text:
    People of the State of Illinois, Plaintiff-Appellee, v. Claude Eugene Gooch, Defendant-Appellant.
    Gen. No. 50,296.
    First District, First Division.
    April 25, 1966.

      Thomas J. Boodell, Jr., of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial, defendant was convicted of burglary and sentenced to the penitentiary for a term of one to three years. On appeal, defendant contends that the evidence did not establish his guilt beyond a reasonable doubt in that (1) identification of the defendant was weak and uncertain; (2) the evidence as to the nature of the premises and the alleged entry are confusing and unconvincing; and (3) the State has failed to prove the “intent to commit [the crime of] theft.” .

In substance, on the afternoon of September 4, 1964, four men ran out of an open door at the rear of an auto accessory store, and defendant was identified as being one of the four men. The door had been forcibly opened, and apparently nothing was taken. Nothing was found on the defendant. The second and third floors of the building were vacant and abandoned, and defendant was found on the third floor. He said he had been looking for a washroom and denied entering the store.

The principal witness for the State was Henry Poile, an employee of the Kedzie-Kane Alarm Company. He testified that on September 4,1964, he went to 2848 West Madison Street, a 3-story building, to answer an alarm signal. The alarm was about 3:24 p. m. The front of the first floor was occupied by an auto accessory store owned by Leonard Nathan. The rear of the first floor and the entire second and third floors were abandoned. Poile arrived at the building at 3:29 p. m. and pulled into an alley behind the building. As he started to leave his car, he saw four men run out of a door at the rear of the premises. The men ran upstairs at the rear to the second floor. He was approximately 30 feet away when he first observed the defendant, who was one of the four men. Defendant was the third man on the stairs. All four men entered the second floor. Poile then went to the open rear door to block the exit. Five minutes later, he saw the defendant in custody of the police and identified him as one of the men he saw earlier.

The store owner, Leonard Nathan, testified that at approximately 3:30 p. m., he received a call and went to his store. He went to the back and “saw that the building had been broken into in my portion of the premises; the door had been battered down and was broken down. . . . You could see the splinters that had been forcibly entered.” He did not keep an inventory, “but from the time that the place had been broken into until the time I had gotten there, there is not much that could have been taken.”

The arresting officer, Howard Blair, testified that he arrived at the premises at 3:35 p. m., and after a conversation with Poile, he went up the rear stairs to the second floor, then to the third floor, where he found the defendant in a bedroom, crouched in a corner. The second and third floors of the building were abandoned and completely dilapidated. Defendant said he had been to a washroom. The officer further testified there was no toilet in the area, nor any indication that defendant had used the premises for a washroom. On cross-examination, he testified he did not find the other three men. No stolen property was found on the defendant. After arresting the defendant, “I showed him to Mr. Poile and Mr. Nathan and Mr. Poile identified him as one of the men that had fled the scene as he arrived.” The officer saw no one leave the building after he arrived.

Defendant testified that on September 4, 1964, he had been working in a garage for “Fred Smith,” at 2748 West Madison, and at about 2:30 p. m., he went to a restaurant to get a hamburger. On his way back to Madison and California, he was going through an alley and his stomach was hurting. “And I just walked on down the alley and then I had to use a washroom, I remember this condemned building because my girl friend used to live up there, .... [T]here is a washroom on the third floor and then I went in the washroom and when I went in the washroom I do what I had to do and I got through and I was coming out I heard some noise, I got scared and I ran in the corner. . . . And then after I stooped down about three minutes later the police officer came up and told me to get up, I was under arrest. ... I heard something like somebody cracking glass or something.” He also said that prior to the time he saw Officer Blair, he had seen Poile when he (defendant) was standing on the back porch of the building for about 15 to 20 minutes. He did not see “any commotion going on on the first floor nor men running through the building,” and he was alone.

On cross-examination, he said that the back door of 2848 West Madison was open, and “I went to the first floor, then I came out the first floor and I went up to the second floor and then I came out of there and I went to the third floor,” and as to the plumbing facilities on the third floor, “the water wasn’t running.” He was in the toilet room about 20 minutes and recalled that while he was standing on the back porch, he saw a tall man standing by a red car.

In finding defendant guilty, the trial court expressed at length disbelief in defendant’s explanation as to why he was in the building, and remarked, “He went in the building originally to find a toilet but it took him fifteen minutes to find a toilet, stands on the porch and then he goes up in the building and he finally finds the toilet — I just don’t believe his story. . . . But this young man’s story is incredible, it’s incredible.”

Defendant argues that the evidence of the State is not of a convincing character and that there is reasonable doubt of the guilt of the defendant; that the identification was vague and uncertain; that the testimony was confusing as to where “the alleged break occurred,” and “the facts are such as to negate the specific intent to commit larceny.”

We are not persuaded that the identification of defendant was vague and uncertain. The identification of defendant by Poile was made on the premises, in daylight, and within a few minutes after the occurrence. He said that when the men ran out of the first floor, “I saw them come towards me, turn at a right angle and go up the stairs,” and defendant “was the third man on the stairs until the larger man behind him reached up and grabbed him, pulled him out of the way and went up ahead of him. So he was the last man then on those stairs.” He saw defendant’s face “just a matter of seconds. I saw four of them come up; I saw the side of his face as he was going up the stairs and then I saw him when the man behind him pulled him out of the way to get by.” Poile was then about 25 feet away. The identification by Poile, in addition to the arrest of defendant on the third floor of the premises, all within a short period of time, was sufficient proof of defendant’s identity as one of the four men who ran from the premises. Poile’s identification was positive, and it is not disputed that defendant was found in the building. The testimony of one witness alone, if it is positive and the witness credible, is sufficient to convict, even though the testimony is contradicted by the accused. People v. Cox, 22 Ill2d 534, 539, 177 NE2d 211 (1961).

Defendant further argues that “specific intent is an essential element of the crime of burglary and must be proved by the State. . . . there is grave doubt that any specific intent has been shown,” and cites in support People v. Hutchinson, 50 Ill App2d 238, 200 NE2d 416 (1964), and People v. Soznowski, 22 Ill2d 540, 177 NE2d 146 (1961).

We agree that “the intent to commit the crime of theft” was an essential element of the State’s case, to be proved beyond a reasonable doubt. The gravamen of the offense of burglary is the intent with which the building is entered. (People v. Myler, 374 Ill 72, 28 NE2d 83 (1940).) 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. Figgers, 23 Ill2d 516, 179 NE2d 626 (1962).) Intent may be inferred from the proved facts and circumstances (People v. Niksic, 385 Ill 479, 483, 53 NE2d 400 (1944)), but, it is essential to a conviction upon circumstantial evidence that the facts proved be not only consistent with the defendant’s guilt, but that they be inconsistent, upon any reasonable hypothesis, with his innocence. People v. Wilson, 400 Ill 461, 473, 81 NE2d 211 (1948).

The facts in the instant case are distinguishable from People v. Soznowski and People v. Hutchinson. In the Soznowski case, the defendant, “while in the apartment and without doing anything to indicate the purpose of theft, beat a sleeping woman until she awakened. This act in itself appears inconsistent with an attempt to steal.” In the Hutchinson case, the defendant in mid-afternoon, “overtly parked his own car, which bore his own license plates, directly in the rear of the home he entered, in full view of two men, without any apparent attempt at disguise, and then left the home in an orderly manner.” There, this court said (p 242):

“We believe these facts are sufficient to raise a reasonable doubt of the guilt of defendant and require the application of the ‘maxim of our law that where an act may be attributed to a criminal or to an innocent cause it will be attributed to the innocent cause rather than to the criminal one.’ ”

In the instant case, defendant, a mechanic employed in a neighborhood garage, was identified as one of four men who ran from an auto accessory store, the door of which had been battered down and forcibly entered. A few minutes later he was found crouched on the third floor of the same building, reached by a stairway, on which he was seen running.

In People v. Johnson, 28 Ill2d 441, 192 NE2d 864 (1963), the Supreme Court, in upholding a jury verdict for the conviction of burglary said (p 443):

“Intent must ordinarily be proved circumstantially, by inferences drawn from conduct appraised in its factual environment. We are of the opinion that in the absence of inconsistent circumstances, proof of unlawful breaking and entry into a building which contains personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary. Like other inferences, this one is grounded in human experience, which justifies the assumption that the unlawful entry was not purposeless, and, in the absence of other proof, indicates theft as the most likely purpose. This conclusion is supported by the decisions of other courts . . . .”

These pronouncements apply here. The “absence of other proof,” a believable reason for defendant’s being on the premises, indicates that theft was the most likely purpose. The credibility of witnesses and the weight to be given their testimony is for the trial court, who saw and heard the witnesses testify, and the trial court here resolved the conflict in testimony against the defendant by concluding that defendant’s explanation as to why he was found in the premises was “incredible.” In People v. Boney, 28 Ill2d 505, 192 NE2d 920 (1963), the court said (p 510):

“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, . . . unless the proof is so unsatisfactory as to justify a reasonable doubt of guilt.”

From our review of this record, we find that the defendant had a fair trial and his guilt of the crime of burglary was proved beyond a reasonable doubt.

The judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    William Henry, Administrator of the Estate of Donald A. Henry, Deceased, Plaintiff-Appellee, v. Metropolitan Life Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 50,654.
    First District, First Division.
    April 25, 1966.

      Peterson, Lowry, Rail, Barber & Ross, of Chicago (Owen Rail, J. Robert German and Peter M. Sfikas, of counsel), for appellant.
    John V. Evans, of Chicago, for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Defendant insurance company appeals from a $5,000 nonjury judgment against it, under a “death through accidental means” provision of a group policy. Defendant contends that the insured’s death resulted from his own aggression and was not accidental within the meaning of the policy.

The decedent, Donald A. Henry, as a United States Post Office employee, was covered under a group life insurance policy issued by defendant, which provided in part :

“ (B) Insurance for Death or Dismemberment by Accidental Means: — Upon receipt by the office of notice and satisfactory proof, as required herein, that any Employee, while insured hereunder for Insurance for Death or Dismemberment by Accidental Means, shall have sustained bodily injuries solely through violent, external and accidental means and within ninety days thereafter shall have suffered any of the losses specified in the Schedule of Losses of this subsection (B) as a direct result of such bodily injuries independently of all other causes, the Office shall pay, subject to the terms and limitations hereof, the amount of insurance specified for such loss in said Schedule, . . . .”

The insured died of a gunshot wound on April 12, 1959. He was 24 years of age and unmarried. Immediately prior to his death, he had been living in a common-law relationship with Hattie Moffitt. He had been a paratrooper in the United States Army, and he was “pretty close” to six feet tall and weighed 175 to 180 pounds. On the day of his death, Donald Henry and Hattie Moffitt went to the apartment of Mr. and Mrs. Horace Young, the parents of Hattie Moffitt. Young was about 60 years old, 5 feet, 81/2 inches tall and weighed about 168 pounds. An argument took place between Donald Henry and Hattie Moffitt in the bathroom, and during the course of the argument “he had a knife drawed on her, he was going to cut her throat. ... He had his hands around her body and a knife in his hand.”

From the other room, Horace Young shouted, “No, this don’t go in here, this is my apartment, this is my place, I don’t want this kind of stuff going on, you have to get out of here. Why don’t you go out and cool yourself and come back after you cool yourself off.” Donald Henry-then said, “No, I am not going until she goes.” Young opened the door, and Henry walked out and said, “Listen, I’m going down stairs and open my car and get my gun and I’m going to come up here and kill everybody in here and you’ll be jumping out these windows.”

Young testified, “When he [Henry] came back with the sawed off shotgun he said, ‘I am killing everybody here.’ My wife grabbed him at the door and there was scuffling at the door, you know, she was trying to hold him and he was trying to get back through the door, and my room was kind of off and I had a revolver in my drawer, and I seen them scuffling and she hollered. I got my gun out of the drawer and when I looked around like that, when he throwed her, by being an awkward woman she fell against the window and cut her arm. When she fell he was an open target, I just shot him. ... He had the gun, just I shot before he could get himself set to shoot me. . . . Well, when he throwed my wife, that throwed the gun towards that direction, that’s toward me. [The gun was] pointed right toward me, . . . and he said Tapa Young, I’m going to kill you.’ ... I shot in a hurry and tried to hit him first.”

The court sustained objections to plaintiff’s attempts to show that at the coroner’s inquest, Horace Young testified that he tried to shoot the gun out of the hand of Donald Henry, and that the death of the insured was accidental.

Corinne Young testified that “when he [Henry] came back . . . the first thing I saw was a shotgun and I just grabbed him and I held onto him. He said, ‘Turn me loose, turn me loose.’ Then I hollered for my husband. ... He throwed me over to the side. ... He throwed [pointed] that shotgun right in his face and said, ‘Look out, Pop Young, I will kill you.’ . . . Then my husband grabbed ... his pistol and shot him, that’s all I seed, and I ran out in the other bedroom and that was all I had seen then.” On cross-examination, she testified, “When he was shot the gun was in his hand.”

Henry died immediately. On examination, it was found that the shotgun was not loaded and had not been recently fired. The trial court, in entering judgment, remarked, “I don’t think Donald Henry realized that there would be someone who could in fact repel his — any threat of shooting, whether Donald Henry knew that this gun was loaded or not is purely conjectural, no one knows that, he is dead now, he cannot testify, he cannot tell us whether he knew the gun wasn’t loaded. ... I don’t think he anticipated that someone would upon his being twisted around shoot him in a very brief moment as he was being twisted from a bedroom .... It’s because of that that I differentiate between the many cases that I have read on this matter and the particular one before us today.”

Defendant’s theory is that “since the insured’s death resulted from his own criminal assaults, immediately preceding his death, the insured’s death resulted from his own aggression and was not accidental within the meaning of the insurance policy.”

At the outset, we agree with plaintiff that “it is the province of the trial judge, hearing the case without a jury, to determine the credibility of the witnesses and the weight to be given their testimony, and his judgment will not be disturbed unless manifestly contrary to the weight of the evidence,” (Hall v. Illinois Nat. Ins. Co., 34 Ill App2d 167, 173, 180 NE2d 695 (1962)), and we have examined this record in the light of this rule.

We also agree that “in Illinois, the courts have adopted a liberal attitude in their interpretation of this common insurance provision. In effect, ‘accidental means’ has been held to be synonymous with ‘accidental result,’ and defined as something which happens by chance or fortuitously, without intention or design, and which is unexpected, unusual and unforeseen.” Taylor v. John Hancock Ins. Co., 11 Ill2d 227, 230, 142 NE2d 5 (1957).

Plaintiff contends that the group policy “contained no exclusions denying recovery for an assault or for self-exposure to danger, and should be construed strictly against the defendant.” Cited in support is Ziolkowski v. Continental Cas. Co., 365 Ill 594, 7 NE2d 451 (1937), where the court said (p 603):

“In case there is any ambiguity in the policy, the rule is that all provisions, conditions or exceptions which in any way tend to limit or defeat liability thereunder, should be construed most favorably to the insured.”

Plaintiff also cites Yates v. Bankers Life & Casualty Co., 415 Ill 16, 111 NE2d 516 (1953), where it is said (P 19):

“It is evident that to recover upon the insurance policy plaintiff must establish that the death of the insured resulted solely from bodily injury caused by accidental means. The Illinois case law is replete with definitions of what constitutes death through accidental means. . . .
“In Christ v. Pacific Mutual Life Ins. Co. (312 Ill 525) the court reviewed the definitions and applications of the term ‘accident’ in cases involving recovery under insurance policies, and adopted the interpretation of the United States Supreme Court in United States Mutual Accident Ass’n v. Barry, 131 US 100. Under the rule promulgated in the Barry case, if an act is performed with the intention of accomplishing a certain result, and if, in the attempt to accomplish that result, another result, unintended and unexpected, and not the rational and probable consequence of the intended act, in fact, occurs, such unintended result is deemed to be caused by accidental means.”

We note, however, in Yates, it is evident that the facts there are not analogous to the instant case. On p 22, the court said:

“In the instant case, in sharp contrast to both the Cory and Hutton cases, the evidence, both direct and circumstantial, in no way suggests that decedent deliberately provoked a fight, or put Richardson in fear of his life or of his personal safety. Yates had no weapon, he did not advance menacingly or threateningly, nor in any way evidenced a malevolent intent, but merely limped forward in full view, with his hands open and arms extended, and then permitted himself to be easily ejected without fighting back in any manner. Moreover, Richardson testified that he did not intend to hurt Yates in any way, but merely to eject him, since he entered uninvited and did not answer when asked what he wanted. . . .
“. . . As in the Barry case, the injuries and death of Yates were caused by something unforeseen and unexpected occurring in the course of an intentional act, i. e., the backward fall from the living room to the lower level of the porch and down the step onto the cement sidewalk, where he hit the back of his head and fractured his skull.”

In examining the testimony in this record, we note that on direct examination by plaintiff, Horace Young was asked, “Did you just try to shoot the gun out of his hand?”, and Young answered, “No, I tried to keep — I shot him to keep him from shooting me.”

We are not persuaded that Yates and the other authorities of plaintiff are in point as applied to the factual situation presented here. As stated in Wylie v. Union Casualty & Life Ins. Co., 15 Ill App2d 448, 146 NE2d 377 (1957), at p 453:

“Whether or not an assured who is an aggressor should reasonably foresee the consequence of his actions resolves itself into a factual question to be answered in the light of the circumstances of the individual case.”

The insured, Henry, used a knife to threaten Hattie Moffitt, and after announcing, “I am going to come up here and kill everybody in the house,” he returned with a shotgun, and while struggling with Corinne Young he said, “This whole damn family has got to go.” He then pointed the shotgun at Horace Young and said, “Look out, Pop Young, I will kill you.” It was at this point that Horace Young fired to stop an aggression, and the result was a natural and probable consequence of the insured’s aggressive actions.

In Hutton v. States Acc. Ins. Co., 267 Ill 267, 108 NE 296 (1915), the court said (p 269):

“Where one voluntarily and deliberately engages in a fight or brawl and places another in a position where he, too, must fight to defend himself, it is a natural result, and one known to all sensible men as likely to follow, that one or both of the combatants will receive more or less serious injury. As to whether the assailant or the one assailed would be the more likely to be injured would depend upon the comparative strength and skill of the antagonists as well as upon the fortunes of the combat. . . . Such being true and the assault committed upon Huddles-tun being the deliberate and voluntary act of appellee, the injury which he received as a result cannot be said to have been caused by accidental means.”

See, also, Espinoza v. Equitable Life Assur. Soc., 345 Ill App 240, 103 NE2d 149 (1951).

We think the rule to be applied to the facts of this case is set forth in ALR2d, Vol 26, p 402:

“It has generally been held that where an insured, armed with a deadly weapon, makes an attack upon another, his resulting injuries will not be accidental even though the person attacked was unarmed or not known to the insured to be armed, since the resistance which the insured must be charged with expecting will be that which the person attacked is justified in using, rather than that which he has the apparent capacity to make.”

We conclude the evidence here clearly showed that the insured, Donald Henry, was an aggressor, and that his death was not accidental but the natural and probable consequence of his assault upon Horace Young with a shotgun, reasonably foreseeable by him or by a reasonably prudent person.

For the reasons given, the instant judgment is reversed and judgment is entered here in favor of defendant.

Reversed and judgment entered here.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


text:
    Kenneth M. Piper, et al., Plaintiffs-Appellants, v. Robert Reder, et al. and John Madro d/b/a Standard Construction Company, and The Village of Northfield, Illinois, a Municipal Corporation, Defendants-Appellees.
    Gen. No. 50,740.
    First District, First Division.
    April 25, 1966.

      Robert V. Nystrom and Robert E. Cronin, of Chicago, for appellants.
    L. Louis Karton and Philip D. Goodman, of Chicago, for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Plaintiffs appeal from an order entered on a petition under section 72 of the Civil Practice Act. The order reinstated an action which had been dismissed for want of prosecution while the cause was pending before a master in chancery for a hearing of defendants’ “Suggestion of Damages.”

The issue before this court is the propriety of the order under the facts set forth in the petition, answer and reply. The vacating order entered on June 1, 1965, by Judge Daniel A. Covelli, states: “[T]he Court finds that this cause was pending before Master Henry E. Perry on said date and if this fact had been known to the court at said time, the Order of Dismissal would not have been entered on said January 15,1965.”

Plaintiffs’ principal contention is that “the trial court erred in failing to conduct a full hearing of the allegations in the Petition and Answer thereto”; also, that the petition should “bring before the court matters not appearing of record, which if known by the court, would have prevented the rendition of the order.” Plaintiffs further contend that the petition “vilified and accused plaintiffs’ attorney of fraud, malicious unprofessional conduct and other nefarious charges and the trial court had a duty to conduct a full hearing thereon.”

In substance, the section 72 petition shows that defendants were successful in a temporary injunction proceeding and filed a Suggestion of Damages which was referred to a master in chancery and set for hearing on June 19, 1964. On December 22, 1964, attorneys for both sides appeared before Judge Covelli on defendants’ motion to close discovery proceedings. On the representation that the cause had been transferred to Judge Lupe, the attorneys took the motion to Judge Lupe, and he set January 15, 1965, as the date for taking the deposition of defendant Robert Reder.

On January 15, 1965, the deposition of Robert Reder was taken and also, on the same day, without knowledge on the part of defendants and their attorneys, an order was entered by Judge Covelli as follows: “This cause coming on to be heard upon the regular call of cases and there being none present to answer; It Is Hereby Ordered that the entitled cause be and the same is hereby dismissed for want of prosecution.”

In their petition, defendants alleged that they first learned of the dismissal order of January 15, 1965, at a master’s hearing on April 27, 1965, and charged plaintiffs with knowledge of and concealment of the dismissal order.

The answer of plaintiffs alleged that defendants knew the matter was on the chancery calendar call of January 15, 1965, and that the “dismissal was due entirely to defendants’ lack of diligence and fault and neglect, and there exists no excusable mistake on defendants’ part to justify vacation of order.” Plaintiffs further denied all knowledge of and concealment of the dismissal order. Defendants’ reply denied knowledge of the case being called on the calendar on which it was dismissed.

We agree with plaintiffs: that section 72 is not intended to relieve a litigant from the consequences of his own negligence (Williams v. Pearson, 23 Ill2d 357, 177 NE2d 856 (1961)); that one function of the section is to bring to the attention of the court matters of fact not appearing of record which, if known to the court at the time judgment was entered, would have prevented its rendition (Burns v. People, 9 Ill2d 477, 479, 138 NE2d 525 (1956)) ; and that the reference of the cause to the master was part of the court records and technically was known to the court at the time of the entry of the dismissal order.

At the outset, we find no error in the trial court conducting the hearing only on the petition, answer and reply. In Domitski v. American Linseed Co., 221 Ill 161, 77 NE 428 (1906), it is said (p 166):

“It has always been the practice in this State to hear proceedings of this kind upon affidavits and counter-affidavits.”

In 60 CJS 34, it is said:

“It is the usual practice to hear and determine motions on the supporting affidavits and ordinarily no oral testimony should be received on the hearing of a motion.”

In Isaacs v. The Shoreland Hotel, 40 Ill App2d 108, 188 NE2d 776 (1963), in considering a petition filed under section 72 of the Civil Practice Act, where it was argued that defendant’s affidavits could not be considered because they were not supported by oral testimony with the right of cross-examination at the hearing on the petition to vacate, this court said (p 114):

“Plaintiff cites no direct authority for this contention. Section 72(2) of the Civil Practice Act provides that ‘The petition must be supported by affidavit or other appropriate showing as to matters not of record.’ (Emphasis supplied.) Further, section 69, paragraph (2), of the Civil Practice Act states that ‘if evidence is necessary concerning any fact which according to law and the practice of the court may now be supplied by affidavit, the court may, in its discretion, require the evidence to be presented, wholly or in part, by oral examination of the witnesses in open court . . . .” (Emphasis supplied.)

Under the circumstances portrayed here, we believe it was within the trial court’s discretion to conduct the hearing without oral examination of witnesses.

The dismissal order shows that the cause was dismissed on January 15, 1965, because there was “none present to answer.” On the hearing of the instant petition, and when the trial court (Judge Covelli) was informed as to what happened, the court remarked, “That is all we need. If it was pending before the Master, then of course I would not have had it stricken, had I known, had someone taken the trouble to appear and tell me. But no one took the trouble and so we dismissed it . . . .”

As neither side appeared at the call, and both sides participated in a deposition hearing in the same cause on the same day, the trial court properly exercised the “equitable powers of the court” to prevent an injustice. See Weil v. Mulvaney, 262 Ill 195, 104 NE 273 (1914), and Madden v. City of Chicago, 283 Ill 165, 119 NE 60 (1918), where cases were reinstated which had been dismissed for want of prosecution while pending before a master in chancery.

In Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348 (1963), our Supreme Court said (p 613):

“Since our decision in Ellman v. DeRuiter, 412 Ill 285, subsequently adopted by the legislature (Laws of 1955, p 2270,) it has become certain that a petition filed under section 72, such as we have here, invokes the equitable powers of the court, as justice and fairness require, to the end that one may not enforce a default judgment attended by unfair, unjust or unconscionable circumstances.”

It was within the court’s discretion to limit its inquiry as aforesaid and not require any further hearing as to defendants’ negligence in not answering the calendar call. Technically, the order of reference to the master was a matter “appearing of record,” and it may be assumed that no trial judge would knowingly dismiss an action for want of prosecution when it was pending before a master in chancery and even though no one answered the call. It is seldom possible for a busy trial judge to keep informed of the docket status of all cases appearing before him on a chancery calendar call, and attorneys answering the call are expected to supply such information. However, mistakes do occur, and when a cause is dismissed inadvertently, a trial judge is expected to use the “equitable powers of the court, when the exercise of such power is necessary to prevent injustice.”

Plaintiffs further contend that the trial court should have conducted “a hearing on the accusations made by the petitioners . . . and, upon failure of such proof to castigate the accuser and make whole the accused.” We do not approve of attorneys castigating each other, either in pleadings or in any fashion. As argued by plaintiffs, the court “is in the unique position of being the sole means of furnishing such protection,” but we consider any action of that nature by the trial court in pending litigation to be a matter for the court’s sound discretion. We find no abuse here of that discretion.

For the reasons given, the order vacating the dismissal order of January 15, 1965, is affirmed, and the motion of plaintiffs to dismiss the appeal, heretofore taken with the case, is denied.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


author: MR. PRESIDING JUSTICE KLUCZYNSKI

text:
    Marie Berendt, Administrator of the Estate of Beverlee Berendt, Deceased, Plaintiff-Appellant, v. William Baumann, Defendant-Appellee.
    Gen. No. 50,763.
    First District, First Division.
    April 25, 1966.

      G. Kent Yowell, of Chicago (Yowell and Cessna, of counsel), for appellant.
    Beverly and Pause, of Chicago (Robert 0. Duffy, of counsel), for appellee.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

This is an appeal from a judgment in favor of defendant in a wrongful death action to recover damages for the death of a nonpaying automobile passenger under the “guest statute.” (Ill Rev Stats 1955, c 95%, § 58a.) Recovery therein is dependent upon proof that the occurrence causing the injuries resulting in the death of the passenger was occasioned by the wilful and wanton misconduct of the defendant.

A verdict was returned in favor of the defendant and the jury answered “no” to a special interrogatory, “Was the defendant, William Baumann, guilty of wilful and wanton misconduct?” The court entered judgment on the verdict and denied the plaintiff’s post-trial motion.

Upon appeal, plaintiff contends that the defendant was proven guilty of wilful and wanton misconduct as a matter of law and plaintiff was entitled to a directed verdict on the issue of liability. In the alternative, plaintiff says that the trial court erred (a) in striking portions of the complaint after proofs were closed; (b) in refusing to allow plaintiff to amend the complaint to allege as one of the “actions” of wilful and wanton misconduct, the failure of defendant to keep a proper lookout, and (c) in refusing to give certain instructions tendered by the plaintiff.

The testimony in the trial was that of the deceased’s mother, Marie Berendt, and that of the defendant, William Baumann, whom plaintiff called for cross-examination under section 60 (Ill Rev Stats 1965, c 110 § 60).

At the time of the occurrence, defendant was 23 years of age, employed in the drafting department of a concern located in Northlake, Illinois, about ten miles from his home in Chicago, Illinois. On Friday, November 1, 1957, he followed his usual routine of arising at about 6:00 a. m., leaving for work between 7:00 and 7:15 a. m., working from 8:30 to 5:00 o’clock p. m., and arriving home from work at about 5:15 p. m. He had supper at home, washed and dressed. He drove to the home of the deceased, Beverlee Berendt, arriving there about 8:00 p. m. He had been dating Beverlee often for some five years. On this evening they were to attend a teachers’ party in Rolling Meadows at the school where Beverlee was teaching. Mrs. Marie Berendt, Beverlee’s mother, said defendant would rather have stayed home on this particular evening but that Beverlee desired to attend the party given by the teachers because all of the teachers, their husbands and boyfriends would be there. Nevertheless, it was decided that they attend. On the way, they stopped off at the home of another couple, staying there approximately 45 minutes. They then proceeded to the party arriving there about 10:00 p. m. They left this party at 11:00 p. m., with another couple and went bowling at the Beverly Lanes in Arlington Heights. Some time around 1:00 p. m., Beverlee and the defendant left the bowling alleys and en route home stopped at a gas station to have the car tank filled, the windshield wiped and the oil checked.

Defendant was driving a 1951 Lincoln, a heavy car, which was in good mechanical condition. Leaving the gas station he proceeded toward Beverlee’s home taking Cicero Avenue to Elston Avenue in Chicago. Beverlee fell asleep in the front seat on the right side, in an upright position and near the car door. Elston at Cicero is a straight street, 45 feet wide having sufficient width for two lanes of traffic in each direction. Defendant was driving in the lane nearest the center of the road. The street was fairly well lighted and the headlights on the car were on and in good working order. He testified that he was driving with both hands on the wheel when at a point in midblock, “Well, I thought I saw a dark shadow running across the street so I swerved my wheel and hit the post.” The car ran into a steel light pole, inflicting injury to Beverlee, killing her. Defendant said the dark shadow was approximately in the middle of the road when he saw it, almost directly in front of his car, travel-ling from north to south or from his left to his right. The first time he saw the shadow was about a car length away. It was larger than a dog or a cat but smaller than a person. It might have been cast, he said, by the light of an oncoming car. As soon as he saw the shadow he reacted, swerved the wheel and the car went directly into the post. He was aware of the neighborhood, having driven through a few times and he recalled there was a lumber yard or some kind of construction place on the right-hand side.

It was stipulated into the record that at the coroner’s inquest defendant, when asked if at any time when driving a car he ever did see any of these objects he talked about, he answered that he always sees some shadow or something that seems to be crossing; that it was always a shadow from somewhere.

Beverlee’s mother testified that defendant was one of the nicest young men she had ever known, he didn’t drink, there was nothing unusual about him that evening and she was sure he did not have any ill will toward her daughter.

After this proof relating to the liability and other facts pertaining to damages, plaintiff rested.

Paragraph 3 of the complaint, as amended prior to the trial, read as follows:

The death of said decedent was the direct and proximate result of the wilful and wanton misconduct and gross negligence of the defendant in the following respects:
(a) In wilfully and wantonly and with gross negligence driving said motor vehicle at a high and dangerous rate of speed, contrary to and in violation of Sec 49 of the Uniform Act Regulating Traffic on Highways (c 95%, Ill Rev Stats 1957, par 146);
(b) In driving said motor vehicle with a wilful and wanton disregard for the safety of persons or property including the person of decedent, contrary to and in violation of Sec 48 of said Act. (c 95%, Ill Rev Stats 1957, par 145);
(c) In wilfully and wantonly and with gross negligence driving said motor vehicle upon a highway without at all times keeping the same under proper control;
(d) In wilfully and wantonly and with gross negligence driving said motor vehicle at a high and dangerous rate of speed, contrary to and in violation of Secs 27-40 of the Municipal Code of Chicago, making applicable the Uniform Act Regulating Traffic on Highways to all of the streets of the City of Chicago which was then and there in full force and effect.
(e) In wilfully and wantonly and with gross negligence driving said motor vehicle at a time when defendant knew that he was sleepy and was apt to fall asleep while driving, and thereafter permitting himself to go to sleep while driving, which resulted in the automobile being driven off the roadway and into a steel streetlight pole, causing the death of said decedent; and
(f) Otherwise carelessly and with gross negligence recklessly, improperly and with wilful and wanton disregard of decedent’s safety, operating said vehicle in such a manner that it ran off the roadway and into a steel streetlight pole as aforesaid.

After the plaintiff rested, the court sustained defendant’s motion to strike all of the subparagraphs of the complaint as amended except subparagraph (e). Plaintiff then moved to amend the amended complaint to add to it a subparagraph (g) “In driving said motor vehicle without keeping a proper lookout.” The court denied this motion.

Defendant rested his case and moved for a directed verdict. The court reserved ruling thereon pending the verdict of the jury.

The plaintiff contends that the proof adduced was sufficient to establish, as a matter of law, that defendant Baumann was guilty of wilful and wanton conduct and in support thereof cites the cases of Bartolucci v. Falleti, 382 Ill 168, 46 NE2d 980 (1943); Clarke v. Storchak, 384 Ill 564, 52 NE2d 229 (1944); Tennes v. Tennes, 320 Ill App 19, 50 NE2d 132 (1943) and Gaiennie v. Fringer, 5 Ill App2d 403, 126 NE2d 38 (1955).

In Bartolucci, a “non-paying guest case,” the court, at pages 174,175, said:

To constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of' the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of the person or property of another . . . such as exhibits a conscious indifference to consequences, makes a case of constructive or legal wilfulness. . . . Mere violation of a statutory speed limit does not constitute the wilful or wanton misconduct required for the maintenance of an action by a guest. . . . The rate of speed and the attending circumstances must also be taken into consideration.

The Appellate Court (Bartolucci v. Falleti, 314 Ill App 551, 41 NE2d 777) reversed the trial court judgment, on a verdict for the guest passenger, without remanding and entered judgment for the defendant and against the passenger. The affirmance of the Appellate Court by the Supreme Court was based upon a conspicuous “lack of proof (a) of any consciousness on the part of defendant that his conduct would naturally and probably result in injury; (b) of any intentional disregard of a known duty, or (c) any absence of care for the life, person and property of others such as exhibited a conscious indifference to consequences.” Bartolucci v. Falleti, 382 Ill 168, 176, 46 NE2d 980.

In Clarke, the gratuitous passenger was killed when the car defendant was driving “reached a point approximately one block of where it subsequently plunged through the iron post and wire-netted rail above Downey Road which was an underpass, it took a sudden turn to the left and went diagonally across the road for a distance of about 150 feet more and off the pavement on the left side of the road. After travelling off the pavement about 150 feet more, it went diagonally to the right across the road for a distance of 150 feet, at which point along the highway the automobile plunged through the railing to the underpass below.” The court felt that the accident was due to the wheels striking the dirt portion of the shoulder while defendant’s car was travelling at 45 m. p. h., and that defendant in turning to get back on the pavement, lost control of its operation which he never regained. “Certainly,” the court remarked, (p 581) “it could not be said that, under the circumstances as shown here, his act in losing control of the operation of the automobile was an intentional disregard of a known duty necessary to the safety of the person or property of another and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences or that, in doing the act or failing to act, he was conscious of his conduct, and though having no intent to injure, was conscious, from his knowledge of the surrounding circumstances and conditions, that his conduct would naturally and probably result in injury.” The court affirmed the judgment of not guilty based upon the verdict of the jury.

Tennes involved an accident that occurred in the State of Wisconsin. The reviewing court said (p 37): “The State of Wisconsin does not have a guest statute as does the State of Illinois. Under the law of Wisconsin all that plaintiff was required to prove was that Mrs. Tennes [the gratuitous guest] was in the exercise of due care . . . and that the defendant was guilty of negligence which was the proximate cause. . . .” It therefore is inapplicable here.

In Gaiennie, the question of wilful and wanton conduct of the host driver was submitted to the jury resulting in a finding of guilty. The court there held that the question of wilful or wanton misconduct was one of fact for the jury to pass upon. In upholding the jury’s verdict, the reviewing court was called upon to consider the sufficiency of the proof to sustain the finding. It, therefore, is not dispositive of the issue whether wilfulness or wantonness was a question of law as plaintiff here contends.

In Wise v. Wise, 22 Ill App2d 54, 159 NE2d 500 (1959) at p 58, the court, referring to the guest passenger statute, said: “The cited statute would have no effect if a momentary lapse of attention, or inadvertence in the use of faculties, such as constitutes negligence, could be called wilful and wanton misconduct. The latter requires a conscious indifference to danger, and has been repeatedly referred to as an intentional disregard of a known duty necessary to the safety of others. (Citing authorities.) ”

In our opinion the proof herein, under the authorities and principles discussed, was not sufficient to establish the guilt of defendant of wilful and wanton misconduct as a matter of law. It was a factual issue to be determined by the jury in the light of the conditions and circumstances proven. The court did not err in submitting the issue to the jury.

The case was submitted to the jury upon two theories under which the defendant could be found guilty of wilful and wanton conduct: (a) that he drove said motor vehicle without keeping any lookout or (b) drove when he knew he was sleepy and was apt to fall asleep while driving and thereafter permitted himself to go to sleep while driving.

Plaintiff admits that “ordinarily what constitutes wilful and wanton conduct is a jury question and when the jury is fully and properly instructed, its verdict is decisive. But plaintiff argues that this jury was improperly instructed as to the law.

We hold that the court did not err in striking subparagraphs (a), (b), (c), (d) and (f) of the amended complaint because they were not supported by the evidence in the case. We also find that error was not committed in refusing plaintiff to add the proffered sub-paragraph (g) that charged defendant with being guilty of wilful and wanton misconduct “in driving said motor vehicle without a proper lookout.” Such conduct cannot rest on an allegation of mere inattention, momentary lapse of attention or inadvertence in the use of faculties as quoted above from Wise. It was therefore proper for the court to submit the case on the question of whether the defendant was driving without keeping any lookout.

Plaintiff’s argument that the jury should have been permitted to consider the theory that defendant’s total conduct in reacting as he did with knowledge “that he sees shadows that seem to be crossing” showed wilful and wanton conduct is without basis. In the first place, plaintiff does not allege such theory or grounds in the complaint. Moreover, the proof was that defendant had quite extensive experience in driving before the occurrence and, as judged by the decedent’s mother, was a good, safe and careful driver. Furthermore, defendant did add to his testimony as to seeing shadows, that “as you drive at night, there’s always some shadow or something.” From the record before us, we believe the defendant’s total conduct was made a proper issue by the court’s instruction that the jury could consider whether defendant drove “said motor vehicle at a time when defendant knew he was sleepy and was apt to fall asleep while driving and thereafter permitted himself to go to sleep while driving.” The submission of the case on this theory was justified and proper.

Finally, we find no merit to plaintiff’s contention that the trial judge erred in refusing plaintiff’s instruction stressing the fact that ill will is not a necessary element of a wanton act. The instruction submitted by the trial judge defining “wilful and wanton conduct” was Illinois Pattern Jury Instruction Form No; 14.01. It is a succinctly expressed and widely accepted definition of “wilful and wanton conduct” as it has been interpreted under the law. See Signa v. Alluri, 351 Ill App 11, 15, 113 NE2d 475 (1953).

For the abovementioned reasons, the judgment of the circuit court is affirmed.

Affirmed.

MURPHY and BURMAN, JJ., concur.


text:
    Irving Graifman and Thomas Jennings, d/b/a Thomas Construction Company, Plaintiffs-Appellees, v. The Village of Skokie, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 50,783.
    First District, First Division.
    April 25, 1966.
    Rehearing denied May 9,1966.

      Harvey Schwartz, Corporation Counsel, of Skokie (Morton C. Kaplan, Assistant Corporation Counsel, of counsel), for appellant.
    Goldberg & Levin, of Chicago (Mayer Goldberg and Burton Berger, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a zoning case. The defendant Village appeals from a chancery order which granted permission to plaintiffs to construct a multiple dwelling on vacant lots zoned for single-family dwellings and directed defendant to issue the necessary permits.

The subject site is zoned R-2, Single Family Residential. Plaintiffs seek to rezone the site to R-4, Multiple Dwelling, so as to erect on it a 17-unit apartment building, consisting of ten 1-bedroom and seven 2-bedroom apartments.

The subject property consists of four vacant lots at the southeast corner of Niles Center Road and Davis Street in the Village of Skokie. The address is 9057-67 Niles Center Road, a secondary arterial thoroughfare. The tract is irregular, with an 108 foot frontage on Niles Center Road, a depth of 125 feet on the south, and a frontage of 100 feet on Davis Street on the north. It contains approximately 16,000 square feet and has a grade change of from 8 to 10 feet to an alley on the east.

The entire block immediately to the south is zoned for single-family residential and so developed. The blocks immediately to the west and north of the subject property are improved with multiple dwellings. The blocks to the east, with the exception of the immediate block, are zoned for single-family dwellings.

Plaintiffs’ complaint in chancery alleged the ordinances of the Village of Skokie prevented the “highest and best use” of the subject land and deprived plaintiffs of its “highest and best economic use,” and that the ordinances “have no reasonable or substantial relationship to the public health, safety, comfort, or welfare and are a cloud upon the plaintiffs’ title and destructive of the value of the property . . . .” Plaintiffs prayed that the zoning ordinances “be declared null and void” and removed as a cloud on plaintiffs’ title to the subject property. Plaintiffs additionally sought a permanent injunction restraining the Village from enforcing the ordinances.

The matter was referred to a master in chancery, and the record contains a report of the proceedings before the master. The master found “that the highest and best use of the property in question would be for multiple apartment development,” and that such development “would not in any degree be contrary to the public welfare” and “would not adversely affect the property owned by the objectors, who appeared before the Master, to any appreciable extent.” The master further found that plaintiffs had “overcome the presumption of validity of the zoning ordinance and have proved by clear and convincing evidence that the zoning restriction is invalid in its application to the subject property,” and recommended that a decree be entered in accordance with the prayer of plaintiffs’ complaint.

The decree overruled objections to the master’s report and adopted the findings. The decree granted plaintiffs “the right and permission” to use the subject property “to its highest and best use by improving said vacant property with seventeen (17) apartments, all in accordance with the applicable multiple zoning requirements of the Village of Skokie,” and directed the Village to issue the necessary construction permits. The decree also taxed the master’s fees and charges against the defendant, and the court retained jurisdiction for the purpose of enforcing the decree. The decree further found that “there is no just reason for delaying enforcement of or appeal from this Decree.”

Plaintiffs’ witnesses consisted of the two plaintiffs, a planning and zoning consultant (George H. Kranenberg), and a real estate broker (Ben Friend). Plaintiffs, in the business of constructing and selling family dwellings, purchased the subject property in August or September of 1968 and paid $19,000 for it. They knew it was zoned for single-family use and intended to build three single^family homes on it. They had plans drawn and, after receiving bids which indicated “a cost of twenty-five thousand dollars per house without including the price of the land,” it was decided that the cost of each house would be more than the value of the houses on the rest of the block, and “that multiple would be a better thing.”

Plaintiffs’ witness George H. Kranenberg testified that in his opinion “the highest and best use from a planning and zoning standpoint of the subject site is for multiple family dwellings.” He further testified, “In the immediate area of the subject site on Niles Center Road and in all directions except to the south the property is zoned for multiple family and so improved. . . . These uses are all uniform and established as they relate to the subject site so on all sides we have apartment zoning, apartment use which is the use that is uniform and established in this location, the only exception is the property directly to the south of the subject site and extending for two blocks south thereof. . . . Also the subject property has been vacant and has never been developed while the other property in the area is developed. For all of these reasons, it is my opinion that the property is best suited and best developed for multiple-family dwellings. Niles Center Road is one of the principal thru streets north and south street in the Village of Skokie. The residences that have been erected south of this property on Niles Center Road are not a proper use for this area.”

On cross-examination, he stated, “I see nothing wrong with having two different zoning districts in the same block. . . . The predominant character for the subject property is reflected from the northeast and west rather than from the south.”

Plaintiffs’ witness Ben Friend, a real estate broker, who had represented owners of some of the single-family residences in the subject block to the south, testified that “in the general area on Niles Center Road approximately seventy-five to eighty per cent of the area is multiple dwellings.” In his opinion “the value of the subject property for multiple dwelling purposes would be between thirty-four to forty thousand dollars. ... I would say that the property would not depreciate any single family dwelling residences in the area because of the multiple dwelling across the street, the multiple dwelling on each corner, also multiple dwelling east of there and I believe that the proposed development would enhance the valuation of the property in the neighborhood.”

Defendant’s witnesses were a city planning expert (Rolf C. Campbell), a real estate broker and appraiser (Roy Gottlieb), a Village traffic engineer, and two objectors (local home owners).

Defendant’s witness Rolf C. Campbell testified that in his opinion the highest and best use for the subject property would be for residential purposes. “Concerning the best residential use for development for the subject site there are a number of uses residential in character to which the property could be put. One of the classifications is that for which it is presently zoned and the other classification is that for which the petitioner is asking for a rezoning. In all fairness and honesty both uses could be put to use on this particular parcel of land. I think it could support and could have an apartment on it. It also has equal merit for a use as a single family home and between the two uses I think it could be logically used for a two family home. . . . From a planning and zoning point of view it would be proper to develop the site for single family homes.”

On cross-examination, he stated, “The adjacent apartments as referred to have a bearing on the subject property but I do not feel that they require that this property be used for apartments. I think that a single family use would be compatible with this just as the other parcels that are already developed with single family homes adjacent to this piece and are contiguous to it and are sold and are being lived in. ... I would say that the single family zoning amounts to 10% in the stretch of Niles Center Road as indicated. In determining the highest and best use of the subject property it is not necessary to determine the comprehensive planning of the Village of Skokie because we are at a point where the property or the area immediately adjacent or around it is 95% developed. ... I do not believe that the two blocks of single family residences is an intrusion on the apartments on Niles Center Road and the business area. In fact, with those single family uses already there fully developed and with people living there the people have a right to the protection to see that the adjacent area is held that way. ... In my opinion I do not believe that whether the land has been laying dormant for years has any bearing on the highest and best use. . . . Skokie Blvd. and Niles Center Road are the two major streets in the village of Skokie which are zoned and developed for multiple dwellings.”

Defendant’s witness Roy Gottlieb, a real estate broker and appraiser, who had acted as broker “for approximately 20 different scattered lots in the vicinity of Skokie in the last six or seven years,” testified, “It is my opinion that the subject site is readily suitable for the building of three single family houses thereon. . . . Skokie has been built up considerably over the last ten years and there are not nearly the number of remaining lots in Skokie as there are in further out communities. As a result of this lots available for single family building construction demand a premium. . . . Niles Center Road is a thoroughfare in Skokie but it is not a primary thoroughfare in the sense that Skokie Highway is. It is a 30 m. p. h. road which is comparable to interior streets. . . . The value of the subject site for R-2 single family purposes as of today would be nineteen thousand five hundred dollars. ... I believe that if these lots were given to me as a broker to sell for a reasonable selling period of sixty to ninety days I would be able to get a cash purchaser for nineteen thousand five hundred. Further, I believe that the single family houses along this street are somewhere in the twenty-two to twenty-five thousand dollar price range and I believe that houses in this bracket could be built and marketed at a profit to builders .... My opinion of the value of the subject site if rezoned for the proposed multiple use would have a value of approximately forty thousand dollars . . . .”

Concerning any depreciating effect to the single-family residences to the south, Gottlieb said, “The contrast between the two the bulk of the building adjoining the first single family house would have a depreciating effect of approximately 10% on the value of that house as opposed to the value of other adjoining houses further on along Niles Center Road. ... If the subject property were rezoned for R-4 multiple purposes in my opinion this will be a start of a trend for the development of the vacant property directly to the east for the same purposes, .... My opinion as to the highest and best use of the subject site is for development for three single family residential sites. . . . This particular block in total has been zoned and developed with the exception of one or two vacant sites and the subject property for the zoned purposes.”

On cross-examination, he testified, “If the subject site were rezoned I do not think that it would have any depreciating effect to any of the houses on the block of Niles Center Road except the one next to it. It would not have any depreciating effect on any of the houses on the street immediately to the east of Niles Center Road. . . . My general experience with people looking for houses, is that they did not want to buy right next door to an apartment building and I would sell them other houses unless the price were low enough I found that abutting an apartment building was the worst possible influence and across the street would not be desirable but not as objectionable and backing up to an apartment building in many cases had no effect.”

Defendant’s witness Paul C. Box, a traffic engineer for defendant, testified that there was a problem of rather severe parking congestion along Niles Center Road in this area, and if the development were constructed an added traffic volume could be expected. On cross-examination, he said, “I would say that Niles Center Rd. is already a congested area. From a traffic and planning viewpoint multiple is more compatible than single family along a major traffic route. When we have a secondary artery such as Niles Center Rd. we find a mixture of both.”

Defendant’s witness George Towbin testified that he lived at 9055 Niles Center Road. “I have lived there approximately 8 years. My house directly abuts the subject property. . . . When we purchased our home we checked the zoning and found that the whole block in which we were located was zoned residential. I am against the proposed apartment development for the subject site. My reasons are that it would reduce the value of our home I would say to a considerable sum.”

Defendant’s witness Jack J. Rubin testified he lived at 9010 Knox (the north and south street immediately east of the subject block) for five and one-half years. His house is the second house from the corner on Knox, 350 feet from the subject site, and it cost $34,000. He said, “I am opposed to Plaintiffs’ proposal to erect a 17 apartment structure on the subject site. My reasons for objecting to the proposed development are that I believe the proposed structure is contrary to the character of the entire block as a whole. The area on the entire block consists of homes, single family dwellings entirely, except for this piece of vacant and the vacant immediately adjoining it. There are constructed on the balance of this square block homes ranging in value from twenty-five to approximately sixty-five thousand dollars.”

At the outset, we consider plaintiffs’ motion to dismiss the appeal primarily based on plaintiffs’ contention that “the failure of the defendant to set out objections to the master’s report, which stand as exceptions to it, constitutes a fatal omission in the abstract, which precludes this court from considering factual questions presented by the defendant. McCook Window Co. v. Hardwood Door Corp., 52 Ill App2d 278, 283.”

The instant abstract, the pleading of the appealing party in a court of review, includes the master’s report of his “findings of fact, conclusions of law and recommendations,” and these were approved and adopted by the trial court. The contentions of the defendant are basically questions of law and are not directed at the “findings of fact” as such. Therefore, the abstract does contain what is sought to be reviewed, and we find no merit to this contention.

Plaintiffs also complain of the failure of the defendant-appellant to observe the appeal procedure rules, and that “these glaring violations of the rules of court and of the fundamental principles of appeal should not remain unnoticed.” In principle we agree with this statement but, as plaintiffs have not been prejudiced, we have accepted defendant’s explanation. For the reasons stated, plaintiffs’ motion to dismiss the appeal is denied.

In urging the affirmance of the decree, plaintiffs cite LaSalle Nat. Bank v. County of Cook, 12 Ill2d 40, 145 NE2d 65 (1957), to show that the Supreme Court has set forth six principles applicable to each zoning case and asserts that “each and all of these principles when applied to the case at bar require affirmance of the decree appealed from.” In that case, it is said (p 46):

“A zoning ordinance is presumptively valid . . . , this presumption may be overcome only by clear and convincing evidence . . . , and the burden of proof is on the plaintiff.....
“Even though the validity of each zoning ordinance must be determined on its own facts and circumstances . . . yet an examination of numerous cases discloses that among the facts which may be taken into consideration in determining validity of an ordinance are the following: (1) The existing uses and zoning of nearby property, ... (2) the extent to which property values are diminished by the particular zoning restrictions, ... (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public, ... (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner, ... (5) the suitability of the subject property for the zoned purposes . . . , and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property.
“No one factor is controlling. It is not the mere loss in value alone that is significant, but the fact that the public welfare does not require the restriction and resulting loss. When it is shown that no reasonable basis of public welfare requires the limitation or restriction and resulting loss, the ordinance fails and the presumption of validity is dissipated. . . . The law does not require that the subject property be totally unsuitable for the purpose classified but it is sufficient that a substantial decrease in value results from a classification bearing no substantial relation to the public welfare.”

Plaintiffs also cite LaSalle Nat. Bank v. Village of Skokie, 26 Ill2d 143, 186 NE2d 46 (1962). While that case dealt with property located two blocks from the subject site and held that the property “takes its character from the trend of development along Niles Center Road,” the court stressed many factors which are not present in the instant case.

Plaintiffs further contend that “where the equities are balanced and where the loss to plaintiffs does not cause public benefit then clearly the restrictions should be removed,” and “the defendant’s expert testified that there would be a depreciating effect of approximately ten per cent (10%) on the value of the home next adjacent to the subject property but that such depreciation would be confined to this one single family house.”

Defendant argues that there exists in this case a fair difference of opinion as to whether the property should be classified single-family or multiple-family and, therefore, the question must be resolved in favor of the Village of Skokie.

After examining the many cases cited by both sides, we believe the factual circumstances and pronouncements made in Bennett v. City of Chicago, 24 Ill2d 270, 181 NE2d 96 (1962), are pertinent here. In that case, the subject property consisted of three vacant lots in an R-2 residential district. The City refused to grant building permits to plaintiff, who sought to erect multiple dwellings. The lots across the street from plaintiff’s block and the next block to the west were largely for commercial use, and the two blocks next west were largely devoted to apartment buildings. There, the court said (pp 272, 273):

“The existing use in plaintiff’s block is exclusively single-family dwellings, 24 in number, and conforms to the zoning classification. The suitability of her lots for the zoned purpose is attested by the fact that the entire remainder of the block has been fully developed with single-family residences, including the six adjoining recently built residences which front on Irving Park Road. The entire area to the north and west is similarly developed and zoned. While the narrow strips off the south side of the 3 blocks to the west are devoted to commercial and multiple-dwelling purposes, plaintiff’s lots partake of the character of the block of which they are a part.
“. . . It is evident that plaintiff’s lots will be of somewhat greater value without the restrictions, but that is usually the case. . . . Defendant’s witnesses, without attempting to fix a dollar loss, testified that neighboring property would be depreciated. Plaintiff seems to infer that, since enforcement of the restrictions diminishes her value, it is incumbent upon the city to show the extent by which the health, safety, morals or general welfare is enhanced by maintaining the restriction. This overlooks the burden upon one questioning the validity of an ordinance.
“A presumption exists in favor of the validity of a zoning ordinance and the one who attacks such an ordinance has the burden of overcoming the presumption by proving with clear and convincing evidence that, as applied to him, it is arbitrary and unreasonable and is without substantial relation to the public health, morals, safety and welfare. . . . We are of the opinion that plaintiff has not met the burden.”

In the instant case we, too, are of the opinion that plaintiffs have not met their burden with clear and convincing evidence. As said in Urann v. Village of Hinsdale, 30 Ill2d 170, 195 NE2d 643 (1964), at p 175:

“When all of the evidence is considered, it is our opinion that the plaintiffs’ proof fails to overcome the presumption of validity but shows at best a situation where room exists for a difference of opinion concerning the reasonableness of the single-family residence classification, in which case the legislative judgment must be conclusive.”

And on p 176:

“Other persons living in the single-family residence district involved have a right to rely upon the precept that the classification will not be changed within the district unless the change is required for the public good, . . . and there is credible evidence here that the use of plaintiffs’ property for apartments will depreciate the value of nearby residences and create congestions the single-family residence classification was designed to prevent. Plaintiffs, on the other hand, purchased their lots, presumably at residential prices, with a full awareness of their restricted zoning, ... no changes have occurred in either the general character or existing uses in the neighborhood since plaintiffs acquired their lots, . . . and there is no showing that their property cannot be profitably developed on a single-family dwelling basis.”

In sum, and at the most, the evidence here demonstrates a difference in opinion as to the highest and best use of the subject property, and in that case the legislative judgment of the City Council must be conclusive. Although the other three corners at the subject site are improved with multiple family dwellings, the fact that the balance of this block has been improved with single family dwellings is indicative of the correctness of the zoning classification. We note, also, there is testimony in the record to indicate that plaintiffs could sell the subject property for approximately its cost to them. As said in Bennett v. City of Chicago, 24 Ill2d 270, 273, 181 NE2d 96 (1962), “Zoning must begin and end somewhere, and we have recognized that streets may form an appropriate boundary for zoning districts.”

We conclude that plaintiffs have not sustained their burden of proof by clear and convincing evidence, and for the reasons given, the decree of the Circuit Court is reversed.

Reversed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Billie Harris, Defendant-Appellant.
    Gen. No. 50,919.
    First District, First Division.
    April 25, 1966.

      Marshall I. Teichner, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial, defendant, Billie Harris, was convicted of attempted robbery and sentenced to the penitentiary for a term of 2 to 5 years. On appeal, defendant contends (1) that he was not proved guilty beyond a reasonable doubt, and “at best, an assault and battery were established,” and (2) the failure of the police officers to advise him of his constitutional right to remain silent and of his right to counsel is reversible error.

The victim, Harrison Slinger, testified that on the evening of October 16, 1962, at about 10:15, while in the vicinity of 130th and Ellis Avenue, he met and spoke with Patricia Jones, an acquaintance of one year. While they were talking, defendant called the girl away from Slinger and talked with her for a short time. Later, at about 11 o’clock on the same evening, Slinger was physically assaulted by five or six men. “The defendant was one of them. I began to run, and as I was running they overtook me and one of the boys just ran right on over me and knocked me down and began to beat me in the face. And the others, they piled on and they cracked me and beat me, and then they let me get up. When I got up I saw Billie Harris standing right in front of me. He had a knife in his hand and he said, ‘If you raise your hand or make a move I’ll cut your throat,’ but he swore in saying it. I told him, ‘Why are you all beating me?’ I said, ‘Five or six of you all beating me like this.’ And he says, ‘We’ll kill you.’ Billie Harris said, ‘We’ll kill you.’ And they knocked me down again.

“. . . Then they did start to beat me again and this time Billie Harris said, ‘Get it.’ I am down on the ground and they on top of me and I am screaming and then one them went in my pockets. I don’t know which one. Then he went in my back pocket. I screamed and hollered and they were going through my pockets. Billie Harris told me to shut up, that he would cut my throat. . . . Another car drove up and stopped about five feet from where this was happening, and he had his headlights on, and I begged him, I said, ‘Mr., please let me get in your car.’ . . . He let me get in the back of his car and he drove me up Ellis Street to 131st Street. ... I saw a squad car sitting right over the bus stop. I went there and told the officers what happened. . . . That was not the first time I had ever seen the defendant Billie Harris. I had seen him twice before; the first time about 10:30 p. m. that same date, in front of the food mart in Altgeld Gardens. The second time I saw him was at the west end of the food mart about 8 minutes later. ... I rode around in the squad car at that time.

“. . . The next thing I saw Billie Harris come from between the two project houses. I told the officers that that was the fellow that did it. Then the officer got out of the car and called Billie Harris and asked him what had happened and he replied that he had been to this girl’s house. I told the officer, ‘That’s the fellow that just got through beating me and trying to hold me up.’ When I said this, he was about two feet away from me. ... I have seen People’s Exhibit 1 .... It looks like the knife that was held by the defendant, Billie Harris, on the night in question. The next time I saw that knife was when the officers took it off of him in front of us where we were sitting waiting. The officer that was in the jury room took the knife from him.”

Police Officer McDowell testified as to Slinger approaching the squad car. “When I looked up and saw him he was bleeding around his mouth and nose, and his clothes were disarranged.” He identified a knife found on Harris; “I took it from his pocket and I inventoried this knife subsequently.”

Defendant then testified that he saw Slinger at about 11:00 p. m. on October 16, 1962, talking with Patricia Jones, a girl he had not seen in about a year or so. After a conversation with them, Slinger and the girl left. This was the last time defendant saw them until he was arrested. He denied being present at the assault. He denied ownership of the knife identified by Officer McDowell, and stated that the knife taken from him had a red and white pinstriped handle.

Defendant further testified that after Slinger and Patricia left, he went to a poolroom and stayed there about 15 minutes and then went to a tavern. He then went to a drugstore with a friend and had a drink, and went back into the poolroom. About five minutes after eleven, he went over “to some people’s house at 938 East 133rd St., by the name of Bonds. I told the police where I had been. I didn’t do anything but talk to Mrs. Bonds. I went to see if Mr. Bonds had to work the next day and she told me yes. ... I stayed at Mrs. Bonds’ house until about 11:15 or so. I didn’t stay no more than ten minutes and just left and walked home.”

In rebuttal, Police Officer Hughes testified that he questioned defendant “around 1:00 a. m. on October 17, 1962,” and defendant told him that on the evening of October 16, “he was at a friend’s house and refused to give me their name or address, and he said the person that was there was a married woman and he didn’t want to get her involved.”

Police Officer Hill, one of the arresting officers, testified he “found a black bone handled knife” on defendant and at the scene gave it to his partner, Officer McDowell. He further said, “The defendant at that time did not tell me that he went to a poolroom during the evening, returned to the poolroom and went to a drugstore, and from the poolroom to a friend’s house.”

Officer McDowell testified and again identified the knife. “I had occasion to put markings on the chipped side of the handle . . . and that is the knife. . . . and I got the knife from Hill.” He stated defendant did not tell him that he had gone to a poolroom, a tavern, a drugstore or the home of Mrs. Bonds.

Defendant resumed the stand and testified, “At the time I was arrested, I told the officers where I had been. I was coming from a friend’s house, Mrs. Bonds’.”

Defendant’s first contention is that the State failed to prove defendant’s intent to commit robbery, and that “the conduct of the defendant as presented by the State’s evidence establishes an assault and battery by an enraged and jealous man. The defendant was clearly out to get Slinger who was conversing with Patricia Jones, an important witness in this case whose absence is unexplained. . . . While this conduct, if defendant did participate as alleged, is surely reprehensible, it is in nowise an attempt to commit robbery under Ill Rev Stats 1963, Ch 38, Sec 8-4 and 18-1.” To support his contention that the evidence here is not sufficient to prove an “intent” to take property from Slinger by the use of imminent force, defendant cites People v. Woods, 24 Ill2d 154, 180 NE2d 475 (1962), where it is said (p 158):

“Mere preparation to commit a crime, of course, does not constitute an attempt to commit it. We feel however that an attempt does exist where a person, with intent to commit a specific offense, performs acts which constitute substantial steps toward the commission of that offense.”

The elements of the offense of “attempt” are defined in Illinois Revised Statutes, 1963, Ch 38, § 8-4, as “a person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” In People v. Murff, 29 Ill2d 303, 194 NE2d 226 (1963), it is said (p 305), “Criminal intent may be shown by circumstantial evidence.”

We consider the testimony of Slinger that some one of his assailants went through his pockets demonstrated acts “which constitute a substantial step toward the commission of that offense [robbery],” and although there is no testimony that any property was taken from Slinger, the act of going through his pockets by his assailants comes within the statutory definition of an “attempt.” Also, although there is no direct testimony that defendant went through Slinger’s pockets, “it is not essential that the defendant’s participation in each element of the crime be established, it is sufficient to show that he aided, abetted or assisted in the commission of the crime.” People v. Cole, 30 Ill2d 375, 379, 196 NE2d 691 (1964).

Defendant next argues, “The total evidence in this case shows that the defendant did not participate in the alleged beating of the complaining witness”; that the State only produced one witness to the attack, and “the unexplained absence of the testimony of Patricia Jones and of the identity of any of the other assailants must be set alongside of defendant’s testimony.”

We find this contention to be without merit. Slinger did not testify that Patricia was present at the assault. Apparently she was not a material witness. The testimony of one witness alone, if it is positive and the witness credible, is sufficient to convict, even though the testimony is contradicted by the accused. (People v. Cox, 22 Ill2d 534, 539, 177 NE2d 211 (1961).) Here, Slinger had ample opportunity to observe the defendant, and his identification was positive. He testified, “The street was lit up; were right up under the light where these men came up to me and the defendant held a knife.” The credibility of witnesses and the weight to be given their testimony is for the trial court, who saw and heard the witnesses testify, and the trial court resolved the conflict in testimony against the defendant. See People v. Boney, 28 Ill2d 505, 192 NE2d 920 (1963), where the court said (p 510):

“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 conclusions, . . . unless the proof is so unsatisfactory as to justify a reasonable doubt of guilt.”

Finally, defendant contends that “the facts show a violation of the express mandate of Justice Goldberg and the Supreme Court in People v. Escobedo, 378 US 478, and violate Gideon v. Wainwright, 372 US 335. A duty to apprise a litigant of his right to remain silent is no less present when he does or does not ask for an attorney, or regardless of his having previously retained legal counsel.” An examination of this record shows nothing that could be considered as a confession or admission of guilt by defendant. He was represented by counsel at his arraignment and trial. Therefore, we find no violation of the Escobedo and Gideon decisions.

From our review of this record, we find that the proof was satisfactory, and defendant's guilt of an attempt to commit the offense of robbery was proved beyond a reasonable doubt.

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

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.