author: MR. JUSTICE KLUCZYNSKI

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph T. Young, Defendant-Appellant.
    Gen. No. 49,906.
    First District, First Division.
    December 13, 1965.

      Herman E. Smith, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendant, Joseph T. Young, was convicted in a bench trial of the crime of armed robbery and sentenced from one to five years in the penitentiary. On appeal, he contends that the state failed to prove him guilty beyond a reasonable doubt and disregarded his defense of alibi.

Complainant, Charles A. Thedford, testified that on November 28, 1968, he was employed at 2801 S. State Street, Chicago, as a service station attendant. At approximately 5:00 a. m., a young man approached him requesting a package of cigarettes. He unlocked the cigarette box and turned to hand him the cigarettes when the man, holding a pistol in his hand, said “This is a stick up.” He gave the man twenty dollars after which the holdup man turned in a menacing manner “like he was going to shoot or something.” Thedford fell behind some anti-freeze cases and the man started to run across State Street. Thedford gave chase and the culprit fled into the housing project across the street. Although it was dark at the time, the canopy around the station was well illuminated with fluorescent lights. He said that two or three minutes elapsed from the time he was asked for the cigarettes and the time he jumped behind the anti-freeze cases, and that in this time he was able to observe the man who held him up. The police responded to his telephone call within five minutes and he gave them a description of the robber. He said the man was between 19 and 20 years old; between 5' 6" and 5' 8" in height, weighing between 135 and 150 pounds; had process hair, with a pompadour, and was a Negro. He identified défendant in court as the man who held him up. On January 20, 1964, at about 2:30 in the afternoon he arrived at the service station, changed clothes and went out to service a car when he saw defendant and his father in a car being “pushed into the station by another automobile.” Defendant got out of the car and asked him for change for a “ten.” The complainant replied that he did not have change and told the defendant to come inside the gas station. When he did, the complainant “told him he was the man that stuck me up and would he wait until the police came.” Defendant hesitated but he agreed to wait. Complainant called the police and had the defendant placed under arrest.

On cross-examination Thedford was asked in detail about the thief’s description and how he described him to the police. He said the man had brown eyes, a dark complexion, fairly thick lips, and was not particularly muscular. Defense counsel asked whether he noticed the man’s fingernails and he replied that he had a bruised thumbnail but wasn’t sure on which hand. He didn’t remember if he gave this detail to the police. He was pretty shaky after the stick up. When asked if he noticed any other marks, he said the man had a mole on the left side of his neck but didn’t remember if he had told this to the police. He observed defendant’s neck on the date of the arrest and that was what made him “really know” he was the man. The money was taken from the top breast pocket of his uniform.

The only other witness for the state was Leon Barnett, police officer, who responded to complainant’s phone call on January 20, 1964. He found the complainant and the defendant in the gas station. Complainant told him that he was robbed on Thanksgiving morning by the man who was standing there. Defendant denied it.

Defendant testified that on November 27, 1963, he resided in the housing project at 2940 State Street, a block south of the Clark station on the other side of the street. He arrived home at apartment 505 that day about 7 or 8 p. m. He had his supper and watched TV until it went off the air. He then played the radio in his bedroom. Some time between 4:30 and 5 a. m. Thanksgiving morning, a neighbor, Mr. Wade, knocked on the door. Defendant answered the knock and Wade asked that the radio be turned down. His mother got out of bed and his father came to the door. Defendant turned off the radio and went to sleep. He did not get up until around noon and hadn’t left the house at any time after Wade had left. He denied the robbery. He testified he has a mole on the right side of his neck. He has a discoloration on his right thumb, but he said it was the result of an injury he received when shutting a cell door since he has been in custody.

Jack Wade, the neighbor, said he lived in apartment 506, next door. Between 4:20 and 4:30 a. m. he went to the Young apartment to complain of the loud radio. Defendant answered the door. Wade asked him to turn down the radio and defendant said he would. The father came to the door and when told of the reason for Wade’s visit, said he was sorry and told defendant to go to bed. The father then asked him in. He stayed for about ten minutes—no longer. Defendant, at the time he saw him, had a black bandanna around his head, a tee shirt, and' a pair of shorts. The mother asked Wade what he was doing up so late and he told her it was one of those nights he couldn’t sleep and in the meantime was already cooking. He had some ribs in the stove and had to go back and check them. He returned to his apartment and attended to his cooking until the paper boy brought the newspaper at approximately 6:30 a. m. Nothing unusual occurred before the arrival of the paper boy. He testified that he could have heard any noise on the floor of the building very well and that it is impossible for anyone to walk out of any of the eight apartments there without someone that is awake not hearing it because “the locks are made so that they open, they lock automatically.” He said that he could not have missed hearing it; that their apartment doors are approximately three feet apart; that the partitions are very thin, and that you can hear from one apartment to the adjoining apartments.

Defendant’s father and mother testified they and the defendant were home at the time the robbery occurred; that Wade was present, as he related; and that defendant did not leave the apartment until some time Thanksgiving afternoon.

Defendant called police officer Fred Harris. He and his partner had responded to the robbery call at about 5:10 a. m. on November 28, 1963. After his partner had spoken to the complainant, a police report was made, which he produced. He did not remember any description of a mole or any reference to a discoloration of the thumb being given and none appeared in the report.

Defendant attacks the insufficiency of the identification by the complainant alone and describes it as an “unsupported accusation of a single complaining witness whose testimony was, in many important respects, so improbable, contradictory and contrary to human experience as to be beyond belief.”

Testimony of one witness alone, if it is positive and the witness credible, is sufficient to convict even though the evidence is contradicted by the accused. People v. Miller, 30 Ill2d 110, 113, 195 NE2d 694 (1964). Where material facts in issue are conflicting, it is the duty of a jury, or of a court sitting without a jury, to determine the credibility of the witnesses and the weight to be given their testimony, and on review this court will not substitute its judgment for that of a jury, or trial court. But it is always the duty of this court to examine the evidence in a criminal case, and if it is so improbable or unsatisfactory as to raise a serious doubt of the defendant’s guilt the conviction will be reversed. People v. Coulson, 13 Ill2d 290, 295, 296, 149 NE2d 96 (1958). The court, in Coulson, on page 296, said: “A judgment of conviction can be sustained only on credible evidence which removes all reasonable doubt of the guilt of the defendant, and it is the insufficiency of the People’s evidence which creates such doubt. If a conviction is to be sustained, it must rest on the strength of the People’s case and not on the weakness of the defendant’s case.”

Defendant contends that the conviction was based on the unsupported accusation of a single witness whose testimony was, “in many important respects” so improbable, contradictory and contrary to human experience as to be beyond belief. He says the complaining witness gave a general description of the robber to the police that would apply to thousands of persons, but when confronted with defendant in the courtroom he proceeded to amplify and modify the description trying to buttress it by describing a discolored thumbnail and a “supposedly present” mole on the thief’s body. From the record we find that defendant’s counsel, in his arduous cross-examination, elicited the additional descriptive testimony, calling upon the witness’s recollection and memory. The witness did say he was “shaken up” after the robbery and did not remember fully describing the thief to the police.

Defendant further argues that it is unbelievable that defendant would rob a gas station a block or so from his home, where he traded; that having a prominent mole on his neck, and wearing a crew neck sweater, would expose it to view while committing a crime; and that he would return to ask the victim for change; and when accused of the robbery would agree to wait for the police. The record before us does not reflect that the defendant had traded at the station at any time. The record does reveal, however, that the defendant’s arrival on the day of arrest was the result of being in an evidently stalled car that was “pushed” into the station.

People v. Stewart, 62 Ill App2d 428, 211 NE2d 154 (1965) affirmed a robbery conviction based upon the sole identification of a single witness, holding that the effect of minor variations or lack of recollection by the witness upon the credibility of that witness is a matter for the trial court’s determination. It is significant to note that in the Stewart case, the witness and defendant had seen each other prior to the day of the commission of the crime.

In People v. Parks, 54 Ill App2d 442, 203 NE2d 434 (1964) (abst), the court found that the fact that an accused charged with armed robbery of a gas station was acquainted with the attendant whom he allegedly robbed and was thus subject to a conclusive identification, did not render the armed robbery an act so contrary to human experience as to defeat a conviction. We cannot say in the instant case that the evidence against the defendant is so unsatisfactory and unreasonable as to raise a serious doubt of the defendant’s guilt. We are of the opinion that the trial court did not err in finding the state’s evidence was not improbable, unconvincing or contrary to human experience.

Finally, defendant charges that the trial court erred in disregarding his testimony and that of his witnesses regarding his whereabouts at the time the crime was committed. His defense was an alibi. “Alibi is an affirmative defense. Where the corpus delicti is proved, together with evidence tending to show the guilt of a defendant, the burden of establishing an alibi rests upon him, although upon the whole case his guilt must be proved beyond a reasonable doubt.” People v. Renallo, 410 Ill 372, 376, 102 NE2d 116 (1951). Here, the determination of the credibility of these witnesses and the weight to be accorded to their testimony was committed to the trial judge. He saw and heard the witnesses and we cannot say he was not warranted in discounting the alibi evidence.

For these reasons, the conviction will be affirmed.

Affirmed.

BURMAN, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Estate of Margaret Guinane, Deceased. Francis Anderson, Executor of the Estate of Margaret Guinane, Deceased, Petitioner Below, Appellant, v. Ellen Ruth Quinn, a Minor, etc., et al., Respondents Below, Jimmy Idell and Katy Idell by Casimir J. Mikol, Guardian ad Litem, Appellees.
    Gen. No. 50,396.
    First District, First Division.
    December 13, 1965.

      George V. O’Connell and James F. Lyons, of Chicago, for appellant.
    Bernard McDevitt, of Chicago, for appellees.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court.

The Probate Division of the Circuit Court admitted to probate the will of Margaret F. Guinane, deceased, dated November 27, 1959, and codicil dated September 24, 1964. The executrix of the estate appeals from part of that order. It is her contention that the court erred in allowing “the purported codicil” to be admitted to probate.

The will executed in 1959 disposed of certain furniture, bedding, linens and personalty to specific legatees and then directed the executrix to sell all the remaining assets and divide the same by percentages to numerous persons and charities. Of the twelve bequests only one was made to a relative—a nephew.

The facts and circumstances relating to the execution of the document, referred to as the codicil, are as follows: On September 24, 1964, decedent entered a hospital for surgery. She was prepared for the operation and tubes were inserted in her mouth, one leading to the stomach, the other to her bowel. Judy Claus, a private nurse on the case, reported for duty at about 3:00 p. m. and said the decedent was in bed in a semi-Fowler’s position— on her back and her body was at a 45-degree angle. Mrs. Idell, mother of Jimmy and Katy Idell, who were named in the codicil, was in the room at the time. Shortly thereafter, decedent indicated and made motions which Claus “gathered” to be a request for paper and pencil. Mrs. Idell left and returned with paper and pencil. Decedent then wrote the following:

9/25/64
Our little secret.
I want $15,000 to be given to Jimmy Idel and Katy Idell to help in educationing them
Aunt Margaret
Get a couple of witnesses to sign. M.

It was written using two pens and a pencil. When the first pen failed to function properly, Mrs. Idell had Claus give decedent a red pen and when that failed to operate fully, decedent finished with a pencil. Decedent handed the paper to Mrs. Idell who gave it to Claus. She said that although decedent did not ask her to sign, decedent “wrote down here about a couple of witnesses and I was then asked by Mrs. Idell to sign it, which I did.” Claus was in the room at all times, had seen the decedent sign and signed in decedent’s presence. She believed decedent was of sound mind and disposing memory at the time.

Kenneth Bridge, a registered nurse, in charge of the “shift” at the hospital, testified he knew decedent by the title of “Aunt Margaret.” On the day in question, as he came down the hall, Mrs. Idell called him saying, “Aunt Margaret wants this piece of paper signed.” He read the document. Present were Judy Claus, Mrs. Idell and the decedent. He signed it “at the request of Mrs. Idell, after reading the last paragraph of the piece of paper here.” He signed on a table that was half way in the doorway of the room. It was from 12 to 15 feet from decedent’s bed. He could see her and she could have seen him. “. . . She could have seen me sign, in the position I was standing. She could have seen me sign it.” He believed her to be of sound mind and disposing memory. Decedent died at the hospital on October 6, 1964.

It is the contention of the executrix that the document admitted to probate as testatrix’s codicil was without words of devise or bequest and did not manifest an intent to make a testamentary disposition of property; that the name signed to it was not the full name of the decedent; that the document was not witnessed in her presence by two or more witnesses; and the execution by deceased was not witnessed by two or more witnesses as “was mandatory under the statute relating to wills.”

Courts entertain liberal views as to the form and contents of wills and codicils and hold that an instrument executed with a testamentary purpose and the requisite formalities may operate as a will or codicil. Any writing, however informal it may be, made with the express intent of giving posthumous destination to the maker’s property, if executed in accordance with the statutory requirements, will be a good testamentary disposition. Austin v. First Trust & Savings Bank, 348 Ill 406, 413, 175 NE 554 (1931).

The instrument before us clearly expresses a desire of the decedent to give to certain persons a definite sum of money and was not in conflict with any of the provisions of her will. After personalty was specifically bequeathed the remainder was to be reduced to cash and distributed percentagewise. The later instrument would only add an additional $15,000 legacy to Jimmy and Katy Idell without any inconsistency with the terms of the will; The circumstances of the execution and the substance thereof, we believe, clearly indicated an intent to make a testamentary disposition by decedent of some of her property without affecting the validity of her prior will. The intent of the decedent, not militating against any prior actions, can and should be given effect if otherwise made in compliance with statutory provisions regarding the execution of wills and codicils.

Passing to the question of whether the instrument was executed with the requisite formalities, we note that no issue was raised as to whether the will and the purported codicil were signed by the decedent, Margaret F. Guinane. The complaint is that she did not use her full name in the latter document. It is well established that, in cases of this kind, the name used is not important as long as the person to whom it applies is identified as being the one having authority to act. In applying this principle, In re Will of Westerman, 401 Ill 489, 82 NE2d 474 (1948) on pp 492, 493, held that . . it is not necessarily the name used by the testator in the execution of his will, but it is the person to whom that name applies, that determines whose will it is.” The use of the name “Aunt Margaret” was sufficient and effective.

We find no merit to the contention that the document was not witnessed in decedent’s presence, as required by statute (Ill Rev Stats 1963, c 3, § 43). Judy Claus was present at all times, when the document was written and when she signed. Kenneth Bridge signed on a table in the doorway of the decedent’s room some 12 to 15 feet from her bed where she was propped up. The decedent had an opportunity to see for herself, without a change of position, that Bridge was signing his name to the instrument in accordance with her written request for witnesses. The attestation which the law requires is that the testator have the opportunity of seeing the very act of attestation. “All authorities declare that the object of the law is to prevent fraud and imposition upon the testator or the substitution of a surreptitious will, and to effect that object it is necessary that the testator shall be able to see and know that the witnesses have affixed their names to the paper which he has signed and acknowledged as his will.” Walker v. Walker, 342 Ill 376, 383, 174 NE 541 (1931). We believe the statutory and legal formalities required were satisfied in this regard.

In considering the executrix’s further contention that the execution of the instrument by decedent was not witnessed by two or more witnesses, we find that Sec 69 of the Probate Act (Ill Rev Stats 1963, c 3, § 69) providing for the admission of a will or codicil to probate, requires that each of two or more witnesses to the instrument testify “that he was present and saw the testator . . . sign the will in the presence of the witness or that the testator acknowledged it to the witness as his act.” Judy Claus testified she was present and saw the decedent sign the codicil. Kenneth Bridge testified that he read the instrument in the presence of the decedent and signed as a witness after seeing the direction therein to get a couple of witnesses to sign. “[I]t is not indispensable to a proper attestation that the testator sign in the presence of the witnesses; nor is it essential that the witnesses see the signature of the testator upon the face of the will, or even that they know the instrument they are witnessing to be a will. The statutory requirement is satisfied if the testator acknowledges the execution of the will.” (Authorities cited.) Conway v. Conway, 14 Ill2d 461, 468, 153 NE2d 11 (1958).

In the instant case, the facts and circumstances are more evident of acknowledgement than in Conway. The witness Bridge was in decedent’s presence, she could have seen him sign, the instrument contained words of disposition, her signature was thereon, together with her initial after a direction to get witnesses to sign. “Any act, sign or gesture will suffice which indicates an acknowledgement of the instrument with unmistakable certainty. It is enough if the testator acknowledges to the witnesses, either by words or acts, that the instrument in question is his act and deed.” Conway v. Conway, p 468.

The executrix also contends that undue influence could be presumed from the circumstances and facts indicating Mrs. Idell’s relationship to the recipients and her participation in the execution of the codicil. Section 69 provides that the instrument not be admitted to probate if there is proof of fraud, forgery, compulsion or other improper conduct which, in the opinion of the court, is deemed sufficient to invalidate or destroy it. The requirements for the admission of a will or codicil to probate are set forth in the statute and when the statutory requirements are complied with no others can be prescribed. Shepherd v. Yokum, 323 Ill 328, 332, 154 NE 156 (1926). As held in Shepherd, proof that the testator was not under any undue influence is not essential to a prima facie case, nor is undue influence one of the enumerated grounds of the proviso which will warrant a refusal to admit a will to probate. Undue influence is a ground for contesting a will or codicil but not for resisting its probate. 323 Ill 328, 338.

We believe the formalities and requirements of the statute were sufficiently complied with to admit the codicil to probate. That part of the order admitting it is affirmed.

Affirmed.

BURMAN, P. J. and MURPHY, J., concur.

       Fowler’s position: A semierect position obtained by raising the head of the bed and by pillows. (Gould’s Medical Dictionary.)

       Although the document bears the date 9/25/64, all parties agree it was executed on 9/24/64 and no issue was raised as to the date as it would have been immaterial anyway. (Conway v. Conway, 14 Ill2d 461, 468, 153 NE2d 11.)


text:
    In the Matter of the Estate of Scott Wheeler, Deceased. First Methodist Church of Western Springs, Illinois, and the Trustees of the First Methodist Church of Plano, Illinois, Appellants, v. Russell E. Owens, Appellee.
    Gen No. 50,303.
    First District, First Division.
    December 13, 1965.

      Eugene F. Parker, of Aurora, and James O. Basta, of Oak Park, for appellant.
    Herrick, Vette, McNeill & MeElroy, of Chicago (William T. McNeill and Moore W. Peregrine, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court.

The First Methodist Church of Western Springs, Illinois, and the Trustees of The First Methodist Church of Plano, Illinois, specific legatees under the Last Will and Testament of Scott Wheeler, deceased, appeal from an order entered in the Probate Division of the Circuit Court directing decedent’s executor to pay the inheritance tax levied on property of a revocable inter vivos trust created by the decedent, which trust property vested in one Russell E. Owens, upon the death of the decedent. The chronology of essential events is as follows:

On June 22, 1956, the decedent, Scott Wheeler, established a trust with the Chicago Title & Trust Company, as trustee, wherein he was beneficiary of the proceeds with full power to assign any or all right, title and interest or dispose of any or all of them. He retained the right to revoke, alter or amend the provisions thereof relative to the person or persons who might be entitled, from time to time, to the ownership and enjoyment of any beneficial interest thereunder. He did provide that in the event of his death, during the existence of said trust, all such right, title or interest, not previously assigned or otherwise disposed, should vest in said Russell E. Owens, if he be then living. Thereafter, on three different occasions, he amended the trust but each time confirming his right to the whole thereof and only making changes as to the beneficiary or person to whom the trust assets should pass in the event of his death and in the event the trust were in existence. The final amendment was made on December 4, 1958, and the assignment was to Russell E. Owens, if he survived the settlor.

On December 11, 1958, one week after the last amendment, Scott Wheeler, the decedent, executed his Last Will and Testament. The aforementioned legatees were among those listed therein. The significant and pertinent part of the will essential to disposition of the issues herein was Article Nine which read as follows:

I direct my Executor, hereinafter named, to pay out of the principal of my estate, or to make deposits therefrom to secure such payments, all estate, inheritance, transfer and succession taxes, including any interest and penalties thereon, which may be assessed in any way by reason of my death, and I hereby waive on behalf of my estate any right to recover from any person any part of such taxes so paid.

Scott Wheeler died April 5, 1963, and the will was admitted to probate. The inter vivos trust property passing to Russell E. Owens was assessed at $67,500 and inheritance tax thereon set at $8,384.

Owens filed a petition in the probate estate to bhave the executor directed to pay the Illinois inheritance tax assessed on the trust property. The executor filed answer thereto requesting that he be relieved of any duty or obligation to pay the tax. He alleged that the assets of the estate were insufficient to pay in full the specific bequests of the will; that the residuary legatees would receive nothing, and if required to pay the tax on the property left to Owens, the specific legatees would suffer a further reduction.

The matter was submitted to the court on the petition, answer, brief and arguments of counsel. The court entered the order and only these specific legatees appeal.

The parties, on appeal, agree (a) that the initial burden of Illinois inheritance tax is placed on the successor to the property, be he legatee, devisee, donee or beneficiary (In re Estate of McCalmont, 16 Ill App2d 246, 262, 148 NE2d 23 (1958)); (b) that our courts have held a testator may, by appropriate terms in his will, shift the burden of the inheritance tax on property passing under his will, and provide that such taxes be paid out of general or residuary estate or out of a particular fund. (In re Estate of Betts, 2 Ill App2d 453, 119 NE2d 801 (1954)); and (c) that no Illinois cases have dealt with the specific question of whether a testator may shift the burden of Illinois inheritance tax from property passing outside of the will. Thus, the issues raised in this appeal are (1) whether an executor may, by appropriate language in a will, be compelled to pay the Illinois inheritance tax on property which passes upon the testator’s death but which is not an asset of the probate estate; and (2) whether the language used in Article Nine of the Last Will and Testament of Scott Wheeler is sufficient to so indicate.

The legatees in this appeal contend that “it is the intent of the Illinois inheritance tax laws that each legacy shall bear the tax due thereon.” They cite In re Estate of McDonald, 314 Ill App 148, 150, 41 NE2d 128 (1942), where the court said: “Under inheritance tax laws, such tax is not considered one of the expenses of administration, or a charge upon the general estate of the decedent. It is in the nature of a tax upon the right of succession to be imposed upon the several amounts to which the successors thereto are entitled, and is a charge against each share or interest according to its value and against the persons entitled thereto [citing authorities].” From this they argue that in the absence of authority permitting the burden of inheritance tax on nonprobate property to be shifted to the executor the Revenue Act (Ill Rev Stats 1953, c 120, § 378) itself should govern and the burden of tax remain on the recipient.

The legatees, however, admit that all Illinois cases are in accord with another principle set forth in the McDonald case, namely, that:

It is considered competent for a testator to specify what property shall assume the burden of inheritance tax on the transfer or the right of succession of his estate. For example, he may provide that such taxes shall be paid out of the general or residuary estate, or out of a particular fund. Since the effect of such a provision is to increase the gift, the intent of the testator to make such a gift will not be drawn from vague or uncertain language. The question depends upon the intent of the testator as set forth in his will. 28 Am Jur 137, par 280 (p 150).

The Illinois cases hold, without exception, that the intention of the testator to shift payment of the taxes, if indicated by appropriate language in his will, is controlling. The cases draw no distinction between testamentary and nontestamentary assets or transfers. And we can find no reason for such distinction so long as the testator’s intention is clearly manifest. That the recipient or beneficiary of the property is the primary obligor is undenied, but the state is not concerned with who actually pays so long as payment is made. Owens recognized this and therefore proceeded by petition to direct the executor to pay in his behalf in accord with the testator’s intention. It is our opinion that a testator can shift the burden of payment of the inheritance tax on nonprobate transfers as well as transfers within the probate estate,

The basic issue therefore is: Was it the testator’s intention that the inheritance taxes on the inter vivos trust property passing to Owens be paid out of the probate estate? The intention must be ascertained from the language of the will itself and where the language on its face has a clear and unmistakable meaning, that meaning will be taken as the expression of his intention. Tortured constructions will not negate the intention expressed on the face of the will. Peck v. Drennan, 411 Ill 31, 38, 103 NE2d 63 (1952).

The legatees say that certain language may be clear and unambiguous when used in one context and yet when used in another context may be ambiguous and unclear. Such, they argue, is the issue regarding the language in Article Nine of Wheeler’s will. It is clear, they say, regarding payment of taxes on probate assets and unclear regarding payment on nonprobate property. Therefore, they contend, failure to identify the inter vivos trust specifically in the will is an important fact in support of the conclusion that the testator did not intend that his executor pay the inheritance tax levied against it.

We cannot agree with this contention. Article Nine directed the executor to pay out of the principal of his estate “all estate, inheritance, transfer and succession taxes . . . which may be assessed in any way by reason of my death. . . .” (Emphasis added.)

In re Halle’s Will, 270 NY App Div 619, 61 NYS2d 694 (1946), the court considered the words of the will: “I direct that all inheritance, estate, transfer and succession taxes be paid out of my residuary estate.” In holding that this provision clearly expressed the intention that taxes upon two joint bank accounts were included and were to be paid by the executor, without reimbursement from the beneficiaries, the court said (p 696): “The interest of decedent in said bank accounts passed by transfer or succession upon her death, up to which time they remained her property and subject to her control. The direction in the will for the payment of taxes is as broad and comprehensive as would seem possible. It directs the payment of 'all’ estate, transfer and succession taxes as well as inheritance taxes. We do not consider that the intention of testator [sic] to include taxes on the bank account was made uncertain or rendered doubtful because broad and all inclusive language was used. Conceding that more explicit words of narrower scope could have been used, skillful draftsmanship frequently calls for the use of broad language in preference to a narrower form.”

The language of Article Nine, before us, is all inclusive and clear. It included all . . . taxes ... assessed ... in any way ... by reason of testator’s death. The inter vivos trust was in his exclusive control and remained his property until his death. Having passed by reason of his death, it was subject to inheritance taxes.

Central Trust Co. of Cincinnati v. Lamb, 74 Ohio App 299, 58 NE2d 785 (1944) dealt with an inter vivos trust which passed upon the death of the donor. The law cast the tax burden upon the beneficiary of the trust. In deciding the donor’s intent expressed in her Last Will and Testament as follows: “I further direct my executor to pay as expenses of administration all inheritance, succession and estate taxes that may be levied or assessed by reason of my death,” the court said (p 789):

Testatrix plainly said that not part, but “all inheritance, succession, and estate taxes that may be levied or assessed by reason of my death” shall be paid by her executor as expenses of administration. . . . Obviously, she had in mind her taxable estate, the technical words of inheritance, succession, estate taxes were used ... by particular design. By reaching out to indulge a technical rather than ordinary construction of the words “my estate” to upset the plain, all-inclusive language used, would, it seems, defeat rather than ascertain the meaning of the language used, taken in connection with the will as a whole and the surrounding circumstances at the time of the execution of the will. The law presumes that the testatrix knew the succession to the trust corpus was taxable when she made her will, and the words “my estate” being subject to a latent ambiguity and less clear [referring further to the words of the will “no such tax shall be charged by my executor against the shares of the principal or income of any beneficiary of my estate”], will not be construed to change the clear statement of intent that all taxes arising by reason of her death were to be paid by her executor as expenses of administration.

We hold that the language in the will before us in the case at bar indicated a clear intention on the part of the testator to shift the burden of inheritance taxes assessed upon the inter vivos trust to the principal of his probate estate.

For the reasons herein expressed the order of the Probate Division of the Circuit Court is affirmed.

Affirmed.

BURMAN, P. J. and MURPHY, J., concur.


author: JUSTICE MURPHY.

text:
    People of the State of Illinois ex rel. Carol Gracia, Plaintiff-Appellant, v. Stanley Garrison, Defendant-Appellee.
    Gen. No. 50,495.
    First District, First Division.
    December 13, 1965.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, and Ronald Butler, Assistant State’s Attorney, of counsel), for appellant; No briefs filed for appellee.
   Opinion by

JUSTICE MURPHY.

Not to be published in full.


author: MR. JUSTICE MURPHY

text:
    Rose Carlson, Individually and as Administrator of the Estate of Sarah Finley, Deceased, and Rita Pletsch, et al., Plaintiffs-Appellants, v. Dell Publishing Company, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 50,400.
    First District, First Division.
    December 13, 1965.

      John H. Galgano and Patrick A. Barton, of Chicago, for appellants.
    Tenney, Bentley, Guthrie & Howell, of Chicago (Stephen J. Nagy, of counsel) for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a right of privacy action brought by the administrator of the estate of Sarah Finley, deceased, and nine children of the decedent, against the defendant owner and publisher of a magazine known as “Front Page Detective.” Plaintiffs appeal from an order which allowed defendant’s motion to strike the amended complaint and dismiss the action.

The two count amended complaint shows that Sarah Finley died on March 20, 1956. In the July 1956 issue of the magazine, defendant published a story of Sarah Finley’s rape and murder, entitled “This Brick With My Regards.” The photographic copy of the story incorporated in the amended complaint starts with a two page picture of the murder suspect autographing a common house brick. In bold letters across the picture appeared the words, “I Cracked Her On The Head A Few Times Then Lighted A Match To See How Bad She Was Hurt. WOW! She Must Have Had A Very Thin Skull.”

The article proceeded in narrative form to describe the condition of “the body of the lady in the gay red slippers . . . found sprawled in the desolate wind-swept alley at dawn.” Portrayed were the thoughts passing through the mind of the police sergeant summoned from headquarters, and it set forth the presumed dialogue between the policemen concerning the similarity between the present and several earlier slayings.

The article contained a picture of a detective at the side of the body beside a picture of the decedent taken during her lifetime. The story related the finding on decedent’s body of a nickel and two pennies in coin and the name and serial number of a soldier at Fort Leonard Wood, Missouri. It told how the police called the soldier and described the reaction and words of the 23-year-old son of the victim when the dead woman was described to him. It stated his mother was Mrs. Sarah Finley, 62-year-old widow and mother of twelve grown children, who lived with an older son on South Union Avenue, a short walk from the death scene. The police conversation with the older son at South Union Avenue was related, wherein he gave the name of a sister, Rita, together with the personal habits of the decedent.

In Count I, it is alleged that the article “maliciously defamed and tended to blacken the memory of Sarah Finley, then deceased, . . . ,” and caused great mental suffering to plaintiffs. Count II alleges that the article “was published and circulated without the consent of the plaintiffs and against their desires, and constituted an invasion of the privacy of plaintiffs and resulted in great mental suffering to plaintiffs.”

In substance, plaintiffs contend “private individuals have a cause of action for being brought back into the limelight by magazine publication of a tragedy no longer newsworthy,” and the occurrence, more than three months previous to the publication, was no longer news. “The publication was a story designed to appeal to the idle and prurient,” and “brought the plaintiffs out of the solitude which it was their right to enjoy. This invasion of their right to privacy is the basis of the suit. They had a right to let time heal their wound and not to have the wound reopened solely for the defendant’s selfish motives.” Cases cited to support plaintiffs’ claim that they have a cause of action for invasion of privacy include Eick v. Perk Dog Food Co., 347 Ill App 293, 106 NE2d 742 (1952); Annerino v. Dell Pub. Co., 17 Ill App2d 205, 149 NE2d 761 (1958); Smith v. Doss (Ala), 37 So2d 118 (1948); Wagner v. Fawcett Publications, 307 F2d 409 (CA 7th, 1962); and Hazlitt v. Fawcett Publications, 116 F Supp 538 (1953).

In Illinois, recognition of a cause of action for violation of the right to privacy was established initially in Eick v. Perk Dog Food Co., 347 Ill App 293, 106 NE2d 742, where it was held that the plaintiff had a clear right to be protected against the use of her photographic likeness in order to further a commercial enterprise. The fact that her damages were exclusively the result of her mental anguish did not defeat her right. On page 299, it was said:

“Basically, recognition of the right to privacy means that the law will take cognizance of an injury, even though no right of property or contract may be involved and even though the damages resulting are exclusively those of mental anguish. A person may not make an unauthorized appropriation of the personality of another, especially of his name or likeness, without being liable to him for mental distress as well as the actual pecuniary damages which the appropriation causes. The right of privacy is, of course, limited in cases of express or implied consent and in areas of legitimate public interest.”

In Annerino v. Dell Pub. Co., 17 Ill App2d 205, 149 NE2d 761, the widow of a detective, who had been killed by a gangster, sued to recover damages on account of the use of her photograph in a publication, which retold the story in an article entitled “If You Love Me, Slip Me A Gun.” In holding the complaint stated a cause of action for an unwarranted invasion of plaintiff’s right of privacy, the court said (p 210):

“Plaintiff here has made the publication an essential allegation of her complaint. . . . There is no difficulty in ascertaining that what plaintiff complains of is not news reporting, but the use of her photograph in connection with a ‘story’ which makes a strong appeal to the idle and prurient. This is sufficient to raise a question of fact.”

Defendant’s theory is that the plaintiffs’ rights of privacy were not invaded because the article neither identifies the plaintiffs nor substantially publicizes them; defendant was privileged to publish the article in question because it contained information of legitimate public interest and news; neither the literary style adopted by defendant nor the fact that defendant made money by selling its publication defeats that privilege. Defendant also asserts the amended complaint alleges no facts showing that the article is untrue; it contains no allegations that defendant’s article is fictionalized; no plaintiff’s full name appears in the article; it mentions neither the first name nor the last name of nine of the plaintiffs.

Initially, we find that the administrator here has no cause of action for libel or right of privacy of the decedent as related to a publication which occurred after her death. As the alleged defamation occurred after her death (Count I), it cannot be considered as an action which survived her or as part of her estate, capable of being pursued in some fashion for either her heirs or legatees. Furthermore, “slander and libel” are statutory

exceptions to the actions which survive the death of a deceased person. (Ill Rev Stats 1963, c 3, § 339.) Also, there can be no cause of action for right of privacy on behalf of decedent’s estate (Count II). It is obvious that mental anguish of the decedent, an essential element here, cannot be proved for something that occurred after her death. There can be no causé of action for right of privacy on behalf of her estate. See Maritote v. Desilu Productions, Inc., 345 F2d 418, (CA, 1965), where it is said (p 420):

“It is anomalous to speak of the privacy of a deceased person. The telecast did not mention any plaintiff here and hence the privacy of no plaintiff was invaded by defendants. . . . Comment, fictionalization and even distortion of a dead man’s career do not invade the privacy of his offspring, relatives or friends, if they are not even mentioned therein.”

Considered next is the right of privacy of the children of the decedent. Plaintiffs contend that the article was no longer news and therefore untimely. Cited is Wagner v. Fawcett Publications, 307 F2d 409, where it appears in an opinion given on rehearing that the court had previously held “the trier of facts could find that the articles published by defendants months after the death of Mary Lou Wagner had ceased to be news.” However, on rehearing, the court took judicial notice of proceedings in the Criminal Court of Cook County, which facts “belatedly establish that when the articles in question were published by defendants their subject matter related to current news,” and for that reason “the district court did not err in dismissing plaintiff’s complaint. . . .” (p 411.)

In Rozhon v. Triangle Publications, Inc., 230 F2d 359 (CA 7th, 1956), the court said, in discussing an article published five months after a death:

“In our opinion Frank Rozhon had been catapulted into an area of legitimate public news interest. . . . Against the factual background, shown by the record before us, we hold that the timeliness of defendant’s revival of the story did not present an issue which had to be submitted to the jury.” (pp 361, 362.)

It should be noted that a magazine is not geared to concurrent publication of newsworthy events as is a newspaper. If it be conceded that magazines are privileged to feature newsworthy events, a four-month interval between the happening of a newsworthy event and its publication in a magazine does not appear to be significant in determining whether the event had lost its newsworthy value. We hold that the publication of the article here was timely. See, also, Bradley v. Cowles Magazines, Inc., 26 Ill App2d 331, 168 NE2d 64 (1960).

As to identification of plaintiffs, defendant argues that “in the case at bar, without independent knowledge of the plaintiffs and their family relationships, it is impossible to identify the plaintiffs. The article alone does not identify them. No plaintiffs’ full name appears in the article. It mentions neither the first name nor the last name [of nine] of the plaintiffs. The tenth plaintiff and a woman identified in the article as the [decedent’s] married daughter have the same first name—Rita. No picture of any plaintiff appears in the article. . . . Only information not contained in the article could link these plaintiffs with the murder of Sarah Finley.” We agree.

In Jenkins v. Dell Pub. Co., 251 F2d 447 (CA 3rd, 1958) the court stated (p 450):

“. . . the interest of the public in the free dissemination of the truth and unimpeded access to news is so broad, so difficult to define and so dangerous to circumscribe that courts have been reluctant to make such factually accurate public disclosures tortious, except where the lack of any meritorious public interest in the disclosure is very clear and its offensiveness to ordinary sensibilities is equally clear. . . .”

In Bradley v. Cowles Magazines, Inc., 26 Ill App2d 331, 168 NE2d 64, this court declined to extend the right of privacy to provide damages for the anguish of a mother, caused by a publication concerning the death of her son. In remarking that plaintiff was not featured nor substantially publicized, the court noted that the article referred to plaintiff, gave her address and stated that she was the mother of the murdered boy.

In the light of the foregoing pronouncements, we conclude the amended complaint does not state a right of privacy action on behalf of the decedent’s children. The article is not shown to have been untimely nor does it show an appropriation of the personalities of the decedent’s children, either by name or by likeness. Their personalities are not substantially featured nor does the article contain or purport to contain a photographic likeness of any one of them.

Finally, plaintiffs contend “the court erred in not allowing the suggestions of plaintiffs to dismiss the motion of defendant for delay.” This contention is based upon the premise that under the rules of the trial court, it was the obligation of defendant to secure a ruling on its motion to dismiss within 90 days after it was filed. In view of our determination that the amended complaint does not state a cause of action, the instant contention is not material.

For the reasons given, the order appealed from is affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE BURMAN

text:
    Lillian Sumral, Plaintiff-Appellee, v. Chicago Transit Authority, Defendant-Appellant, and Corina Lunsford, Defendant-Appellee.
    Gen. No. 49,961.
    First District, First Division.
    December 13, 1965.

      William J. Lynch and William S. Allen and Jerome F. Dixon and Paul Denvir, all of Chicago, for defendant-appellant.
    Hertz, Robbins & Schwartz, of Chicago (Allen D. Schwartz, of counsel), for plaintiff-appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is a personal injury action arising from a collision on June 6, 1956, between a Chicago Transit Authority bus and an automobile driven by Mrs. Corina Lunsford. The plaintiff, a passenger on the bus, was injured and brought suit against both the C. T. A. and Mrs. Lunsford. The-jury, after hearing conflicting testimony as to the circumstances of the collision, found the C. T. A. liable to plaintiff in the amount of $10,000, but absolved Mrs. Lunsford from liability. The C. T. A. has taken this appeal from the judgment against it. Plaintiff has not appealed the judgment in favor of Mrs. Lunsford, nor has the C. T. A. filed a cross appeal.

The first contention made on appeal is that the verdict of the jury was against the manifest weight of the evidence. Mrs. Lunsford’s version of the accident, which was corroborated by a passenger in her car, was that the bus struck the left side of the rear bumper of her car as she was proceeding east on Roosevelt Road at about 20 miles per hour. She further testified that the bus had been behind her on Roosevelt Road at all times. The bus driver, however, testified that Mrs. Lunsford’s car struck the bus as he was closing the doors after having stopped to discharge a passenger at Spaulding Avenue; and that the bus was not moving when the accident occurred. The plaintiff testified that because the bus was crowded she was forced to stand on its front steps, facing the driver; that after the bus had stopped at Spaulding and had travelled a short distance, she heard a scraping sound on the right side of the bus; and that when she turned to see what was causing the sound, the door of the bus shattered inward upon her, injuring her.

The C. T. A. argues that no other conclusion can be drawn from the testimony except that the left rear bumper of the automobile “sideswiped” the bus. In view of the sharp conflict in the testimony as to the circumstances of the collision, we think this was a case specifically suited to determination by a jury. Slater v. Chicago Transit Authority, 5 Ill App2d 181, 125 NE2d 289. In reaching their verdict, they apparently believed Mrs. Lunsford and her passenger, and not the bus driver. Our review of the record leads us to the conclusion that the verdict against the C. T. A. was not contrary to the manifest weight of the evidence. Where a fair question of fact is raised by the proof, the Court on appeal will not set aside the jury’s finding as being against the manifest weight of the evidence. Hilbert v. Dougherty, 34 Ill App2d 174, 180 NE2d 699.

The C. T. A. next contends that the attorney for the other defendant, Mrs. Lunsford, made improper remarks in the course of his closing argument which were prejudicial to the C. T. A. and which denied it a fair trial. At the outset, it should be noted that the plaintiff and her counsel were not responsible for these remarks, and that Mrs. Lunsford, the party whose counsel did make the remarks, is not before us on this appeal. In any case, the remarks which allegedly implied to the jury that the C. T. A. failed to call its bus passengers as witnesses, were as follows:

Now with reference to how this collision occurred. We had one witness, so to speak, who spoke for the CTA and that is Mr. Hill [bus driver]. Now no one, no one saw this car before the collision and that is including Mr. Hill, and I will get to that point, and that is including Lillian Sumral.
Now here is a bus. Here is a bus driver east on Roosevelt Road with a full load, a standing load, with people seated in the seats by the right windows of this trolley bus. And they are trying to put in the version that a car came to the right of the bus, squeezed in between the bus and that is how the collision occurred; and a full load, a bus filled with people and no one saw this car.
Mr. Denvir [counsel for C. T. A.] : To which I object, your Honor, as to a bus full of people.
Mr. Perrelli [Counsel for Mrs. Lunsford]: And—. pardon me ?
The Court: All right.
Mr. Denvir: He had an opportunity to call any witness he wanted to. This is improper argument.
The Court: There is nothing in the evidence on that.
Mr. Perrelli: Don’t you think with all these people on this bus—
Mr. Denvir: Again, I object, your Honor. I believe you sustained my objection on this type of argument.
The Court: Sustained.
Mr. Perrelli: So I said they had only one witness and that is Mr. Hill.

In Ryan v. Monson, 33 Ill App2d 406, 179 NE2d 449, strongly relied upon by the C. T. A., the Appellate Court remanded the case for a new trial reciting a great many instances of improper conduct by counsel for one of the parties. One such incident condemned by the Court was a comment by counsel to the jury in closing argument that the plaintiff had failed to call a particular witness. The Ryan case, however, is readily distinguishable from the case at bar. In Ryan, the new trial was granted on the strength of a great many instances of deliberate, repeated, and highly prejudicial conduct by counsel in the trial court. The record in this case does not portray a similar degree of misconduct by counsel. We find nothing in the record which prejudically transgressed the limits of legitimate argument. Commonwealth Electric Co. v. Rose, 214 Ill 545, 73 NE 780.

The C. T. A. also contends that the attorney for Mrs. Lunsford, in his closing argument, made an improper reference to a deposition by Mrs. Lunsford, with the purpose and effect of conveying to the jury the impression that the contents of the deposition corroborated her testimony. In reliance upon the case of Bulleri v. Chicago Transit Authority, 41 Ill App2d 95, 190 NE2d 476, it is urged that such reference to a deposition which was not in evidence and which would have been inadmissible if offered constitutes reversible error. But here, trial counsel for the C. T. A. interposed his objection to this line of argument before opposing counsel could complete his remarks, and the objection was sustained. In our opinion, this remark had no adverse effect upon the jury.

Further objection is made to the admission of testimony by Mrs. Lunsford and by the passenger in her car relating to a conversation between Mrs. Lunsford and the bus driver immediately following the collision. Over repeated objections by counsel for the C. T. A., Mrs. Lunsford’s counsel elicited testimony to the effect that the bus driver told Mrs. Lunsford it was unnecessary to call the police, and that if the police came they would take away her license. The Court overruled these objections to the testimony, and the C. T. A. now urges that the testimony was inadmissible and that the Court’s rulings constitute reversible error.

The conversation between Mrs. Lunsford and the bus driver did not relate to the circumstances of the occurrence and was irrelevant to any issue in the case. It was therefore improper to elicit testimony as to this conversation. It should again be noted, however, that Mrs. .Lundsford is not before us on this appeal, and the improper conduct of her counsel cannot be attributed to plaintiff. But in any case, we are of the opinion that these remarks were not such' as would prejudice the jury, and therefore they do not necessitate a new trial.

A final contention made by the C. T. A. is that remarks of the trial judge made to the jury after a discussion in chambers went beyond the scope of his ruling and, in effect, nullified the impeachment of the plaintiff. We disagree. We have examined the record as to the conversation in chambers and the proceedings in open court and are of the opinion that the ruling, of the Court was not an erroneous statement of law. Furthermore, the controversy related to the question of damages, which is not in issue upon this appeal. No useful purpose will be served by discussing the details.

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

Judgment affirmed.

MURPHY and KLUCZYNSKI, JJ., concur.


text:
    Mary Sommese, Plaintiff-Appellee, v. Maling Brothers, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 50,286.
    First District, First Division.
    December 13, 1965.

      Jacobs and McKenna, of Chicago (Lloyd E. Williams, Jr. and Barry L. Kroll, of counsel), for appellant.
    Gunther & Choka, of Chicago (John M. Janewicz, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Defendant appeals from a $25,000 verdict and judgment awarded plaintiff, Mary Sommese, for personal injuries alleged to have been sustained when, on a rainy day, plaintiff, a prospective customer, fell in an entryway of defendant’s store. In answer to a special interrogatory, the jury found plaintiff not guilty “of any contributory negligence which was a proximate cause of said occurrence.”

Defendant’s contentions are: (1) Defendant was not shown to be negligent. (2) Plaintiff was guilty of contributory negligence as a matter of law. (3) The verdict and answer to the interrogatory were against the manifest weight of the evidence. (4) Prejudicial trial errors were committed.

Plaintiff’s action is based on the contention that defendant failed to provide a safe means of entrance for a business invitee and was negligent by one or more of the following acts: (a) It used a type of marble terrazzo flooring not suited for outdoor use. (b) It failed to use any abrasive in the terrazzo. (c) It failed to remove the accumulated water, (d) It failed to use rubber mats, (e) It failed to warn plaintiff that its entry way was dangerously slippery.

On February 27, 1958, plaintiff was 28 years of age. The kneecap of her left leg had been surgically removed less than three months previous. She was able to walk without assistance, do most of her own housework, and partake in recreational activities. She walked without a limp and suffered no pain or weakness of any kind. She was due to return to her employment within several days.

On the date in question, and after having had lunch with a friend, plaintiff walked into the south end of the “Harlem-Irving Plaza” and walked three and one-half blocks to defendant’s store at the north end of the Plaza. It had been raining periodically throughout the day. During lunch it rained quite heavily, and while plaintiff was walking through the Plaza it was drizzling. Plaintiff was without a raincoat, umbrella, galoshes or rubbers. She was wearing shoes with a “stack heel” about an inch and one half to two inches. The soles of her shoes had been “roughed up” by her husband with light sandpaper.

When plaintiff arrived at Maling’s, she took a look at the front windows. “I knew the shoes I wanted. . . . They were put on display in the window. ... I saw the shoes and then I started into the store. So as I continued walking on in, my foot slipped, the right leg, out in front of me . . . and I went down with my left leg completely under my body and the right leg out in front of me. . . . I felt my right leg slipping and I had tried to brace myself against the left window . . . and I just couldn’t reach it.”

On cross-examination, she testified, “When I turned the corner and started up into this entryway, it was wet. I saw water when I was just starting to walk into the entryway. The water began right at the edge of the sidewalk more or less continuing on to about halfway. . . . When I turned the corner and walked in there, the water that I saw on the floor, to my knowledge, extended all the way across. ... I was standing in water. I would say it covered the whole sole of my shoe. ... I had no trouble seeing in there. . . . The water appeared to be the same consistency all over. ... I was aware of the fact that there was another entryway to the store. I knew that when I came up to the front of the store. ... I have no idea whether the water came from rain or whether it was tracked in. All I know, it was wet. . . . I was looking at the floor. I saw it was wet. It looked very glassy. I didn’t know it was slippery.” She saw no “depression or indentation in the entryway.” The evidence indicates there was a slight incline from the door down to the sidewalk.

Plaintiff’s expert witness stated that he had been in the architectural profession for fifteen years. He had examined the floor surface visually and by feeling it with his hands. He testified that “it is a known fact that terrazzo, upon becoming wet, is very slippery. And I would not have used this type of installation for this entryway, without the addition of an abrasive material added to the mortar mix.” He also testified that he wetted the surface and rubbed it to see if he could detect any abrasive material. He stated, “If any abrasive material had been added it would have been apparent to my examination. . . . From that examination I could not tell that there was any abrasive material added.” The witness further stated he had used that type of floor “for interior uses” since “upon becoming wet it becomes very slippery and it is hazardous. . . . Often mats are used on top of the terrazzo to prevent its hazardousness on a rainy day.”

Five defense witnesses testified as to the occurrence and the floor condition at that time. A Cashier in the store, whose station was- just inside the door of the south entryway, stated she did not see plaintiff fall. She saw plaintiff standing in front of the store by the corner of the window. When she next noticed plaintiff, she was lying on the ground with her head on the sidewalk and her feet partially in the entryway. She could not see any puddles or collection of water in the entrance. There were no indentations or depressions in the floor. It had rained that morning, and it was drizzling in the afternoon and the wind was blowing. The store had no rubber mat to put down in the entryway when wet.

Defendant’s assistant manager testified that when he first saw plaintiff, she was lying on the sidewalk in front of the store. He did not recall seeing any puddles, large accumulations of water, indentations or depressions in the surface. A village employee testified that he was driving through the shopping center about noon and happened to see a woman standing near the showcase at Maling’s and just falling down or dropping down by the case. “It was a little slippery and a little wet from the mist where the people would track in the water as they were walking in and out of the store there. As to whether there were any large accumulations or puddles of water, no, there was no water or anything in there. . . . The floor was a little misty. ... I walked over those spots with the woman when I walked her into the store and I had to walk back out again. This was slippery.” The Plaza maintenance engineer said, “To my knowledge there were no puddles.” The Village Chief of Police said that he was called to the scene of the occurrence and did not see any puddles, accumulations of water, indentations or holes.

Defendant’s expert witness testified that he was a Professor of Metallurgical Engineering since 1954. He examined the floor with a machine used for testing slipperiness. It is a pendulum which attempts to simulate the glancing blow struck against the floor by a human foot wearing a shoe. The pendulum is started at an angle of 45 degrees and, therefore, if it faced no resistance, would swing up to 45 degrees on the other side. He tested a terrazzo, vinyl tile, ceramic tile, oak tile and asphalt tile floor. He stated that “the figure we came up with on the unworn spot in the Maling’s lobby when wet was an angle of 33 degrees. That is how far the pendulum swung on the upswing. The figures that I am giving you are the average of several tests on each floor. On the terrazzo floor the figure was 30 degrees. The figure for vinyl tile was 32 degrees and for ceramic tile was 26 degrees. The oak tile was 30 degrees. The asphalt tile was 35 degrees. These figures when taken together represent the relative slipperiness of each of these floors under circumstances under which I tested them. These figures represent the angle achieved on unworn wet surfaces for each of these types of floors.”

Initially, defendant argues, “The law in Illinois has continually and consistently been that, upon a showing such as this, the defendant, as a matter of law, is entitled to a verdict.” Defendant asserts that the trial court was in error in failing to enter judgment for the defendant, either by granting a motion for a directed verdict or by granting defendant’s motion for judgment notwithstanding the verdict. This presents the single question whether there was, in the record, any evidence which, standing alone and taken with all its intendments most favorable to plaintiff, tended to prove the material elements of her case. Evidence favorable to plaintiff’s case was all that could be considered by the trial court in this inquiry. (Garrett v. S. N. Nielsen Co., 49 Ill App2d 422, 426, 200 NE2d 81 (1964).) If there was a total failure to prove one or more of the essential elements of plaintiff’s case, specifically, as contended by defendant, due care on her part or negligence on the part of the defendant, the motion should have been allowed. Statements made in Carter v. Winter, 32 Ill2d 275, 204 NE2d 755 (1965), are in point (p 282):

“In determining whether defendants’ motion for a directed verdict should have been allowed, all of the evidence, when viewed most favorably to plaintiff, must totally fail to establish one or more essential elements of the case. . . . That proof by plaintiff of his own exercise of due care is essential to recovery is elementary. . . . [p 283] In our judgment, plaintiff’s own testimony . . . when viewed in the light of the rest of his testimony and that of the other witnesses, conclusively establishes his guilt of contributory negilgence as a matter of law. One cannot knowingly expose himself to danger and subsequently recover damages for an injury which, by the employment of reasonable precaution and circumspection, he might have entirely avoided.”

On this issue, defendant relies primarily on Murray v. Bedell Co., 256 Ill App 247 (1930); Clark v. Carson Pirie Scott & Co., 340 Ill App 260, 91 NE2d 452 (1950); Hartman v. Goldblatt Bros., Inc., 19 Ill App2d 563, 154 NE2d 872 (1958); and Brunet v. S. S. Kresge Co., 115 F2d 713 (CA 7th).

Defendant also cites authorities from many other jurisdictions which are substantially in accord with the statements made in Murray v. Bedell Co., 256 Ill App 247, where, in reversing a plaintiff’s jury verdict holding that a verdict should, as a matter of law, have been directed for the defendant, the court said (pp 249-251):

“The question appears to be whether or not, under such circumstances, a merchant is liable to an invitee upon such premises, where such invitee is caused to slip and fall by reason of mud and water upon the flooring of such a vestibule or entry. From the testimony of the plaintiff it is apparent that the danger, if any, was clearly evident to her, as well as the defendants, and that she was aware of the condition and of the possibility of sustaining a fall before she undertook to pass over and along the floor space of the vestibule. The condition described by the witnesses is one that is not only not unusual, but is customarily to be found on such days as described in the testimony, in vestibules of this character and the sidewalks and the premises surrounding entrances to public places. ... In the case at bar the plaintiff was as well apprised of the condition existing in the vestibule as the defendant, and should be held to as high a degree of care for her own safety as would be required of the defendant. ... We find that the facts show no such evidence of negligence on the part of the defendant as would be actionable at law.”

In Hartman v. Goldblatt Bros., Inc., 19 Ill App2d 568, 154 NE2d 872, the court said (pp 566-68) :

“Under these weather conditions is the owner of a store guilty of negligence merely from a wetness on the floor, when it does not involve any accumulation of water, ice, snow, or debris? The basis of recovery in personal injury cases is not merely that an injury was sustained, but that an injury was sustained because of the negligence of defendant. . . . Here there is neither allegation nor testimony that there were any hidden dangers. The wetness of concrete on which plaintiff slipped was plainly visible to all persons. ... It is clear from the cases discussed above that the condition alleged and proved did not constitute negligence. There was no breach of duty which defendant owed, nor did the condition indicate any absence of care according to the circumstances.”

In Brunet v. S. S. Kresge Co., 115 F2d 713, the court said (p 715):

“It is obvious in the case at bar that nothing was hidden from appellee, that she was well aware of the slippery and wet condition of the stairway as she started to descend it. She stated that she took hold of the banister as she started down because she realized that there was a possibility of falling. She presumed that her own galoshes were wet as she entered the store, having walked through the slush and snow, and she could see that there was slush and snow on the stairs tracked in by other people.”

Plaintiff asserts that many of the cases cited by defendant include factors not present here. We note that in Murray v. Bedell Co., the court said (pp 248, 249):

“There appears from the evidence to have been no defect in the manner in which this vestibule or entry was constructed. . . . [S] he noticed that there was mud and water on the flooring and that there was a slight incline, and that she knew that she would have to be careful.” [Emphasis supplied.]

Also, in that case, defendant’s doorman testified that “he squeegeed the vestibule” several times before the occurrence, and the court, after relating all of the foregoing, said (p 249) :

“The question appears to be whether or not, under such circumstances, a merchant is liable to an invitee upon such premises.”

In Hartman v. Goldblatt Bros., Inc., the court said (p 567) :

“Here there is neither allegation nor testimony that there were any hidden dangers. The witness of the concrete on which plaintiff slipped was plainly visible to all persons.”

In Brunet v. S. S. Kresge Co., the court, in discussing the duties of a storekeeper, said (p 715) :

“. . . and if there are hidden dangers upon the premises, he must use ordinary care to give persons rightfully upon the premises warning thereof. . . .”

Plaintiff argues that the evidence in the instant case established “that the entry was unsafe, that defendant had knowledge of the composition of its floor, and that no warning was given. It is clear that under Illinois law, as stated in the cases cited by defendant, the customer may recover from the storekeeper for injuries sustained as a result of the unsafe condition of defendant’s floor.”

As to affirmances of verdicts against defendants where plaintiffs fell on slippery inclines, plaintiff cites Lubin v. Goldblatt Bros., Inc., 37 Ill App2d 437, 186 NE2d 64 (1962); Burg v. Great Atlantic & Pacific Tea Co., 256 F2d 613 (7th C, 1958). Also, Minters v. Mid-City Management Corp., 331 Ill App 64, 72 NE2d 729 (1947), where plaintiff slipped and fell on a floor which was being mopped and dried. There, the court said (p 71):

“If there is any evidence, more than a scintilla, tending to prove the material averments of the complaint then it cannot be held, as a matter of law, that there is no liability where the suit is based on the claim of defendant’s negligence. ... If there be any difference of opinion on the question so that reasonable minds may not arrive at the same conclusion, then the question is one of fact for the jury. . . . And even where there is no dispute in the evidence but where inconsistent conclusions may legitimately be drawn the question is also one for the jury. . . . What is negligence or contributory negligence cannot be defined in exact terms. Each case must be determined from its particular facts.”

Plaintiff also asserts “the importance of defendant’s failure to take any precautions to either remove or reduce the hazard created by the accumulated water is emphasized by its failure to employ an abrasive in the terrazzo. Without an abrasive it is very slippery. Without an abrasive and wet, it is hazardous.” To support this statement, plaintiff cites authorities from other jurisdictions, including DeWeese v. J. C. Penney Co., 5 Utah2d 116, 297 P2d 898 (1956); Brody v. Albert Lifson 6 Sons, 17 NJ 383, 111 A2d 504 (1955); and Cardall v. Shartenberg’s, Inc., 69 RI 97, 31 A2d 12 (1943).

In DeWeese v. J. C. Penney Co., the “terrazzo” entrance of defendant’s store, which sloped upward, was “wet and had muddy tracks upon it,” and it was undisputed that there were no rubber mats or abrasives on the floor at that time. The court said (pp 900, 901):

“ [The expert witness’] testimony was to the effect that all terrazzo surfacing becomes slick when wet, and that abrasives are used in the composition to roughen it. It is not amiss to permit him to refer to his specific knowledge or observation of particular surfaces- in implementation and illustration of his statement that such abrasives were necessary and were customarily used. ...
“The essential inquiry relating to defendant’s negligence is whether in performing its duty of due care just recited, it knew or should have known, that a dangerous condition existed and whether sufficient time elapsed thereafter that, in due care, it should have put out the mats or sprinkled feldspar on the surface to reduce the slipperiness. . . .
“The argument is made that the effect of affirmance of this judgment will be to make stores such as defendant insurers- of the safety of their patrons, which argument we reject. ... We are only required to determine whether there was any legitimate basis in the evidence upon which reasonable minds could believe that the defendant failed to meet its standard of reasonable care under the circumstances for the safety of its customers.”

As to due care on plaintiff’s part, the court said (p 902) :

“Mrs. DeWeese was entitled to assume that the floor was reasonably safe. Though she saw dampness and muddy tracks thereon, there was nothing to give her warning that it was particularly slippery when wet and there is- no evidence that she was familiar with such fact. . . . Her testimony is susceptible of interpretation that she used the degree of care which ordinary and reasonable persons observe under such circumstances, which was the measure of her duty.”

In Brody v. Albert Lifson & Sons, plaintiff fell on a wet terrazzo floor, which contained no abrasive. There, the court said (p 507) :

“[T]here was evidence from which a jury could reasonably infer that the construction of the floor rendered it peculiarly liable to become slippery by virtue of introduction of water thereon and that the defendant omitted precautions which would have been practical or reasonable under the circumstances of this case.”

Examining the testimony presented in this case, together with all reasonable inferences legitimately arising therefrom and viewed from its aspect most favorable to plaintiff, we are not persuaded that there has been a total failure of proof of lack of due care on behalf of plaintiff or of negligence on the part of the defendant. As to due care, we believe reasonable men might differ as to whether plaintiff used that degree of care which ordinary and reasonable persons would have observed under the circumstances presented to her that day. It had been raining or drizzling most of the day. Plaintiff had walked three and one-half blocks in the Plaza to reach defendant’s store. It is a fair inference that she traveled this distance on wet surfaces, pavements or sidewalks, safely and without incident. On arrival at Maling’s store, she looked in the front windows, saw the shoes she wanted, and then started into the store. She saw the entryway was wet, “it looked very glassy,” and she saw no depression or indentation in the entryway. She noticed, also, there was a slight incline from the door down to the sidewalk. She testified that she did not know the floor was “terrazzo” without an abrasive, or that terrazzo without an abrasive and wet is “hazardous.” Reasonable men might differ as to whether plaintiff was entitled to assume that, after having walked three and one-half blocks on wet surfaces, the vestibule floor was reasonably safe to walk on, and that plaintiff was in the exercise of due care in proceeding into defendant’s vestibule. Questions which are composed of factors sufficient to cause reasonable men to arrive at different results should not be determined as matters of law. (Petricek v. Elgin, J. & E. Ry. Co., 21 Ill App2d 60, 68, 157 NE2d 421 (1959).) Whether plaintiff exercised that degree of care which was proportionate to the danger known to her at that time was a question for the jury.

On the issue of defendant’s negligence, it is not disputed that the entryway was of terrazzo composition with a smooth sloping surface, and that it had been raining or drizzling for some time, and some moisture had accumulated on the floor. Defendant did not mop or “squeegee” the surface or use any mats when the entryway was wet. The testimony of plaintiff’s expert witness was to the effect that he failed to detect any abrasive material on the surface of the floor, and that without abrasive material, exterior “terrazzo” floors, when wet, become very slippery and are “hazardous.” Whether it was negligence on the part of defendant, under the conditions portrayed by plaintiff, to fail to place rubber mats or mop or “squeegee” its terrazzo vestibule floor, which apparently did not contain abrasives, was a question for the jury.

We are not holding that defendant’s conduct amounted to negligence as a matter of law. We are only determining that there was a legitimate basis in the evidence upon which reasonable minds could believe that the defendant failed to meet its standard of reasonable care, under the circumstances, for the safety of its customers. DeWeese v. J. C. Penney Co. (Utah), 297 P2d 898 (1956).

We next consider defendant’s contention that the verdict is against the manifest weight of the evidence. Defendant argues that “plaintiff places the situs of her fall at a point about halfway in the entryway. Arrayed against this is the testimony of three disinterested witnesses, . . . The testimony regarding the condition of the entryway is even more antagonistic to plaintiff’s recovery.”

As to the situs of plaintiff’s fall, the record shows extensive examination of all witnesses on this issue. Defendant’s witnesses are not in accord as to where plaintiff was lying after her fall. The cashier said plaintiff was lying on the ground with her head on the sidewalk and her feet partially in the doorway. The assistant manager said she was lying on the sidewalk in front of the store. The village employee saw her in the process of falling, and she fell “right here on the corner where I am marking with a red pencil. . . . The lady’s head was facing south, up against the window.”

The cross-examination of plaintiff as to the condition of the entryway shows some discrepancy as to how much water had accumulated, its extent, and whether it touched the bottom of or whole sole of her shoes. These variations in plaintiff’s testimony and what probative value was contained in her testimony were jury questions, to be determined by the jury’s judgment of her credibility and the weight to be given to her testimony.

■ [8] We have examined, also, the colloquy between court and counsel which ensued when defendant’s counsel, for the purpose of impeachment, sought to question plaintiff about her answers given in a deposition taken some time before the trial. We find no abuse of discretion in the court’s ruling that her deposition answers as to the depth of the water were not impeaching.

Under the law-, we cannot disturb the verdict of the jury unless it is clearly against the manifest weight of the evidence. Manifest means clearly evident, clear, plain, indisputable. (Black v. DeWitt, 55 Ill App2d 220, 225, 204 NE2d 820 (1965).) From our examination of this record, we do not consider this to be a case in which an opposite conclusion to that of the jury is clearly evident. We find no merit in this contention.

Defendant next contends that prejudicial error was committed by plaintiff’s counsel in his closing argument to the jury “in explaining the significance and effect of the special interrogatory to the jury.” Plaintiff’s counsel told the jury that the special interrogatory had been submitted by the defendant; that the answer of the jury to the special interrogatory “supersedes the verdict”; and that the jury should harmonize their answer to the interrogatory with their verdict so as not to “deprive this woman of any right to recovery.”

In support of this contention, defendant cites Williams v. Norman, 347 Ill App 181, 106 NE2d 378 (1952) (Abstract opinion), where the Appellate Court reversed a plaintiff’s verdict because plaintiff’s attorney, in argument to the jury, stated specifically that a special interrogatory had been submitted by defendant through his attorney and then proceeded to present an argument to the jury as to what should be done with such interrogatory. After noting that an objection and motion for a mistrial were made and denied “at such time,” the court said:

“While it is proper for an attorney to argue the facts of the case, and discuss the evidence for the purpose of convincing the jury that under the evidence the interrogatory should be answered either in the affirmative or the negative, as the case may be, it was highly improper for the attorney to specify that the interrogatory had been prepared or submitted by defendant or his attorney. A jury should always be advised that instructions and interrogatories come from the Court, not from counsel.”

Plaintiff replies to this contention by pointing out that “counsel for defendant interposed no objection to either the reference to ‘defendant’s interrogatory’ or to any of plaintiff’s counsel’s argument with regard thereto.” Asserting that timely objections should have been made, otherwise the point is waived, plaintiff cites Cook County v. Colonial Oil Corp., 15 Ill2d 67, 153 NE2d 844 (1958), where it is said (p 75) :

“We have consistently held that experienced counsel cannot take a chance of failing to make objections and then, upon receiving what they consider an adverse jury verdict, claim error.”

Defendant cites Belfield v. Coop, 8 Ill2d 293, 134 NE2d 249 (1956), and People v. Morgan, 20 Ill2d 437, 170 NE2d 529 (1960), to show that if prejudicial arguments are made without objection of counsel or interference of the trial court, a reviewing court may consider such assignment of error “where the argument is so seriously prejudicial as to prevent the defendant from receiving a fair trial.”

Plaintiff’s reference as to the source of the special interrogatory was improper, and we assume that had objection been timely made, the trial court would have taken proper steps to offset the impropriety. As this record shows that defendant received a fair trial, we do not consider the improper argument of plaintiff’s counsel, in the absence of objection timely made, to be “so seriously prejudicial as to prevent the defendant from receiving a fair trial.”

Defendant complains that the trial court improperly refused to instruct the jury regarding the effect of a former statement inconsistent with present testimony as bearing upon the credibility of a witness. The refused instruction was IPI 3.01, in which it is said:

“The credibility of a witness may be attacked by introducing evidence that on some former occasion he made a statement or acted in a manner inconsistent with his testimony in this case on a matter material to the issues. . . .”

In support of this point, defendant cites five instances where plaintiff’s trial testimony and deposition testimony were not parallel. As previously noted, plaintiff’s testimony did contain variations which the trial court ruled were not impeaching. As we found no abuse of discretion in the court’s ruling, we do not consider that it was improper to refuse the instant instruction. Instructions given included IPI 2.01 on “Credibility of Witnesses.” This was sufficient here.

Finally, defendant argues that the amount of damages awarded the plaintiff are grossly excessive. The evidence shows that when plaintiff was 11 years of age, part of her left kneecap was removed. By the time she was 23 years old, she began having difficulty with her left leg. On December 2, 1957, a patellectomy was performed, a procedure whereby the patella (kneecap) is removed. Plaintiff was discharged from the hospital on December 18, 1957, and rehospitalized December 29, 1957. When she was discharged from the hospital on January 17, 1958, she had a limitation of motion in the left leg.

Plaintiff’s orthopedic surgeon, Dr. Robert D. Keagy, testified that plaintiff had not completely recovered from her operation when she fell, and that she was in the middle of her recovery period. When plaintiff was admitted to the hospital on February 27, 1958, the diagnosis was that she had a partial tear of the quadriceps muscle in the left leg. She was discharged on March 12, 1958, and readmitted on March 29, 1958. On March 30, 1958, she gave a history of a fall sustained on March 29, 1958. On April 1, 1958, plaintiff was operated on, and “a very extensive, essential complete tear” of the muscle was found. It was the opinion of Dr. Keagy that “if this quadriceps mechanism was torn significantly in this fall [February 27, 1958], it might very well cause a handicap with one continuous complete tear on some later day, but I would attribute it to the injury that started the tear process. . . . Like many tears they are fine as long as they are intact. If one piece, but one of these are tearing, it continues to tear with or without a fall. . . . whether the second fall caused the first tearing, I don’t really know. It could have.”

Dr. Keagy further testified that plaintiff was discharged from the hospital on May 9, 1958. On January 9, 1959, she told him that she had fallen in her home in October 1958. On October 9, 1959, her complaints with respect to her left leg were very similar to those she complained of prior to December 2, 1957. On August 31, 1962, plaintiff told Dr. Keagy she had fallen August 30, 1962. She had doubled her left leg under her, and she came to the emergency room because she had severe pain in the knee and thigh and calf going into her great toe. On May 20, 1963, Dr. Keagy examined the plaintiff and found that she had ability to flex her left leg 120 degrees out of a possible 135 degrees, or a loss of 15 degrees. He found that her right thigh was one inch larger than the left, and her left calf was slightly smaller than her right. He found that her walk was normal. Dr. Keagy testified that 50% of all of plaintiff’s difficulty with her left leg was due to her problem with her patella, and 50 % of her difficulty was due to all that happened to her after the patellectomy. In 1963, he found that she had some bursitis in the left knee.

The evidence as to plaintiff’s total medical expenses shows $1,547 as a result of the February 27, 1958, fall: $250 of this represents Dr. Keagy’s bill, $383.90 represents the hospitalization immediately following the February 27, 1958, fall, and $914 represents the hospitalization for the fall on March 29, 1958. Plaintiff returned to work on June 1, 1958, and her total wage loss for three months was approximately $700.

As to her condition at time of trial, plaintiff testified, “I have just encountered going down the stairs in the past year and a half. I couldn’t do it prior to that. It had to be one at a time. ... I think I walk very good. I try to. I still get pains in my leg, mostly up on the thigh and around the calf part of the leg. The type of pain is a cramp, a tightening up. I have lost one or two days from work every few months or so. As to whether it is getting any better, I can’t answer that honestly because sometimes I feel that it is just starting to perk up and then all of a sudden I start getting the pain again. I have scars as a result of the surgery. I had an original scar from the first surgery. When I went back after the fall he had to reopen it up again, make the incision longer and also cut me along the side here for the tendons and muscle grafting.”

In considering the question of damages, “each verdict for a personal injury must be examined in the light of the particular injury involved, with humble deference to the discretion of the jury in making its determination and to the ruling of the trial judge on the post-trial motions.” (Lau v. West Towns Bus Co., 16 Ill2d 442, 158 NE2d 63 (1959).) The jury’s determination as to damages will not be set aside unless it is the result of passion and prejudice, “or is so large as to shock the judicial conscience.” (O’Keefe v. Lithocolor Press, Inc., 49 Ill App2d 123, 137, 199 NE2d 60 (1964).) Although the amount of the judgment appears to be high when compared with plaintiff’s monetary expenditures, this record does not indicate that the award resulted from passion or prejudice. The evidence shows repeated hospitalization of plaintiff, and pain and discomfort over a period of years prior to trial, and in Dr. Keagy’s opinion, “50 per cent of her present dis-function is attributable to the second major procedure.” The award is not clearly excessive, and we find nothing in this record to warrant our disturbing it.

For the reasons given, the judgment for plaintiff is affirmed.

Affirmed.

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