rape only. The State agrees that People v. Ritchie, 66 Ill App2d 302, 213 NE2d 651, controls.

The judgment of the trial court is affirmed as to the rape charge and reversed as to conspiracy and contributing to the delinquency of a minor.

Affirmed in part and reversed in part.

TRAPP, P. J. and CRAVEN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Henry Bradley Robertson, Defendant-Appellant.
    Gen. No. 10,761.
    Fourth District.
    September 8, 1966.

      Russell R. Goehl, Public Defender of Adams County, of Quincy, for appellant.
    Donald G. Adams, State’s Attorney of Adams County, of Quincy (Robert J. Bier, Assistant State’s Attorney, of counsel), and William G. Clark, Attorney General, of Springfield (Fred G. Leach, of counsel), for appellee.
   SMITH, J.

Defendant appeals from a judgment entered on the verdict sentencing him to 7-14 years in the penitentiary for robbery. His single contention in this court is that the court erred in denying a new trial where four jurors read an article in the evening newspaper containing some material which would have been inadmissible if offered as evidence. The jury stated on interrogation by the court that they had formed no opinion of guilt from anything contained in the article and were both admonished and instructed on the subject. We have had occasion to discuss the problems this presented in People v. John R. Cox, 74 Ill App2d 342, 220 NE2d 7, opinion filed today, and reference is made to our observations contained therein. In the light of the views there expressed, we turn to the facts in this case.

The article appeared on the society page of the evening paper on the first day of the trial. It read as follows:

“Selection of Jury Started in Hold-up Case — Selection of a jury was started in Circuit Court Monday to try Henry Bradley Robertson, 49, an ex-convict, on a robbery charge. He is accused of holding up Charles Behymer, bartender in Louise’s Comer Tavern, at 2346 State January 19 and obtaining $20.40.
“The bandit fled in a truck, but the license numbers were obtained and Hannibal (Mo.) police arrested Robertson on request of Quincy police. Robertson refused to waive extradition, but extradition papers were honored by the Governors of Missouri and Illinois. He has been in the county jail. When arrested Robertson gave his address as 210 Lafayette, Palmyra, Mo.”

The following morning defendant moved for a mistrial. On interrogation four jurors admitted reading the article. Each was asked whether he had formed any opinion as to guilt from the reading of the article and answered in the negative. The court then admonished the jury that they were to be uninfluenced by public opinion or detracting outside influences of any kind or character. He then said:

“. . . I will ask the jury to respect your obligation as jurors and to purposely avoid reading anything concerning this trial. May I have your assurance that you will avoid reading anything about it. The court observes that each of the jurors are nodding. Motion denied. You may proceed.”

Other than the reference to “ex-convict” and resistance to the extradition, there was otherwise in the evidence from the testimony of witnesses that the truck involved bore a Missouri license; that witnesses went to Missouri to identify the defendant; that the Hannibal, Missouri police had been alerted and caught defendant and his companion as they came across the bridge. Defendant’s companion in the truck testified. It is patent from this record that they were leaving the state. We think this record is closely akin to People v. Taylor, 32 Ill2d 165, 204 NE2d 734 (1965) and the conclusion reached there should obtain here, i. e., that the newspaper articles did not deprive the defendant of his right to a fair trial. The circumstances here do not come close to the inflammatory nature of the newspaper articles considered in People v. Hryciuk, 5 Ill2d 176, 125 NE2d 61; People v. Kenzik, 9 Ill2d 204, 137 NE2d 270, and People v. Murawski, 394 Ill 236, 68 NE2d 272, where the jury was not admonished by the court. The defendant is entitled to a fair trial but not to an immaculate trial. The interrogation of the jury tends to negate any undue influence. While not conclusive, it is properly considered along with the nature and character of the statements themselves. People v. Malmenato, 14 Ill2d 52, 150 NE2d 806. Malmenato suggests that before a trial court can be said to have abused its discretion in the denial of a new trial, it must reasonably appear from the nature and character of the newspaper article itself, or from the interrogation of the jurors, or from all the circumstances in the case in the aggregate that the jurors, or at least some of them, have been so influenced or prejudiced that they could not be fair and impartial. Such evidence is wholly lacking in this case. The trial court indubitably felt that the defendant had a fair trial. There is no basis in this record for us— who were not on the stage as the scene unfolded — to find that he abused his discretion in denying the motion for a new trial. See People v. Brinn, 32 Ill2d 232, 204 NE2d 724. Judgment affirmed.

Affirmed.

TRAPP, P. J., concurs.

CRAVEN, J., dissents.


text:
    Vinita Mueller, Plaintiff-Appellant, v. Robert E. Kaiser, d/b/a Kaiser Supply Company, Defendant-Appellee.
    Gen. No. 10,743.
    Fourth District.
    September 8, 1966.
    Rehearing denied September 29,1966.
    Bellatti, Fay & Bellatti, of Jacksonville (William L. Fay, of counsel), for appellant.
    Earl S. Hodges, of Springfield (Samuel C. Patton, of counsel), for appellee.
   SMITH, J.

Plaintiff sustained injuries in a fall over a Samsonite overnight case of another patron in defendant’s store. The jury returned a verdict in the sum of $3,500. On motion, the trial court set aside the verdict and entered a judgment notwithstanding the verdict in favor of the defendant. From such judgment order, plaintiff appeals. The sole contention of the plaintiff is that this record presents a question of fact for the jury and not a question of law for the court.

Plaintiff entered the store from the south and made her way into the store along a rubber mat or runner. She did not see the Samsonite bag, 10-12" x 6-8" x 10-12" until after her fall. She testified it was then about two feet to the east of her and about two feet east of the rubber runner or tread. Miss Fernandes who had called for her father at the store placed the bag some eight feet inside the door and 2-3 feet east of the edge of the mat about fifteen minutes before the accident. The store manager first observed the bag some 6-8 feet from the doorway and about 6-8 feet from the center of the runner. It is thus apparent that there is little dispute in the evidence and a clean-cut question either of fact or law is presented. Plaintiff’s theory is that the bag was there long enough for the management to have constructive knowledge of its presence and a duty to remove it.

Plaintiff relies heavily on Garrett v. National Tea Co., 12 Ill2d 567, 147 NE2d 367, where it was held that a jury might properly find from the evidence that a box of canned goods was obstructing an aisle and had been there long enough for management to have seen and removed it. This case is readily distinguishable from the one at bar in the following respects: (a) The Samsonite bag apparently was not in the aisle and there is no testimony in the record from which the jury could so find, and (b) the so-called obstacle was not related to defendant’s business, was not placed there by the defendant, and was not a part of its operations. It strikes us as extremely doubtful that any person, looking at the placement of this Samsonite bag prior to the accident, would have regarded it as a hazard. It was of a size and color to be readily visible. It was not in the aisle or pathway. To stumble over it required a departure from the ordinary travel pattern of customers or invitees in the store. Even if it may be said that the management had ample time to see and to remove the bag, could a jury reasonably say that it was a hazard or an obstruction in a regularly traveled portion of the store or so situated that a reasonably prudent employee should have recognized a hazard to invitees? We think the trial court correctly concluded that it was not. In so holding, we can readily agree that the fifteen minutes time element is one ill suited for a rule of law, but is basically a jury question dependent upon the circumstances of each case.

We have previously stated the circumstances under which a motion for directed verdict or a judgment n. o. v. is proper. Ferguson v. Lounsberry, 58 Ill App2d 456, 207 NE2d 309. The facts here are well beyond the pale of any case cited to us. We are aware of the increasing willingness of the courts to accept less and less evidence of negligence or contributory negligence. Donoho v. O’Connell’s, Inc., 13 Ill2d 113, 148 NE2d 434. Even so, “we firmly adhere to the rule that a storekeeper is not the insurer of his customer’s safety. Liability must be founded on fault, and where, as here, there is no evidence, direct or inferential, of negligence by defendants in the maintenance of the store premises, liability may not be imposed.” Olinger v. Great Atlantic & Pacific Tea Company, 21 Ill2d 469, 476, 173 NE2d 443, 446. In Olinger, there was no proof that the coldene on the floor was placed there by the defendant and there was, thus, no liability. Here the affirmative proof is that the Samsonite bag not only was not connected with defendant’s business, but was not even in his possession or control nor was it placed there by him. In addition, even had an employee noted the location of the bag, we think it would scarcely have reasonably alerted anyone to an existing customer hazard. To impose liability under such circumstances is to extend the duty of policing its store beyond the reasonable requirement of ordinary business.

In our judgment, the trial court properly entered a judgment n. o. v.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.