text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward L. Flowers, Defendant-Appellant.
    Gen. No. 51,808.
    First District, First Division.
    September 16, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John J. Van Zeyl and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Edward L. Flowers, was charged in a two-count indictment with having committed the crimes of rape and indecent liberties with a child. Upon his waiver of a jury trial, he was tried and found guilty of both charges, and judgment was entered upon said finding. Sentence was imposed only on the rape conviction for a term of from two (2) to eight (8) years in the State Penitentiary. Defendant appeals from the judgment entered on the finding of guilty.

On appeal the defendant contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt of the offenses charged in the indictment, and also that the sentence imposed by the trial judge was excessive.

The complaining witness, Brenda Matthews, who was thirteen years of age at the time of the incident, testified that she was returning home from a visit with some girl friends at around 4:30 p. m. on March 24, 1966. As she was crossing a bridge between 25th and 26th Streets on State Street, the defendant, whom she had never seen before, came up behind her. He called her by name and grabbed her by the arm. He asked Brenda to go with him. When she refused, he hit her in the mouth, knocking her to the sidewalk. Brenda then spotted her father entering her apartment building. She called out to him, but he didn’t hear her and entered the building. She started to run. The defendant stopped her by hitting her twice in the mouth. According to the complaining witness, the defendant then forced her to accompany him to the lobby of a building at 2350 South State Street. She stood in a corner of the lobby and the defendant talked to her for about a minute. At this point, a girl named Dorothy Albert, entered the building. She talked to the defendant for a moment and left. The defendant then forced Brenda to go with him to a building located at 44 West 24th Street by hitting her in the face and twisting her arm. The defendant shoved her up the stairs to a third-floor landing where he ripped off her panties and had intercourse with her. Brenda further testified that after the defendant began to push her up the stairs she began to scream. When the defendant finished he told Brenda that “. . . if I told anyone what had happened, that Chico and other boys was going to give my mother, the same thing to her that they did to me.”

The complaining witness testified that when she got home that evening her knees were scraped and her face was swollen. She told her mother that she had received the injuries in escaping from a man who had chased her. She was afraid to tell her mother the truth because of the threats made by the defendant. However, when her mother came to see her at school the following day she told her the truth about what had occurred. Brenda next saw the defendant on March 27th, at the police station. At that time, in the presence of Brenda, her mother, Detective Albertson and several other policemen, she said the defendant first stated that he hadn’t raped her. He then stated, however, that Brenda had been willing to give in at the beginning, but then she had started to resist. “He said he had to rough me up.”

Brenda’s mother, Mattie Matthews, testified that when her daughter came home at about 7:00 p. m., on March 24th, she was hysterical and she had bruises on her mouth, legs and knees. Mrs. Matthews further testified that her daughter told her that she had been chased by a man. The following morning Mrs. Matthews found blood spots on the sheets of her daughter’s bed, and she also found blood on Brenda’s panties. The same day she went to Brenda’s school where her daughter related what happened. According to Mrs. Matthews, she saw the defendant for the first time at the police station on March 27th. She heard him tell Detective Albertson that he didn’t know Brenda and that he had asked her to go with him; the defendant stated further that while Brenda was agreeable at first, she subsequently changed her mind, and “he had to rough her up and take it.”

Detective Merle Albertson testified that while he was interrogating the defendant, the latter individual first told him that he had engaged in intercourse with the complaining witness on the day in question, and on several occasions prior thereto, but that he had always done so with Brenda’s consent. However, after Albertson confronted the defendant with the fact that Brenda had been bruised, he changed his story. He told Albertson that Brenda had at first wanted to do it and had changed her mind, “and he had to beat her up and take it.”

Dorothy Albert, a witness called on behalf of the State, testified on direct examination that she saw the defendant and the complaining witness standing together in the lobby of the building at 2350 South State Street. On cross-examination the witness stated that she first saw the defendant standing alone on her way to the grocery store, and that when she returned from the store she noticed Brenda standing in a corner of the lobby.

The defendant, who was seventeen at the time of the trial, took the stand in his own behalf and testified that he met Brenda on March 24, 1S66, when she was standing in the lobby at 2350 South State Street. He further testified that he had engaged in sexual intercourse with Brenda prior to March 24th; and that on the latter date, on the third-floor landing of the stairway at 44 West 24th Street, he had intimate relations with her again. The defendant denied that he had at any time exerted force upon Brenda; and he stated that the act of intercourse on March 24th took place with her consent. The defendant explained the bruises on Brenda’s mouth and legs by testifying that he broke a bottle against the wall in the 2350 building and the flying glass had injured the complaining witness. He denied telling Detective Albert-son that he had “roughed up” Brenda to compel her to engage in sexual intercourse with him.

The defendant contends that he was not proved guilty of rape beyond a reasonable doubt in that the complaining witness was not credible and the evidence introduced did not establish the necessary degree of force. A conviction for rape can only be sustained if the victim’s will to resist has been overborne, and satisfactory evidence must be introduced to demonstrate that the act was against her will. People v. Jeanor, 23 Ill2d 347, 178 NE2d 384; People v. Elder, 25 Ill2d 612, 186 NE2d 27. Whether the victim’s will has indeed been overborne depends on the facts of each particular case. People v. Smith, 32 II12d 88, 203 NE2d 879. In the case at bar, three witnesses for the State testified that the defendant stated that he had to “rough up” the complaining witness to achieve carnal knowledge of her. Furthermore, Brenda’s testimony, corroborated by that of her mother, tended to show that she had been threatened and beaten by the defendant. Under these circumstances we cannot say, as we must to reverse, that the proof of defendant’s exercise of force over his victim was so unsatisfactory as to justify a reasonable doubt of his guilt.

Defendant argues that the testimony of the complaining witness was inconsistent and incredible. “Obviously the testimony of the defendant as to what happened is more consistent and more credible than the testimony of the prosecuting witness.” Suffice it to say, in answer to this argument of defendant, that even if we differed with the trial judge in his determination of the credibility of witnesses we would not substitute our own judgment for his, for he is in a far better position to make such a determination than we are. People v. Woods, 28 Ill2d 582,187 NE2d 692.

The defendant next contends that he was not proved guilty beyond a reasonable doubt of the crime of indecent liberties with a child. We find no merit in this contention. Brenda and her mother both testified that the defendant’s identity was unknown to them prior to the act in question. Under these circumstances, the trial judge, who was also able to observe the complaining witness’ physical appearance, was clearly justified in concluding that the defendant did not reasonably believe Brenda was sixteen years of age or older at the time he compelled her to engage in sexual relations.

Finally, the defendant contends that pursuant to our power to reduce sentence (Supreme Court Rule 615(b) (4)), (Ill Rev Stats 1967, c 110A, § 615) we should reduce his sentence which he claims was excessive in light of all of the surrounding circumstances of the occurrence. The sentence imposed on the rape conviction was within the statutory limits fixed by the legislature. We will not interfere with the trial judge’s discretion in fixing sentence unless the sentence imposed is manifestly excessive. People v. Hobbs, 56 Ill App2d 93, 205 NE2d 503. We do not believe that such a situation is presented by the case at bar. The evidence reveals that the complaining witness was beaten and threatened by the defendant in conjunction with his sexual attack upon her person. Under these circumstances we see no reason to reduce the sentence.

The judgment of the Criminal Court is therefore affirmed.

Affirmed.

ADESKO and MURPHY, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE McNAMARA

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard E. Jackson and Carl Staats, Defendants-Appellants.
    Gen. Nos. 51,848,51,849.
    First District, Second Division.
    July 2,1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

The defendants, Richard E. Jackson and Carl Staats, were indicted for burglary. At a bench trial they were convicted of that crime and each sentenced to a term of from two to five years in the Illinois State Penitentiary. On. appeal the defendants urge reversal, contending that neither the corpus delicti of the crime nor the guilt of the defendants was proven beyond a reasonable doubt.

On April 30, 1966, at about 5:50 a. m., Carl Bowman looked out of his fourth-floor apartment window, located at 3803 North Fremont Street, Chicago, and saw a man standing at the back of the Standard Oil gas station located at 853 West Sheridan Road. The man appeared to have a tire iron in his hand. When Bowman again looked out of the window a few moments later he saw one man inside the gas station in the area of the wash rack and another man standing outside the station. Bowman asked his roommate to call the police as he immediately ran down from his apartment. When he reached the street and approached the gas station, he saw two men “running out of the back of the service station.” Bowman identified these men in court as the defendants. As the two men ran, they were chased by two policemen. When the two men were caught and brought back to the gas station, Bowman identified them as the same men he had seen running from the rear of the station. He also testified that at the time he observed one man inside the station and one man outside he could not identify either man. Bowman, though not employed at this station, was an employee of the Standard Oil company.

Officers Hourihane and Rivera of the Chicago Police Department testified that they each responded separately to a police radio call. Officer Hourihane pursued defendant Jackson and captured him in an apartment building hallway about a block from the gas station. At that time, Jackson told the officer that he had been only looking in the service station window. Officer Rivera captured defendant Staats in a parking lot across the street from the gas station. The tire iron mentioned by Bowman was never located.

Lester Blackburne, the station manager, testified that he found that a window in the overhead glass door in the back of the gas station was broken when he arrived at 6:00 a. m., April 30, 1966, but that nothing had been taken from the station. He also testified that defendant Jackson had been an employee of the gas station until a month prior to this incident. The window broken was approximately fifteen inches by eighteen inches and was located about a foot to eighteen inches above the ground. It was one of many glass panels on the overhead door. A flexible steel strap, five eighths of an inch wide, used to lock the doors, ran across the middle of this panel of glass. James Monroe, owner of the gas station, testified that he was five feet eight inches tall and weighed 190 pounds, and that it would be difficult for him to crawl inside that broken window. However, he also testified that it would be possible for a thinner man to crawl inside if the flexible steel strap were pushed down six to eight inches, and that this strap could be pushed down even further than eight inches.

Defendant Carl Staats, who was five feet five inches tall and weighed 120 pounds, testified that he and the defendant Jackson had been out drinking on April 30. They tried to visit some friends who lived a few doors from the gas station, but found that their friends had moved away. Upon leaving that building, both defendants stopped behind the gas station to relieve themselves. Staats also testified that he saw the broken window, but that neither he nor Jackson broke the window or entered the station. He stated that to the best of his knowledge it would not have been possible for him to crawl through the window. He also testified that he did not recall seeing any broken glass around the broken window panel.

Officer Hourihane testified in rebuttal that he saw no evidence of human excretion when he examined the rear of the gas station.

Defendants first contend that the State failed to prove beyond a reasonable doubt the elements of the crime of burglary.

Section 19-1 of the Criminal Code (Ill Rev Stats 1967, c 38, § 19-1), defines the crime of burglary as:

“(a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, . . . with intent to commit therein a felony or theft.”

To convict the defendants of burglary the State had to prove beyond a reasonable doubt that the crime was committed and also that the defendants were guilty of the commission of the crime. People v. Bridgewater, 369 Ill 633, 17 NE2d 556 (1938). The gist of the offense of burglary is the entering of a building with a felonious intent. People v. Clark, 30 Ill2d 216, 195 NE2d 631 (1964).

Defendants argue that there was a reasonable doubt that a crime was committed because nothing was taken from the station and there was no testimony that anything had been disturbed or removed. However, the crime of burglary is complete upon the entering with intent to steal, and it is not essential to allege or prove that anything was taken. People v. Dennis, 28 Ill2d 525, 193 NE2d 14 (1963); People v. Diggers, 23 Ill2d 516, 179 NE2d 626 (1962). In support of its position, defendants cite People v. Hutchinson, 50 Ill App2d 238, 200 NE2d 416 (1964), where the court reversed a conviction in which the defendant had entered and spent five minutes in the kitchen, then left without removing any articles or leaving the premises in a disorderly condition. But in that case, the defendant had parked his car directly back of the house at about 3:15 in the afternoon then left without being disturbed or intercepted. Here, the crime was committed at 5:50 in the morning, entry was made through a small window, and the two men were chased from the scene.

Defendants further urge that there was reasonable doubt that a crime had been committed because of the size of the broken window, its inaccessibility due to its close proximity to the ground and also because there was no testimony as to when or how the window was broken. However, the evidence established that the broken window was large enough for a man to enter. The station owner testified that it would be difficult for a man of his size to get through the broken panel, but that it would be possible for a smaller man to do so. He also testified that the flexible strap on the inside of the window could be pushed aside so as to gain entry. Defendants cite People, v. Kelly, 84 Ill App2d 431, 228 NE2d 561 (1967), where the court reversed a conviction for attempted burglary because there was no proof that defendant had tampered with the locks on the victim’s back door. But in that case, the complainant testified that he did not notice that the locks on his door had been tampered with on the night of the burglary, but discovered that fact some time after the incident. In the instant case, it was not necessary in establishing the corpus delicti that the State introduce evidence that either of the defendants had broken the window because the element of entry and the manner thereof may be inferred from the facts in evidence. People v. Heise, 35 Ill2d 214, 220 NE2d 438 (1966). The intent to commit theft may also be inferred from the evidence. People v. Johnson, 28 Ill2d 441, 192 NE2d 864 (1963). Since there was testimony from the owner of the station that he had given no one authority to enter the gas station at that time, the testimony of Bowman that he saw one man inside the station, then after running downstairs, saw the two men running from the station, was sufficient to establish that a burglary had been committed.

Defendants next contend that they were not proven guilty of the crime of burglary beyond a reasonable doubt.

It is well settled that a conviction of burglary can be predicated upon circumstantial evidence. People v. Brown, 27 Ill2d 23, 187 NE2d 728 (1963). To warrant a conviction on circumstantial evidence the facts proved must so thoroughly establish the guilt of the person accused so as to exclude every reasonable hypothesis of his innocence. People v. Dougard, 16 Ill2d 603, 158 NE2d 596 (1959). However the trier of fact is not required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt. People v. Huff, 29 Ill2d 315, 194 NE2d 230 (1963).

Defendants argue that since Bowman could not identify the man who was inside the station, their mere presence at the scene was not sufficient to support a conviction, citing People v. Anderson, 30 Ill2d 413, 197 NE2d 24 (1964) and People v. McGee, 21 Ill2d 440, 173 NE2d 434 (1961). In the Anderson case, the Supreme Court reversed a conviction where the only evidence connecting defendant with the crime was that he lived near the building which had been burglarized, ate his meals in a restaurant located 75 feet from the building and had often jokingly asked a friend where any money was kept which he could take. In the McGee case, the defendant’s arrest was made two days after the burglary and was based on a description given by witnesses none of whom claimed to have a satisfactory view of the defendant. Both cases are distinguishable from the instant case.

In the case at bar, while the evidence is circumstantial, we find that evidence to be sufficient to support the convictions. At 5:50 a. m., Bowman saw one man inside the station and one man outside of the station. It was shown that entry could be made through a broken panel in the glass door in the rear of the station. After seeing a man inside the station, the witness ran down four flights of stairs in time to observe two men whom he positively identified as the defendants run out of the back of the station. Police arriving at the same time chased defendants and apprehended Staats in a parking lot across the street and Jackson hiding in a hallway in an apartment building down the street. Defendant Jackson told Hourihane that he was just looking in the service station window. Defendants point out that the tire iron referred to by Bowman was never recovered, but the trial judge specifically took that fact into consideration before making his decision, and we do not believe the failure to locate the tire iron makes the proof so unsatisfactory as to constitute a reasonable doubt. “Because a trial court as the trier of fact is peculiarly suited to determine questions of truthfulness, a reviewing court will not readily substitute its own conclusion, (citation omitted), unless the proof is so unsatisfactory as to justify a reasonable doubt of guilt. (Citation omitted.) ” People v. Boney, 28 Ill2d 505, 510, 192 NE2d 920 (1963).

We find that defendants received a fair trial, and their guilt of the crime of burglary was proved beyond a reasonable doubt.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

BURKE, P. J. and LYONS, J., concur.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Kennedy (Impleaded), Defendant-Appellant.
    Gen. No. 51,887. (Abstract of Decision.)
    First District, Third Division.
    September 12,1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Kavanaugh, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    Henry W. Miller, Jr., Plaintiff-Appellee, Cross-Appellant, v. Board of Education of School District Number 132, Cook County, Illinois, Defendant-Appellant, Cross-Appellee.
    Gen. No. 51,900.
    First District, Third Division.
    July 3,1968.

      Klein, Thorpe, Kasson and Jenkins, of Chicago, (Franklin W. Klein and Newell N. Jenkins, of counsel), for appellant.
    Block and Solomon, of Chicago (Milton H. Solomon and Irving L. Block, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff in this action petitioned for reinstatement as a public school teacher and for damages suffered by reason of his wrongful discharge by the defendant Board of Education of School District Number 132 (hereinafter called the Board). The Circuit Court of Cook County found in plaintiff’s favor, ordered his reinstatement and awarded damages in the sum of $25,000. Defendant appeals from that decree.

Defendant contends that plaintiff abandoned his right to reinstatement by failing to report for work when requested to do so by the Board and that the court erred in assessing the amount of damages. The facts follow.

Plaintiff was dismissed from his position as an elementary school teacher on April 15, 1960. He filed suit under the Administrative Review Act, seeking reinstatement. The ensuing litigation has now produced three appeals — Miller v. Board of Education, 37 Ill App2d 451, 186 NE2d 790; Miller v. Board of Education, 51 Ill App2d 20, 200 NE2d 838 (leave to appeal denied) and the instant appeal. In the second appeal this court found that plaintiff had been wrongfully discharged and was entitled to reinstatement. The Supreme Court denied leave to appeal on November 23, 1964, and on November 27, 1964, the Board met in a special evening session for the sole purpose of considering the plaintiff’s reinstatement. The Board voted to reemploy plaintiff at a salary of $5,400, the amount he was receiving when discharged in 1960, and thereupon sent him a notice, requesting that he report for work on December 1, 1964. The notice did not state the salary Miller was to receive nor did it describe the position he would be given. Miller’s attorney informed the Board by letter that the mandates of the reviewing courts had not yet issued and asked that the plaintiff be granted an extension of time so that he could terminate his temporary appointment with the Chicago Heart Association. It appears from further correspondence that the parties were unable to agree upon the time or conditions of reemployment, that the negotiations were unproductive and that Miller did not return to work.

On May 19, 1965, plaintiff filed his petition for reinstatement and for damages. Defendant contends that plaintiff waived his rights by failing to report for work and by waiting some five months to file his petition for reinstatement. This matter has now been in litigation eight years. The parties have been recalcitrant, intractible and uncooperative, but they have not slept on their rights. Plaintiff’s right to reinstatement was conclusively established by the first four years of litigation and the only remaining question is the amount to which he is entitled by reason of his wrongful discharge.

Defendant charges that the trial court erred in the assessment of damages in the following respects: (1) plaintiff’s lost wages should have been based on the amount he was receiving at the date of his dismissal; (2) plaintiff failed to properly mitigate his damages, and (3) plaintiff was not entitled to recover attorney’s fees and court reporter’s costs.

Proceeding to the first point, defendant argues that the salary of a tenure teacher is determined by the contract tendered to him each year and that the salary remains the same unless an increase is provided. It further contends that under section 10-7 of the School Code, Ill Rev Stats, c 122, § 10-7 (1967), the Board is required to submit each teacher’s contract to a yea and nay vote. It further argues that since no contract was tendered to the plaintiff during the period of his discharge and since no vote was taken, his salary remained. at $5,400 per year, which would amount to a total of $24,600 for the period. Deducting from that amount the plaintiff’s earnings plus the sum which the defendant contends that plaintiff should have earned during that period would leave a balance of $8,329.40.

When a teacher serving under contractual continued service is wrongfully dismissed, the trial court is authorized to order reinstatement and to determine the amount for which the Board is liable, including but not limited to loss of income and costs incurred therein. Ill Rev Stats, c 122, § 24-12 (1967). Lost wages therefore are one element of the damages, and the amount of such lost wages would be that amount a teacher would normally have received had he not been discharged less the amount he earned or reasonably should have earned in mitigation. Compton v. School Directors of Dist. No. 14, 8 Ill App2d 243, 131 NE2d 544.

Minimum salaries for full time public school teachers are set by statute which directs that there shall be taken into consideration educational background and teaching experience. Ill Rev Stats, c 122, § 24-8 (1967). Individual school boards are thereafter free to prepare pay schedules not inconsistent with the statute. Richards v. Board of Education, 21 Ill2d 104, 171 NE2d 37. In the instant case several pay schedules prepared by the defendant school district were accepted in evidence and they provide a basis for determining the salary the plaintiff would have received had he been retained during the period in question. At the time of his discharge he was receiving $5,400 per year. The balance of his salary for the 1959-60 term would have been $1,200. Salary schedules for the following years reflect upward revisions for all salaries and show that if the plaintiff had received the increases shown therein, his salary would have been $7,675 for the 1964-65 term. By applying the schedules in evidence and taking credit for the increases in salary which would have accrued during the period of discharge, the wages lost for the period from April 15, 1960 to February 1, 1966 amounted to $39,887.50. Plaintiff’s earnings during the same period totaled $19,136.56, so that his net loss through February 1,1966 was $20,750.94.

Defendant contends that the Board is not bound to follow the salary schedules and is under no obligation to increase salaries automatically by reason of an employee’s additional experience. It contends it has a complete right to determine in each case whether a teacher earned a raise or not, and in no event would a teacher have the right to a higher wage level until a contract had been duly tendered and executed. Following his wrongful discharge, there was no occasion to tender the plaintiff a contract or to submit the terms of his employment to the Board for a vote.

The question is not what amount the Board offered the plaintiff, but what he could reasonably have expected to receive in the normal course of events. Defendant’s district superintendent when called as an adverse witness testified that he had been employed by the Board since 1947 and that he prepared the pay schedules which were submitted to the Board. He did not recall a single instance in which a teacher had been employed by the school district at a rate below that shown in the schedules, and although the Board reserved the right to withhold experience increments, he did not recall any instance in which it took such action. There is no sound basis shown in the evidence for withholding the experience increments plaintiff would normally have received.

We proceed to consider the Board’s contention that the plaintiff failed to properly mitigate his damages. It is argued that he was unemployed for a substantial period of time; that on one occasion he took an eleven week camping trip and that for a total of fifteen months he worked without pay at the Harvey YMCA and the Beverly YMCA as a gymnasium instructor. Plaintiff replied that he sought placement through the University of Illinois and the County Superintendent of Schools; that he wrote to 134 school superintendents in an unsuccessful attempt to find a teaching position and at one time was forced to take a job as a laborer in a can factory. He contends that the nature of his discharge and the pending litigation made it impossible for him to find a position in the teaching profession and that the defendant was benefited by his acceptance of other work. The trial court concluded that plaintiff acted with reasonable diligence in attempting to mitigate the damages. The finding is not against the manifest weight of the evidence. Compton v. School Directors of District No. 14, 8 Ill App2d 243, 131 NE2d 544.

The Board contends that plaintiff is not entitled to attorney’s or court reporter’s fees as an element of damages. The order of the trial court specifically states that the award in the sum of $25,000 does not include any attorney’s fees. Hence the only issue is with respect to court reporter fees. Defendant contends that court costs were not recoverable at common law and therefore can be imposed and recovered only when authorized by statute. Adams v. Silfen, 342 Ill App 415, 96 NE2d 628. The statute in question makes the following provision with respect to damages:

“If the decision of the board is reversed upon review or appeal, on a motion of either party the trial court shall order reinstatement and shall determine the amount for which the board is liable including but not limited to loss of income and costs incurred therein.” (Emphasis added.) Ill Rev Stats, c 122, § 24-12 (1967).

The question is whether court reporter fees are included in the definition of “costs” as used in this statute. The law requires that a stenographic record shall be made of dismissal proceedings held by a school district and that the cost of that service is to be borne equally by the teacher and the board. The party requesting a transcript must pay for it. Ill Rev Stats, c 122, § 24-12 (1967). Court reporter fees were a necessary expense incurred by the plaintiff and he is entitled to reimbursement therefor. It should be noted that the statute, after prescribing loss of income and costs as damages, provides that damages shall not be limited to such items. Hence some additional damages must have been contemplated by the legislature.

Plaintiff has lost wages amounting to $20,750.94 through February 1, 1966. He incurred an additional loss of wages of $1,500 in the period pending the final order of the trial court. He testified he had incurred court reporter fees and other costs amounting to $2,274.-70 through February 25, 1966, resulting in liquidated damages of at least $24,525.64. The small sum of $474.36 is left to be accounted for as other damages. Plaintiff has undergone eight years of litigation which included three appeals to this court and a petition for leave to appeal to the Supreme Court. The damages fixed by the trial court are reasonable under the circumstances to compensate the plaintiff and terminate this action.

[8] The final point to be considered is the plaintiff’s cross-appeal for increased damages. Plaintiff contends that he should receive an additional $15,000 as compensation for damages to his professional reputation and for punitive damages. He cites no authority, and we can find none, for imposing such damages in this case. The damages awarded by the trial court were fair and adequate.

Decree affirmed.

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


author: MR. JUSTICE ENGLISH McCORMICK, P. J.,

text:
    People of the State of Illinois, Appellee, v. Anthony V. Jendrzejak, Appellant.
    Gen. No. 51,913.
    First District, Fourth Division.
    July 17,1968.

      McCORMICK, P. J., dissenting.
    John E. McKeigue, of Harvey, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Daniel Weil, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged

Driving while under the influence of intoxicating liquor. (Ill Rev Stats (1967), c 95i/2, § 144.)

Judgment

After a bench trial, defendant was found guilty and fined $200.

Contentions on Appeal

(1) Defendant was denied a fair trial because of the admission into evidence of a statement which had been obtained from him in violation of his constitutional rights.

(2) Defendant was not proven guilty beyond a reasonable doubt.

Evidence

At a Hearing on Defendant’s Motion To Suppress Evidence.

Leonard Ruksha, arresting officer.

When he came to the scene of the accident, and was investigating what had happened, defendant admitted driving. Defendant made this statement before he was restrained or arrested.

(Defendant’s motion to suppress was denied.)

At the Trial

Leonard Ruksha, for the State.

He was a police officer. At 2:17 a. m., April 8, 1966, he saw a car in the ditch along Austin Boulevard at 92nd Street. Defendant was standing on the roadway. Ruksha investigated to determine how the car got in the ditch and who owned it. Defendant stated that he was the owner and driver of the automobile. Thereupon, Ruksha arrested defendant and took him to the Oak Lawn police station.

Ruksha made the following observations regarding defendant: (1) There was a strong odor of alcohol on his breath; (2) he was talkative, insulting, and cocky; and (3) his speech was mumbled and “mush-mouthed.” On intoxication performance tests his balance was wobbly, his walking was staggering, his turning was swaying, and on the finger-to-nose test he completely missed with both hands. Defendant refused to take the coin test. He also refused to answer any questions from the Alcoholic Influence Report Form. In Ruksha’s expert opinion, defendant was unfit to drive because he was under the influence of intoxicating liquor.

Anthony V. Jendrzejak, defendant.

He and his wife were at a social gathering on the evening of April 7. He had imbibed sufficient alcohol to have been, in his own opinion, unfit to drive. For this reason his wife took the wheel for the trip home while he slept in the car. He awoke to find the car in the ditch. He quarreled with his wife, who then departed, leaving him alone standing in the roadway where Officer Ruksha found him. He was the owner of the car and had driven it to the social gathering.

Sman Jendrzejak, for the defense.

She was defendant’s wife. She corroborated her husband’s testimony, adding that she swerved the car into the ditch to avoid hitting what she believed was an animal on the road. After quarreling with defendant, she left him and the car in the ditch and went home (some 19 blocks away).

Opinion

(1) Initially, defendant contends that the trial he received was unfair. His only argument in this regard is that his statement that he was the owner and driver of the automobile was erroneously admitted into evidence in violation of his Fifth Amendment rights, as enunciated in Miranda v. Arizona, 384 US 436.

However, the uncontroverted testimony of Officer Ruksha shows that the statement (which defendant does not deny making) was made before defendant was either restrained or arrested. Further, the record does not indicate that the statement was made in response to a specific inquiry. On the contrary, it appears defendant volunteered the statement during a period of general on-the-scene questioning. “Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.” Miranda v. Arizona, supra, at 478. In our opinion, the evidence demonstrates that the admission was obtained in such a manner as to render it competent.

(2) Secondly, defendant contends that the State failed to meet its burden of proving beyond a reasonable doubt both the corpus delicti and the guilt of defendant. See People v. Miller, 23 Ill App2d 352, 356, 163 NE2d 206. He argues that since both his and his wife’s testimony was to the effect that he hadn’t driven the car on the night in question and that the only evidence that he did drive the car was his statement to Officer Ruksha, the proof does not support the conviction.

Defendant cites People v. Skelly, 409 Ill 613, 100 NE2d 915, for the proposition that the positive testimony of a witness, uncontradicted and unimpeached, either by other positive testimony or by circumstantial evidence, intrinsic or extrinsic, cannot be disregarded but must control the decision, unless it is inherently improbable. See People v. Miller, supra, at 358. Though we find no fault with this proposition, it is not applicable to the instant facts. The testimony of defendant and his wife must first be considered in the light of their interest in the outcome of the case, and we note here that the trial judge made an express finding that he did not believe either of them. Then, too, their testimony is contradicted by Ruksha’s testimony of defendant’s admission, which defendant did not deny having made. Further, it is inherently improbable that a husband, whose wife had just driven his car into a ditch and left him there with the car at about 2:00 a. m., would not have mentioned the incident to an investigating officer, either at the scene or in the lengthy conversations which ensued at the police station. Cf. Carroll v. Krause, 295 Ill App 552, 15 NE2d 323. Under all the circumstances of this case, it was not error for the trial judge to disbelieve and totally disregard the testimony of defendant and his wife. People v. Schehr, 88 Ill App2d 287, 292-293, 232 NE2d 566. The trial judge and not the reviewing court has the opportunity to observe the witnesses and is, therefore, in a superior position to evaluate credibility.

Still, defendant argues that even if the defense testimony is disregarded, the corpus delicti has not been established, since the only evidence that he drove the car is the policeman’s testimony concerning defendant’s own statement or admission. Not so, for in People v. Nachowicz, 340 Ill 480, 495,172 NE 812, the court said:

While it has been held that a defendant’s confession, when the corpus delicti is not otherwise proved, is insufficient for a conviction, this does not mean that the corpus delicti must be proved by the evidence, aside from the confession, beyond a reasonable doubt. On the contrary, it was early held that it is the mere naked confession, uncorroborated by any circumstance inspiring belief in its truth arising out of the conduct of the accused or otherwise, which is held insufficient to convict, and the corroborating fact or facts in proof need not necessarily, independent of the confession, tend to prove the corpus delicti. (Citation.) Direct and positive evidence is unnecessary to prove the corpus delicti, (citation) and it is not essential that it should be established by evidence independent of that which tends to connect the accused with its perpetration.

Thus, the evidence corroborating a confession or admission need only consist of facts or circumstances tending to confirm and strengthen it. People v. Lueder, 3 Ill2d 487, 489, 121 NE2d 743.

Without regard to the evidence of defendant’s statement, the facts and circumstances in evidence tended to prove — although, let us say, not beyond a reasonable doubt — that defendant drove the car. The car had recently been driven into the ditch and the owner was present. In a civil case, where the quantum of proof is the preponderance of the evidence, a motor vehicle is presumed to have been driven by its owner. E. g., Robinson v. Workman, 9 Ill2d 420, 137 NE2d 804; Sutherland v. Guccione, 8 Ill App2d 201, 131 NE2d 130. This presumption is founded in large part on the high probability that the underlying inference is correct. By analogy, the facts and circumstances presented by the case on appeal are sufficiently persuasive to support the inference that defendant was the driver of the car. Thus, there is evidence which tends to strengthen and confirm the admission.

Therefore, the determinative question remains whether the whole of the evidence proves defendant’s guilt beyond a reasonable doubt. We believe that it does.

People v. Gamier, 20 Ill App2d 492, 156 NE2d 613, is sufficient authority to control the decision in this appeal. Garnier’s drunken driving conviction was affirmed by this court. The only evidence that he had driven the car while intoxicated was that he was sitting in the car which was illegally parked some 40 blocks from the place where he had been imbibing. There was no evidence that he had been seen driving the car. Judge Lewe, speaking for the court, found the inference that he had driven the car from the place where he had been drinking to the place where it was illegally parked, was sufficiently strong to establish guilt beyond a reasonable doubt, citing People v. Falkenberg, 5 Ill App2d 578, 126 NE2d 408. Judge Kiley dissented, taking the position that the inference was not so persuasive as to meet the burden of proof. Judge Kiley distinguished Gamier from Falkenberg by reference to the fact that Falkenberg admitted he had “just hit a car.” This admission, which is a parallel to the case now before us, renders both the majority and dissenting opinions in Gamier highly persuasive of affirmance here.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, J., concurs.

McCORMICK, P. J.,

dissenting.

I am unable to agree with the majority opinion. This is a criminal case and in my opinion the State did not meet its burden of proving beyond a reasonable doubt both the corpus delicti and the guilt of the defendant.

At this time it is necessary to observe that the only transcript presented in the case before us is the trial judge’s summary of the evidence, after having had summaries presented to him by the State and the defendant.

In People v.. Lueder, 3 Ill2d 487, 121 NE2d 743, the court discussed the question and quoted from People v. Nachowicz, 340 Ill 480, 495, 172 NE 812, where it was held that when a defendant’s confession is insufficient for a conviction where the corpus delicti is not otherwise proved, it does not mean that the corpus delicti must be proved by the evidence, aside from the confession, beyond a reasonable doubt. The court in Lueder said at page 488:

“The crime being clearly shown, independently of admissions or confessions, to have been committed by some person, the admissions or confessions freely or voluntarily made may be considered in connection with the other evidence to establish the corpus delicti, and it is sufficient if evidence of other facts and circumstances so fully corroborates the confession as to show the commission of the offense beyond a reasonable doubt. [Citing cases.] ”

In the majority opinion substantial reliance is placed upon the statement appearing in the record that when a police officer arrived and found the car in question in a ditch along the boulevard, and the defendant standing in the roadway, he “investigated to determine how the car got in the ditch and who owned it. Defendant stated that he was the owner and driver. . . .” The officer then arrested the defendant. There is no question that the defendant was intoxicated at the time.

On the trial of the case the defendant testified that he and his wife were at a social gathering on the evening in question and that he had drunk sufficient alcohol to make him, in his opinion, unfit to drive. His wife then drove the car while he slept, and he was awakened by the car going into the ditch. He and his wife then quarreled and she left him standing in the roadway where the police found him. Defendant’s wife corroborated his testimony, and stated that she swerved the car into the ditch to avoid hitting what she thought was an animal on the road; that she quarreled with her husband and went home, leaving him there with the car.

The testimony before the court is that there was an automobile in the ditch. There is no evidence on the part of the State as to who was driving the car at the time it ran into the ditch, except the admission made by the defendant. It is worthy of note that in that admission the defendant does not admit he was driving the car at the time it went into the ditch, or even on the day in question. According to the court’s summary he simply said he was “the owner and driver of the car.”

In the majority opinion the court refers to People v. Skelly, 409 Ill 613, 100 NE2d 915, in which case the court stated at page 616 that the abstract rule of law is

“. . . that the positive testimony of a witness, uncontradicted and unimpeached, either by positive testimony or by circumstantial evidence, intrinsic or extrinsic, cannot be disregarded but must control the decision of the court and jury, unless there is such an inherent improbability in the statements of the witness as to induce the court or jury to disregard his evidence even in the absence of any direct conflicting testimony. Neither court nor jury can wilfully and capriciously disregard such testimony. (Larson v. Glos, 235 Ill 584.) It therefore becomes necessary for the court to consider all the competent evidence, direct and circumstantial, . . .”

The majority opinion does not disagree with that rule. It further mentions People v. Miller, 23 Ill App2d 352, 163 NE2d 206, where the court has cited People v. Skelly, supra. In Miller the court reversed the judgment on the basis that there was corroborative testimony of the defendant which was not contradicted and that there was nothing in the record which would indicate that the testimony was inherently improbable.

In People v. Dougard, 16 Ill2d 603, 158 NE2d 596, the court said at page 607:

“While circumstantial evidence is legal evidence, yet to warrant a conviction on such evidence the facts proved must so thoroughly establish the guilt of the person accused as to exclude every reasonable hypothesis of his innocence. Although this court is committed to the doctrine that the jurors are the judges of the weight of the evidence in criminal cases, yet we will not hesitate to reverse a judgment of conviction resting upon circumstantial evidence that raises little more than a suspicion against the accused, and leaves a grave and serious doubt of his guilt. People v. Burgard, 377 Ill 322; People v. Christocakos, 357 Ill 599.”

In People v. Barnes, 34 Ill App2d 238, 180 NE2d 509 (Abst.), the defendant had consumed a considerable amount of whisky and got into a car with his secretary, a Mrs. Hogan. She testified that she was driving the car when it skidded on a wet street and hit a telephone pole, and that traffic police arrived soon afterwards. The defendant, Barnes, also testified that Mrs. Hogan was driving when the car stopped after hitting the pole, and that Barnes moved into the driver’s seat to try to straighten the wheel. Mrs. Hogan also testified to his moving into the driver’s seat for that purpose. The police officers stated that their testimony that the defendant was driving was based on the fact that he was sitting behind the wheel when they arrived, and that no explanation was given to them at that time for the defendant’s presence behind the wheel.

The court then discussed the second element of the corpus delicti — that the defendant was driving — and stated that the observation of the defendant in the act of driving is not an indispensable prerequisite for conviction, provided that the act of driving while under the influence of intoxicating liquor is established by other credible and substantial evidence, either direct or circumstantial. The court further said the defendant’s driving must be grounded on certain circumstance that he was behind the wheel when the officers arrived, and stated:

“Circumstantial evidence is legal evidence, ‘yet to warrant a conviction on such evidence the facts proved must so thoroughly establish the guilt of the person accused as to exclude every reasonable hypothesis of his innocence.’ People v. Richardson, 21 Ill2d 435 at 438, . . .

“In this state of the record, ‘it is the duty of this court to resolve all facts and circumstances in evidence on the theory of innocence rather than guilt if that reasonably may be done, and where the entire record leaves us, as this one does, with grave and substantial doubt of the guilt of the defendant, we will not hesitate to reverse the judgment.’ People v. Dougard, 16 Ill2d 608 at 607, . . .”

The court reversed the judgment.

In the majority opinion it is argued that it is inherently improbable that a husband whose wife had just driven his car into a ditch and left him there at 2:00 a. m. would not have mentioned the incident to an investigating officer, either at the scene or in conversations at the police station. However, it must be noted that the testimony of the officer was that the defendant was intoxicated; that his attitude was “talkative, insulting and cocky; unusual actions consisted of defendant laughing; his speech was mumbled and mush-mouthed; . . .” and that he laughed at questions which were asked of him and made insulting remarks to the arresting officers. This apparently was the observation of the police officer when he made the arrest and when he later took the defendant to the police station. To hold that it is inherently improbable that a man in the condition of the defendant would fail to mention the fact that his wife had driven the car is going quite far.

In support of this contention the majority opinion cites Carroll v. Krause, 295 Ill App 552, 15 NE2d 323, which case is not controlling since it was a question of a decision being made by the court as to conflicting evidence.

The majority opinion also points out that the rule in a civil case is that a motor vehicle is presumed to have been driven by its owner, and in support cites two civil cases. I have not found a criminal case where that rule is applied and do not believe it should be applied in anything but civil cases.

The opinion relies upon People v. Gamier, 20 Ill App2d 492, 156 NE2d 613, in which case the court affirmed the conviction of defendant for driving a motor vehicle while under the influence of intoxicating liquor. The defendant in that case was arrested for illegal parking and was taken to the police station where he was found to be intoxicated. He testified that he had been drinking for about eight hours and felt capable of driving the car; he did not explain how his car got from the place where he had been drinking to the place where it was found by the police. The defendant never denied driving. Mr. Justice Kiley wrote a dissenting opinion in that case in which he distinguished People v. Falkenberg, 5 Ill App2d 578, 126 NE2d 408, upon which case the Garnier majority opinion relied, inasmuch as in Falkenberg there was an admission by the defendant that he had just hit a car.

At the time the instant case went to trial the only proof of corpus delicti was that the defendant, in an intoxicated condition, was found in the vicinity of the wrecked car, plus his statement that he was the “owner and driver” of the car. With reference to the confession or admission the court should have taken into consideration the fact of his intoxicated condition at the time the statement was made. Without the statement there would be no evidence whatsoever to convict the defendant. The only thing proved was that a car was in a ditch and that the defendant, in an intoxicated condition, was found in the vicinity of the car.

In People v. Lueder, supra, the court said at page 489:

“When the prosecution rested its case against plaintiff in error in this proceeding, the only evidence independent of the confession was the testimony of Thomas that a cemetery building had been gutted by fire and that plaintiff in error was a cemetery employee at the time. Inasmuch as the corpus delicti consists of two elements: (1) That a certain result occurred, in this case the burning of a building; and (2) that some person is criminally responsible for the act, (Carlton v. People, 150 Ill 181; 14 Am Jur, Criminal Law, sec 6,) it may be seen that the independent evidence tends to establish only that a building burned. There is nothing, save the confession alone, which suggests or tends to corroborate the element that some person wilfully fired the building. Therefore, in the absence of any evidence independent of the confession clearly showing a crime to have been committed by some person and in the further absence of evidence of other facts or circumstances so fully corroborating the confession as to show the commission of the offense beyond a reasonable doubt, the rule that the corpus delicti cannot be proved by the confession of a defendant alone must be applied.”

In the case before us, without the confession, the only evidence of the corpus delicti is the fact that a car was found in the ditch. Outside of the admission or confession of the defendant, there is no evidence at all that at the time the car went into the ditch it was driven by an intoxicated person.

The judgment of the Circuit Court should be reversed.

       Since no verbatim transcript was available, the Report of Proceedings was prepared pursuant to Supreme Court Rule 36-1(3) (c). 29 Ill2d XI-XII, now Rule 323(c), ch 110A, § 323(c). Defendant raises no proper issue concerning the accuracy of the Report of Proceedings.


author: MR. JUSTICE MURPHY

text:
    Lillian Borowicz, Jerry Borowicz, a Minor, by Gustave Borowicz, His Father and Next Friend, Catherine McCarthy and Lillian Borowicz, Administrator of the Estate of John McCarthy, Deceased, Plaintiffs-Appellees, v. Seuring Transit Company, Inc., a Corporation, and Paul Wright, Defendants-Appellants.
    Gen. No. 51,914.
    First District, First Division.
    June 24,1968.

      Irvin Tischer, of Chicago (Sidney Z. Karasik, of counsel) , for appellant.
    Blumenthal and Schwartz, of Chicago (Milton M. Blumenthal and Arthur F. Schwartz, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action by the driver and passengers of an automobile that was struck in the rear by a tractor-trailer being driven by defendant Paul Wright for defendant Seuring Transit Company, Inc. The plaintiffs include Lillian Borowicz, who was driving her husband’s automobile, and Catherine McCarthy, her mother, John McCarthy, her father, and Jerry Borowicz, her minor son. The occurrence took place on the evening of January 22, 1964.

The jury returned verdicts in favor of all plaintiffs. The primary reason for defendants’ appeal is the $33,000 award in favor of Mrs. Borowicz, which defendants charge was grossly excessive.

Defendants’ other contentions on appeal are: (1) The testimony of Dr. Lucatorto of alleged pathology shown on the X rays, interpreted for him in a written report of an unidentified roentgenologist, which report was not produced in evidence, was incompetent as hearsay, and should have been stricken. (2) A patient’s history and statement of subjective complaints, given to an examining physician for the purpose of testifying, is incompetent evidence, and it was error to admit Dr. Smith’s testimony on these matters on the pretext that he was a “treating” physician. (3) Defendants were prejudiced by the arbitrary curtailment of their examination of their medical witnesses and in not permitting defendants’ exhibit 6 (a medical record) to go to the jury room.

Mrs. Borowicz testified that immediately after the occurrence, she experienced pains and stiffening in her neck; her back, left shoulder, left thigh and knee hurt, and she had bruises on her right hand. After a night of pain, she consulted with Dr. Lucatorto on January 23, 1964, the day after the occurrence. She was hospitalized for six days, where she was in bed traction for 22 hours a day and was not allowed to sit up. She received medication and diathermy treatments. When discharged from the hospital she felt no improvement in her condition. She was fitted for a surgical collar — “A surgical collar is a brace like I am wearing now.” She continued under the care of Dr. Lucatorto and went to his office two or three times a week, receiving heat treatments and medication. Traction equipment was purchased for home use, and she used it at home almost every day for approximately six hours. She had seen Dr. Leonard Smith, “an orthopedic man,” twice — in October of 1964 and on June 7, 1966, during the trial. She also received treatment at the Schmitz Medical Group — “I went there for a physical because of my back and to make sure nothing else was hurting. He didn’t find any other problems.” At the time of the trial Mrs. Borowicz was still troubled by pain in her neck and shoulder.

Dr. Vito Lucatorto testified at length on behalf of the plaintiffs. He had been a physician and surgeon since 1938 and was engaged in general practice. Mrs. Borowicz came to his office on January 23, 1964, the day following the occurrence, and he had occasion to observe and treat her. He noticed there was limitation of motion in the head and neck, and that she experienced pain and tenderness over the paravertebral muscle in the cervical region. The neck muscles were in spasm and were hard and tender. She had bruise marks on her left shoulder, left thigh and left knee. He ordered X rays taken of her left shoulder, cervical spine and ribs. These X rays were identified by him and were admitted into evidence. He used them in his testimony. On the basis of the X-ray films and clinical examination of the patient, he made a diagnosis that Mrs. Borowicz was suffering a subluxation of the fourth vertebra over the fifth, and in addition there had been both ligamental and muscular injury to the neck; that a torn ligament or muscle heals with scar tissue which does not have the strength of the original tissue. He also identified other X rays taken of Mrs. Borowicz, which were received in evidence.

Dr. Lucatorto saw Mrs. Borowicz fifty times, the last time being on June 6, 1966 (during trial). Her remaining complaint was pain in the neck, some numbness of the left hand, and of feeling dizzy and faint after making any sudden movement toward the left. It was his opinion that the subluxation in Mrs. Borowicz’s neck, the numbness and paresthesia of her left hand, the spasm of the muscles of the neck and the other conditions of ill-being which he found as recently as June 6, 1966, were permanent, and she would require treatment for an indefinite period of time.

On cross-examination, Dr. Lucatorto testified that he was a general practitioner and not an expert at reading X rays, although he had been taught to read them in his medical training and read many in the course of his practice. Dr. Lucatorto stated: “The degree of subluxation is determined by the X-ray picture itself. I was able to determine the degree of subluxation in Mrs. Borowicz from the pictures. According to the X-rays it was very evident that the fourth cervical vertebra was pushed forward to the anterior border of the fifth cervical vertebra, its neighboring vertebra below. I would say it was moderate at the beginning.”

Defendants then identified certain of their own X-ray exhibits and requested Dr. Lucatorto to read them. He asked to be allowed to read the report of the roentgenologist who made the X-ray pictures. When his request was refused, he said: “But this gives the wrong impression. I am not posing here as a recognized roentgenologist. I am a general practitioner. I am guided by the roentgenologist. If they tell me it is subluxation or possible trauma of recent origin, I believe them. Your questions are unfair.” At this point the defendants’ counsel stated to the court: “Your Honor, this testimony has all been hearsay.” Thereafter, out of the hearing of the jury, defendants asked for a mistrial because of the witness’ remark characterizing the defendants’ questions as unfair. The motion for a mistrial was denied. The jury was instructed to disregard the remark.

On cross-examination later, Dr. Lucatorto stated his testimony on the X rays of Lillian Borowicz and Catherine McCarthy was based on written reports from the roentgenologist who took the X rays and placed the red marks on the X rays of Mrs. Borowicz for identification purposes. He could read the X rays without the red marks. Dr. Lucatorto could read X rays to a “certain extent. In other words my knowledge of X-ray reading is sufficient. I knew enough about it. I am not an expert on it, but certain things I know.”

After further cross-examination as to the X-ray reports, counsel for plaintiffs stated: “I respectfully submit the witness testified he has the roentgenologist’s report in writing which he is prepared to produce.” Counsel for the defendants replied: “I don’t want to see them. . . . They are not in evidence, they can’t go in evidence.” Also, Dr. Lucatorto said: “I merely was stating the X-ray report of the roentgenologist. . . . This is the roentgenologist’s opinion.” Counsel for defendants then said: “It is not yours, is that right, sir?” At this point the court said: “Is it yours or not, Doctor? . . . After looking at it, is it your opinion?”, and Dr. Lucatorto replied: “It is mine also.”

Considered first is defendants’ contention that the testimony of Dr. Lucatorto of the alleged pathology shown on the X rays was hearsay and should have been excluded because it was the mere recitation by him of the findings contained in a written report of an unidentified roentgenologist, which report was used extensively in his testimony and was not introduced into evidence.

Defendants argue that although Dr. Lucatorto professed some competence in the reading of X rays, the record demonstrates “that he was almost entirely dependent upon the non-present roentgenologist for the conclusions that he gave at the trial — even to the extent of requiring a red mark on the X-rays to assist him in locating the alleged pathology.” Defendants’ authorities on this point include an article in 54 IBJ, p 910, headed “The Consulting Specialist: A Necessary or Unnecessary Witness ?” (June 1966.) There it is said: “The Smith exception to the Hearsay Rule [46 Ill App2d 117] should be available in all cases where (1) the physician takes an active role in the examination and testing conducted by the specialist, (2) the physician personally diagnoses the ailment, or concurs in the specialist’s diagnosis, (3) the physician does not merely read from the report of the consultant, and (4) the tests and the reports which are the basis of the diagnosis are admitted in evidence.”

Defendants argue that the testimony of Dr. Lucatorto did not meet these guidelines, and that element (4) (the X-ray reports) definitely is not present.

Plaintiffs contend that Dr. Lucatorto read the X rays on direct examination and gave his medical interpretation of them. “The fact that he was assisted by the report of the roentgenologist in arriving at his conclusions did not make his testimony inadmissible. The X-rays were in evidence and counsel for the Defendants had the opportunity to cross-examine the doctor on his findings and to dispute and question his diagnosis.”

Although Dr. Lucatorto used the written X-ray reports of the roentgenologist in describing the pathology revealed by the X rays, defendants’ counsel rejected the offer to produce the reports. This was sufficient, and plaintiffs were not required to offer the reports in evidence. The record also shows that Dr. Lucatorto’s X-ray diagnosis of Mrs. Borowicz’s cervical spine was confirmed by Dr. Leonard Smith, who testified for the plaintiffs, and by defendants’ medical witness, Dr. John C. Thill. If the X rays in evidence had not supported Dr. Lucatorto’s testimony, defendants’ witnesses would have contradicted him.

We conclude that the testimony of Dr. Lucatorto as to the cervical area pathology of Mrs. Borowicz, as revealed by the X rays in evidence, comes within the guidelines of Smith v. Broscheid, 46 Ill App2d 117, 124, 196 NE2d 380 (1964), and Hickey v. Chicago Transit Authority, 52 Ill App2d 132, 139, 201 NE2d 742 (1964). No error was committed in permitting the X-ray testimony of Dr. Lucatorto to stand.

Defendants’ next contention concerns the testimony of Dr. Leonard R. Smith, a specialist in orthopedic surgery, who examined Mrs. Borowicz twice — on October 9, 1964, and during the trial on June 7,1966.

Dr. Smith testified that on October 9, 1964, he took “a clinical history” from Mrs. Borowicz and also performed “an objective examination.” Over objection he recited the history of the occurrence as related to him by Mrs. Borowicz. From a physical examination of Mrs. Borowicz and use of X rays, he made a diagnosis that she had incurred “a hyperextension, hyperflexion injury involving the cervical spine. That means, designates the direction or force of the type of injury; with the head being thrown back, that is hyperextension; and flexion, there is a tearing of the ligaments and muscles— particularly the posterior ligaments at C-4, C-5 — which prevent the vertebrae from shifting. So, as a result of the tearing of the ligament — this level, the vertebra was thrown, pushed forward, producing the subluxation of C-4 upon C-5 — this produces the narrowing of the posterior intervertebral foramen, with resulting impingement on the nerve roots — C-5, particularly on the left. There is also, of course, attendant soft tissue injuries of the muscles and other ligaments; but, this primarily is the basic injury.”

At the October 1964 examination, Dr. Smith “reviewed what had been done before” and recommended the use of a “Jackson cervical pillow at night — which would immobolize the neck at night — rather than using a collar, which is extremely uncomfortable to sleep with.”

The June 7, 1966, examination of Mrs. Borowicz consisted of “obtaining a history and objective examination, and radiographic examination or X-ray examination.” Over objection he was permitted to testify “what the examination disclosed, both subjectively and objectively.” With the exception of the additional complaint of “some lightheadedness and occasional dizziness” and “the fact that the limitation of motion and extension was now twenty degrees as compared to ten degrees before, indicating the progression of the limitation and extension,” the findings were essentially the same as those reported on October 9, 1964. In his opinion there was a causal connection between the subluxation and the seizures of lightheadedness and dizziness. Over objections, the doctor was permitted to give the reasons for his opinion.

On June 7, 1966, Dr. Smith prescribed treatment for Mrs. Borowicz, “Simply that she continue doing what she has been doing in the past, that also, in the future, if her symptoms persist, then it may be necessary to fuse these vertebra. ... To continue with the collar, to continue with the cervical pillow, to continue with the traction, to apply heat, to get additional physical therapy whenever the muscle spasm increases, to take appropriate medication for the relief of pain and muscle spasm whenever it reoccurs.” On cross-examination, it was his opinion that “the physical condition of Lillian Borowicz which I have described is permanent. The reason for my opinion is the nature of the injury, the length of time which has elapsed since the injury and the present findings.”

Defendants contend that it was error to admit Dr. Smith’s testimony on Mrs. Borowicz’s history and statement of subjective complaints. Defendants assert that if a physician “is only an examining doctor he is permitted to testify only as to his objective findings and may not mention the patient’s subjective complaints or history of accident.” Defendants cite Jensen v. Elgin, J. & E. Ry. Co., 24 Ill2d 383, 182 NE2d 211 (1962), where it is said (p 388):

“Statements of pain and symptoms are admissible as an exception to the hearsay rule, if made by a patient to a physician for purpose of diagnosis and treatment, on the theory that the desire for proper treatment outweighs any motive to falsify. . . . Since the cause of an injury may be a factor in diagnosis, statements of the cause of an injury or condition have been held admissible because they also fall within the guarantee of truthfulness. . . . Evidence of statements and physical demonstration capable of simulation are not admissible, however, if made to a physician examining for the purpose of testifying, and he is limited to testifying to purely objective conditions.”

Plaintiffs argue that Dr. Smith was a treating physician because he recommended the use of the Jackson surgical pillow, and that his testimony was therefore an exception to the hearsay rule. Plaintiffs cite Jurney v. Lebeznik, 72 Ill App2d 117, 218 NE2d 799 (1966), where there was a recommendation of a shoe lift by the examining physician.

It is our opinion that there may be a serious question as to whether Dr. Smith should have been considered a “treating physician” here. However, there was no dispute as to the facts of the collision, and his testimony of plaintiff’s subjective symptoms added very little to the evidence properly in the record. We find no prejudicial error here.

Defendants also assert that it was error to permit Dr. Smith to read into the record the history and subjective complaints of Mrs. Borowicz from his personal notes, which were not identified or introduced into evidence. The record indicates that, although defendants moved to strike this part of Dr. Smith’s testimony, no specific objection was made to his use of his notes. In the absence of a proper objection, we consider this point waived.

We consider next defendants’ contention that defendants were prejudiced by the arbitrary curtailment of their examination of their medical witnesses and in not permitting defendants’ exhibit 6 to go to the jury room.

Three members of the Schmitz Medical Group were called as witnesses by the defendants — Dr. Peter Nelson, a cancer specialist, and Charles J. Smith and William Gordon, gynecologists and specialists in medical problems peculiar to women. Mrs. Borowicz was treated from time to time by the Group for conditions not related to the occurrence. On April 7,1964, she was treated for varicose veins. Parts of her body involved in her occurrence complaints were the subject of entries in her medical record (defendants’ exhibit 6). The three doctors were permitted to testify freely as to their personal findings. Defendants’ counsel sought to examine the three doctors about entries and symbols on exhibit 6. There were seven doctors at the clinic and notations were made on exhibit 6 by the doctor who administered the treatment. Some of the handwriting was not identified. The court properly sustained objections to questions which sought evidence which was immaterial, irrelevant or improper. We find defendants’ contention of curtailment of the examination of these witnesses to be without merit.

Defendants argue that the court’s denial of defendants’ request to send defendants’ exhibit 6 to the jury room was unreasonable and arbitrary and an abuse of the court’s discretion. Defendants assert that “the appearance of a zero ‘0’ after ‘neck’ in the entry of April 7, 1964 was of great probative significance, and the jury should have been permitted to visualize that entry.” We find no merit in this contention. In our opinion, it would have been improper and fundamentally unfair to Mrs. Borowicz to permit exhibit 6 to go to the jury in this case.

Defendants also contend that the examination of Dr. John C. Thill was limited. Dr. Thill examined Mrs. Borowicz at the request of defendants on January 5, 1966, and he took her history. Dr. Thill testified at length as to his examination of Mrs. Borowicz and observed some limitation of neck movements. X-ray films were taken by Dr. Hussey, a roentgenologist. Both doctors read the X rays. There was a forward displacement of the fourth cervical vertebra in relation to the fifth, and Dr. Thill classified it as a very “slight subluxation,” and he could not tell whether it was an old or new one. Objections were sustained to questions involving soft tissues, “tearing of ligaments,” and other conditions not observable from the X-ray films. We find no abuse of discretion in the court’s ruling here.

Finally, defendants contend that the $33,000 award for injuries to Mrs. Borowicz was grossly excessive, especially since she sustained no loss of past or future earnings and her special damages were approximately $900.

At the time of the occurrence, Mrs. Borowicz was 48 years of age and had a life expectancy of 27.7 years. She testified that since the occurrence she was unable to “iron, wash, scrub or do heavy work. I hire somebody to do this work.” Also, she was unable to swim, bowl, gqlf and dance, all of which she had done formerly. She had become highly irritable, she felt like an invalid. The medical testimony showed that the condition of her neck and left hand were permanent, and that she would require treatment for an indefinite period of time.

Although it is true that the verdict for Mrs. Borowicz is large in comparison to her expenses, the assessment of damages is the preeminent function of the jury. Each verdict for a personal injury must be examined in the light of the particular injury involved, and the record should be examined to determine whether the amount of the verdict is so large as to indicate passion and prejudice. Considering the medical testimony and plaintiff’s testimony of pain and suffering and her life expectancy, we think the verdict is within the scope of the evidence. It is not so clearly excessive as to require this court to disturb it. Lau v. West Towns Bus Co., 16 Ill2d 442, 452, 158 NE2d 63 (1959); Smith v. Broscheid, 46 Ill App2d 117,126,196 NE2d 380.

We conclude the instant trial was free from prejudicial trial errors, and for the reasons given the judgment is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Gaulden, Defendant-Appellant.
    Gen. No. 51,917. (Abstract of Decision.)
    First District, Second Division.
    July 9, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (George C. Rantis and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by PRESIDING

JUSTICE BURKE.

Not to be published in full.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. O. C. Powell, Defendant-Appellant.
    Gen. No. 51,925.
    First District, Fourth Division.
    September 11,1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward Stasukaitis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Charge : Murder.

Defense at Trial: Justifiable use of force in defense of person.

Judgment: At a jury trial the defendant was found guilty and was sentenced to the penitentiary for a term of 14 to 25 years.

Points Raised on Appeal :

1) Prejudicial error occurred when the court prevented defense counsel from impeaching a prosecution witness.

2) Reversible error occurred when the prosecutor turned over witness statements and police reports in front of the jury.

Evidence : Testimony of State’s witnesses.

Dorothy Terrell testified that on July 25, 1965, she was living with her sister at 4729 South Indiana Avenue; that she had known the deceased, James R. Guynes, for several years, and had gone with him to another sister’s home at 215 East 47th Street on the evening of July 25, about 7:00 o’clock. She stated that she sat on the rear porch of the second-floor apartment, drinking with several other persons, among whom was the defendant, O. C. Powell, who she said was her cousin. She said the deceased had not joined the group on the porch, but remained in the parking lot playing with the children.

The witness testified that after they had been on the porch for about an hour the defendant went to his room, saying he was going to bed. His room at the rear of the apartment had a screened window which overlooked the porch and could be entered through the kitchen. The witness further testified that the deceased came up the stairs, stopped on the third step, and asked if she was ready to leave. At that time she heard a noise which sounded like a firecracker, and she saw the deceased grasp the stair rail and fall forward with blood coming from his mouth. She saw a hole in the back of his shirt where he had been shot. She then ran out and stopped a squad car to report the shooting.

Dorothy Terrell further testified that about eight days prior to the shooting she and the deceased had come to the 47th Street apartment looking for her son who had run away from them in the park. When they found him in bed in the apartment, the deceased questioned him about running away; the defendant came out of his room and quarreled with them about chastising the boy, and threatened the deceased with a gun, saying he would “blow his brains out” if he didn’t leave. The witness and the deceased then left.

On cross-examination the defense counsel asked the witness whether or not she was living or had lived with the deceased at 51st and Michigan; an objection was sustained by the court. Counsel then said he wanted to ask her if she had ever lived at that address or if she had ever told anyone she lived with the deceased. The court sustained objections to these questions.

Marguerite Kimble, who rented a room of her apartment to the defendant, corroborated the testimony of Dorothy Terrell. She stated that she had put a second screen over the broken one on defendant’s window, and when she had occasion to look at the screen later that night she saw a little hole in it, which was stipulated to be a half inch to an inch in size. She further testified that she knew there had been an argument between the deceased and the defendant about eight or ten days before.

The cause of deceased’s death was pronounced by the physician to be a gunshot wound of the right lung.

Terry Tereno, who was also on the porch of the 47th Street apartment on the night in question, testified that he saw the defendant go into his room; that he later saw the deceased come up the stairs as he was going down; that when he was several steps from the porch he heard a cracking sound, looked up and saw the deceased lying on the banister, with blood coming from his mouth.

The police officers testified that they had found a person lying face down on the stairway with a wound in his back, and that they observed the window and the small hole in the screen.

Testimony of the defendant.

O. C. Powell testified that he had rented a room on the second floor of the premises in question; that on the evening of July 25, 1965, he was on the porch there. He stated that he had had an argument with the deceased eight or ten days before the occurrence; that when they had come in looking for Dorothy Terrell’s son he told them that Marguerite Kimble had said to tell them not to say anything to the boy that night; that the deceased told him he couldn’t tell Dorothy what to do, and that they had been looking for the child for some time. They continued arguing, and the deceased said he heard the defendant had a pistol, and that if he thought he did have he would take it and throw him out the window. The defendant testified that at the time he had no pistol in his hand. He stated that he saw the deceased on July 25; that he had gone to bed early and had not stayed on the porch with the others; that he was awakened by a sound at the window and could see the legs of a man standing there; that the man was pulling at the window. He said he went to the window with his gun in his hand and raised the shade, at which time the deceased jumped back and turned, and the defendant shot the gun, hitting the deceased in the back.

On cross-examination the defendant denied that on the evening of July 25, 1965, he sat on the porch with the others, stating that he went to bed about 7:00 p. m. He reiterated that when he was awakened he went to the dresser, got his gun, and went to the window; that he did not know what time it was; that at the time he fired the gun the deceased was right in front of the window; that he had not waited until the deceased was on the stairs. He testified that the distance between the banister and the window would be about four or five feet. The defendant testified that he knew the deceased had no gun in his hand; that nothing was said between them; that when he had opened the shade the deceased turned and he shot him; that “it was during the spirit of the moment and I was excited.” He stated that he did not see the deceased fall; that he knew he had shot him in the back, and that he had meant to pull the trigger of the gun.

The defendant stated that as soon as he fired the shot he put on his clothes and went out the front door, taking the gun with him; that he met a man at 31st Street who let him have $3 for the gun, and he then took a cab to his sister’s. When asked why he left in such a hurry he said he got excited; that he didn’t know he had killed the deceased, but did know that he was in trouble. He stated that he went to his sister’s house and did not call the police, but was waiting to get some money to go to his brother’s home in Memphis, Tennessee.

Opinion: The defendant argues that the court committed reversible error when he was not permitted to impeach the witness, Dorothy Terrell, who had testified that she was present when the deceased and the defendant had an argument and that the defendant had threatened the deceased. Defendant’s counsel attempted to impeach the witness by showing that she made a statement to the police that she lived with the deceased. The court refused to permit that evidence in the record. The purpose of impeachment could only be to throw doubt upon the statement of Dorothy Terrell as to the original quarrel she testified the defendant had with the deceased and that he had threatened the deceased at that time.

If we consider that the court erroneously ruled in excluding the impeaching evidence, nevertheless it was not reversible error, since the defendant admitted having had a quarrel with the deceased, and there was further testimony that there had been an argument between the deceased and the defendant about eight or ten days before.

In People v. Armstrong, 22 Ill2d 420, 424, (cited with approval in People v. Helm, 40 Ill2d 39, 237 NE2d 433), the court said:

“It is not our policy to reverse a judgment of conviction merely because error has been committed, unless it appears that real justice has been denied or that the verdict of the jury may have resulted from such error.”

The question before a reviewing court is to determine whether the accused has had a fair trial, and whether his conviction is based upon evidence establishing his guilt beyond a reasonable doubt. People v. Davis, 10 Ill2d 430, 140 NE2d 675. In the instant case the defendant had a fair trial and was properly convicted by evidence establishing his guilt beyond a reasonable doubt.

The cases cited by the defendant are not in point.

In the case before us the defendant fired at the deceased and said he meant to pull the trigger when the deceased was standing unarmed directly in front of his window. Under all the circumstances of the case the ruling of the court refusing to admit the impeaching evidence was not reversible error.

The defendant also argues that the court was in error in allowing the State’s Attorney to turn over witnesses’ statements and police reports in front of the jury. At the time Dorothy Terrell was on the stand on cross-examination, counsel for defendant asked her if she had given a written statement to the police in connection with the investigation, and she said she had. The following colloquy occurred:

“Mr. Smith [defense attorney] : Your Honor, at this time I would ask leave of Court—

“The Court: Yes. Do you have a statement? Give it to him.

“Mr. Oplatka [State’s Attorney] : May the record reflect at this time the State is tendering a copy of this statement made by Miss Terrell to counsel.

“Mr. Smith: May I have a moment to review it ?

“The Court: Sure.”

In People v. Bickham, 91 Ill App2d 465, 235 NE2d 400, the defense counsel had demanded a copy of a statement of a witness before the Grand Jury. In the presence of the jury the State’s Attorney said he would turn over the exhibit, upon which the attorney for defendant said, “Acknowledge receipt of the same. Thank you, Mr. Nellis.” No objection was made by defense. The court held that the giving of the document by the State’s Attorney to the defendant in the presence of the jury, under such circumstances, was not reversible error. Nor was the court’s ruling in the instant case reversible error.

The defendant had a fair trial and was convicted beyond a reasonable doubt. No reversible error occurred in the trial of the case.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.

      Ill Rev Stats 1965, c 38, §9-1 (a): A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
      (1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
      (2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; . . .

       Ill Rev Stats 1965, c 38, § 7-1. A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.


author: MR. PRESIDING JUSTICE SMITH

text:
    James Groves and Betty Taylor, Plaintiffs-Appellants, v. Joseph H. Sebastian, Defendant-Appellee.
    Gen. No. 51,948.
    First District.
    July 8, 1968.

      Sidney J. Sexner, of Chicago (Harry C. Erdos, Sidney J. Sexner, E. Randall Beider, and Seymour H. Persky, of counsel), for appellants.
    Ernest K. Koehler, of Chicago (Robert E. Gordon, of counsel), for appellee.
   MR. PRESIDING JUSTICE SMITH

delivered the opinion of the court.

The case was at issue. The defendant was defaulted for nonappearance at pretrial conferences. Plaintiffs proved up their damages arising from an automobile accident and judgment was entered in favor of the plaintiff-Groves for $2,500 and in favor of the plaintiff-Taylor for $1,500 on jury verdicts. Defendant filed its petition under CPA § 72, Ill Rev Stats 1965, c 110, § 72. Plaintiffs answered the petition. The trial court allowed the petition, vacated the judgments and plaintiffs appeal.

The case was set for pretrial hearing on March 8, 1966. Plaintiffs appeared; defendant didn’t. It was reset on March 28, 1966. Plaintiffs appeared; defendant didn’t. The case was set for proof of damages before a jury for April 22. There being no jury available at that time, it was continued to May 20. Prove-up of damages was then made before a jury resulting in the judgments. Garnishee summons was served August 4 on defendant’s insurance carrier returnable August 25. Insurance Company defaulted. Conditional judgment was entered against the garnishee on August 25 by default. It moved to set aside the conditional judgment on September 1 and it was vacated and the garnishee granted leave to answer. It filed an answer of “no funds.” On September 22, garnishee appeared and presented a petition to vacate the judgments entered on May 20. The trial court allowed the petition, vacated the judgments and in so doing stated “these motions are directed to the equity powers of the court and to the conscience of the court. And I could not in good conscience let a $4,000 judgment stand in this case where there is a soft-tissue injury and about $300 or $400 out of pocket.” This appeal is from this order.

It appears that the defendant’s law firm moved their offices in October 1964, and testified that they received no actual notice of the March 8 or March 28 pretrial conference. They further stated that when they moved to their new location they had a mass mailing to the courts and adversaries of the change of address. It further appears that the original file in this case was misplaced and was originally restored at plaintiffs’ request around August 1. The clerk of the court testified that notice of the March 8 and 28 settings was mailed to both counsel. Plaintiffs’ counsel received his notice and appeared. The garnishment summons was served on August 4, and a few days later plaintiffs’ attorney received a call from someone purporting to represent the law office of the defendant and full information was then given. The return date of the garnishment was August 25, 1966. At that time no one appeared for garnishee and the conditional judgment was entered. On August 26, notice of a motion to confirm the conditional judgment on September 1 was mailed. Defendant-garnishee appeared and requested that the conditional judgment be vacated and it be permitted to answer. The motion was allowed and answer of “no funds” filed. On September 21, plaintiffs’ attorney received a notice and a copy of the petition under CPA § 72 to vacate the original judgments.

The same attorneys appeared for the defendant in the original suit and as attorneys for the insurance company in the garnishment action. In the recent case of Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 467, 236 NE2d 719, 720, the court states:

“Section 72 of the Civil Practice Act substitutes a simple remedy by petition for various forms of post-trial relief and enables a party to bring before the court rendering a judgment matters of fact which, if known to the court at the time judgment was entered, would have prevented its rendition. (Citing cases.) . . . The burden is upon the petitioner under section 72 to allege and prove the facts justifying relief.”

In Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348, it is clear that a petition filed under section 72 invokes the equitable powers of a court as justice and fundamental fairness require to the end that no one may enforce a default judgment attended by unfair, unreasonable or unconscionable circumstances. In Elfman, supra, it is to be noted that the plaintiff in proving up his default amended his complaint and sought recovery for medical expenses not related to the occurrence. This is patently inequitable and unjust and the court so held. In Widicus v. Southwestern Elec. Co-op., Inc., 26 Ill App2d 102, 167 NE2d 799, the court points out that justice will not be done if hasty defaults are allowed any more than justice will not be done if continuing delays are permitted. Under the facts in that case, the court held that the default should have been set aside as it worked only an injustice to the defendant without any corresponding proper benefit to the plaintiff.

There can be no doubt in this record but that the defendant-insurance company received its garnishee summons on August 4, and it was forty-nine days later before it instituted any action of any kind to set aside the original judgments. Indeed it even permitted a conditional judgment to go against it by default. Thus, forty-nine days elapsed without any action on its part after unquestioned knowledge of the existence of the May 20 judgments. We recognize as did the Supreme Court in Esczuk that the great volume of litigation in metropolitan centers imposes upon the courts and upon litigants the necessity for a reasonable accommodation in the matter of notices to the end that no one will be inequitably deprived of the right to be heard on any matter. There is nothing in this record suggesting that any fraud, mistake, fundamental unfairness or unconscionable behavior on the part of the plaintiffs or the court led to this default or tainted the judgments which typically proper section 72 relief requires.

In Elmwood Ford Motors, Inc. v. Mardegan, 42 Ill App2d 342, 192 NE2d 445, the petitioner delayed seventeen days after garnishment summons was served before filing his petition to vacate under CPA § 72. The trial court denied his petition. The Appellate Court held that the seventeen-day delay was not the diligence required by section 72 and affirmed. A like result should obtain here. The trial court should have denied the defendant’s petition to vacate. Even if the defendant did not actually receive the notices of the two pretrial conferences, it is apparent that reasonable diligence on his part would have disclosed the facts either before or after service of garnishee summons. Neither the file of the plaintiffs nor the restored court file disclosed any change of address notice. It seems strange that both of these as well as the March 8 and 28 notices would have gone astray.

Accordingly, the order vacating the judgments must be reversed and the cause remanded to the trial court with directions to vacate such order and reinstate the original judgments. It is so ordered.

Reversed and remanded with directions.

TRAPP and CRAVEN, JJ., concur.