text:
    Patricia Corder, Plaintiff-Appellant, v. Gilbert Smothers, Defendant-Appellee.
    Gen. No. 67-12.
    Fifth District.
    August 28, 1967.

      Harris, Holbrook & Lambert, of Marion, for appellant.
    J. C. Mitchell, and W. A. Armstrong, of Marion, for appellee.
   EBERSPACHER, J.

This is an appeal from a judgment for the defendant in an action for personal injuries and property damages due to the alleged negligence of the defendant, Gilbert Smothers, in the operation of his automobile which collided with the automobile of the plaintiff, Patricia Corder.

At approximately one p. m. on September 27, 1964, plaintiff had turned off DeYoung Street onto North State Street, a north-south residential street in the city of Marion, and was proceeding north on that street at a speed of 20 miles per hour, across its intersection with Blinois Avenue, intending to turn right into the driveway of the home of a friend who resided on the east side of North State, north of its intersection with Blinois Avenue. The defendant had also entered North State Street at DeYoung Street, and followed the plaintiff at a distance of 25 to 30 feet, at approximately the same speed. It was raining and the pavement was slippery; both cars were traveling in the right-hand lane of the two-lane street, and there were no other cars immediately ahead. At a point less than 100 feet north of Blinois Avenue, defendant slid into the rear of plaintiff’s car, as plaintiff had started to make her turn, and had applied her brakes.

Plaintiff testified that she activated her right turn signal as she crossed the Blinois Avenue intersection, but stated on cross-examination that she activated the turn signal at approximately the same time as she applied the brakes, at a point about half the distance between the Illinois Avenue intersection and the driveway; the measured distance from the north side of Illinois Avenue to the south side of the driveway was 85 feet. She further testified that after the impact her car traveled approximately 25 feet and came to rest with the front end about even with the driveway. There was independent testimony that the point of impact was 18 to 27 feet south of the driveway. Plaintiff’s husband testified that when he got into plaintiff’s car to move it, after the collision, the turn indicator was on.

The defendant testified that he saw no turn signal, and that plaintiff’s brake lights illuminated just as plaintiff got to the driveway, when he was 25 to 30 feet behind plaintiff’s car, driving 20 to 25 miles per hour, that he applied his brakes as soon as plaintiff’s brake lights came on and that his car left skid marks 10 to 15 feet long on the wet pavement.

Both parties testified that their views were unobstructed from the time they turned onto North State Street, for a distance of more than 700 feet. However, the plaintiff testified that as she passed the Illinois Avenue intersection before the driveway, she looked into her rear-view mirror and saw no vehicles behind her. Upon collision, the front of the defendant’s car struck the right rear bumper of the plaintiff’s car. There was minimal damage to the plaintiff’s automobile, however, as a result of the impact, the plaintiff’s chest struck the steering wheel of her car. Upon these facts, some of them contradicted, the jury rendered a verdict for the defendant. The trial court entered judgment on the verdict, from which this appeal is taken.

The plaintiff alleges that the court erred in denying her post-trial motion for a judgment notwithstanding the verdict and her alternative post-trial motion for a new trial on the grounds that the verdict of the jury was contrary to the manifest weight of the evidence and that the court erred in instructing the jury.

Considering the alleged erroneous instruction first, the plaintiff argues that the court erred in giving defendant’s Instruction No. 5, (IPI 60.01), which provided:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
“No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only . . . after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement.
“A signal of intention to turn right . . . shall be given during not less than the last 100 feet traveled by the vehicle immediately to the rear when there is opportunity to give such signal.
"Any stop or turn signal when required herein shall be given either by means of the hand and arm or by a signal lamp or lamps or mechanical signal device. . .
“If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence.”

The plaintiff argues that the first two paragraphs of the cited statute are inapplicable to the facts of the case. She further argues that by giving the instruction the court permitted the jury to find that if the plaintiff failed to give a right turn signal during the last 100 feet before turning that she could be held to be guilty of contributory negligence. It is suggested by the plaintiff that the statute does not impose a duty on a driver to give a right turn signal during the last 100 feet when the driver is turning into a private driveway from the right lane of a two-lane highway if the vehicle does not cross into the opposite lane and if the opposite lane is free of traffic, since no other vehicle would be affected by such movement.

To bolster her argument, the plaintiff reasons that the statute imposes a duty on a driver to give a right turn signal during the last 100 feet only, in the words of the statute, “in the event any other vehicle may be affected by such movement.” (Ill Rev Stats 1965, c 95%, § 162.) Her argument continues that section 162(c) providing for the method of signaling a stop or decrease in speed does not contain the 100-feet requirement. Accordingly, she continues, since her decrease in speed rather than her turning was the movement which affected the defendant, there was no duty on her part to indicate her turn for the last 100 feet.

The plaintiff’s argument is more hypothetical than factual. The question of whether a lesser duty is imposed on a driver intending to decrease speed or stop than one intending to turn is a question we need not answer. The plaintiff herself testified that her intention was to turn, that this was her intention while traveling the last two city blocks, a distance of more than 700 feet, that she indicated this intention by her turn signal during approximately the last 45 feet, or not at all as claimed by the defendant.

Where an instruction is given in the language of a statute and it is pertinent to the issues presented to the jury, it should be regarded as sufficient, Becherer v. Best, 74 Ill App2d 175, 219 NE2d 371 (1966). There is no question but that the instruction is in the language of the statute. It is equally obvious that the instruction is pertinent to the issues.

It is clear that the statute under consideration relates to the duty of the driver to signal his intention when altering his movement. The legislative purpose is obviously to afford both approaching and following drivers the opportunity to adjust their movement to that of the signalling driver; it makes no distinction between a right turn and a left turn, but requires the same action on the part of the turning motorist for both a right and left turn. The General Assembly has not seen fit to place an exception in the statute requiring turn signals, when a stop or reduction of speed signal is given, when there is an opportunity to give the turn signal. There is no evidence that plaintiff was deprived of the opportunity to give the turn signal within the required 100 feet. As a result our interpretation of the statute, to make such exception, would not be warranted.

Section 62(a) provides that “No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety . . . This indicates a duty upon the part of the motorist who intends to turn from a public highway to first make a proper lookout to the rear to ascertain if motor vehicles are behind which may be involved in the event a turn is made. Here plaintiff looked but did not see, when according to the evidence she should have seen. In Piper v. Lamb, 27 Ill App2d 99, 169 NE2d 164, the court agreed with the contention that a motorist does not fulfil his duty under the law by merely indicating a signal for a left turn, but had the further duty of not making the turn until it was reasonably safe to do so. The same rule is applicable with reference to a right turn; and as the court stated at page 113 (page 170 NE2d) of that opinion, “However, the actions of the driver, . . . slowing down, braking, and signalling for a turn, all present the question whether it was reasonably safe to turn, and this question is one for a jury. Tabor v. Tazwell Service Co., 18 Ill App 2d 593,153 NE2d 98.

Accordingly, plaintiff had a duty to both give that statutory signal indicating her turn, and to determine whether it was reasonably safe to do so, and the jury was properly given the instruction.

The plaintiff next argues that the jury’s verdict was against the manifest weight of the evidence and that the court erred in denying her motion for a new trial for this reason. In this case there is ample evidence to support the jury’s verdict. The plaintiff testified that she indicated her intention to turn by her turn signal prior to commencing her turn. The defendant’s evidence was that there was no turn signal. Even assuming that there was a turn signal, it is uncontradicted that the turn signal was not given over the required distance as prescribed by our statute. The jury was clearly presented with a question of fact; i. e., whether the plaintiff’s acts or omissions contributed to the cause of the collision. The jury’s verdict indicates that they thought they did. To be against the “manifest weight of the evidence” requires that an opposite conclusion be clearly evident. Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717 (1957). The opposite conclusion is not clearly evident in this case. The trial court correctly denied the plaintiff’s motion for a new trial.

The plaintiff finally argues that the court erred in denying her motion for a judgment notwithstanding the verdict. A post-trial motion insofar as it seeks a judgment notwithstanding the verdict presents a single question. That question is whether there is in the record any evidence which, standing alone and taken with all intendments most favorable to the party resisting the motion, tends to prove the material elements of his case. Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847 (1951); Homines v. Illinois Motor Freight, Inc., 21 Ill App2d 380, 158 NE2d 97 (1959). As outlined above, the evidence was contradictory to say the least as to the question of fact of whether the plaintiff contributed to the cause of the collision. This court will not substitute its judgment for that of the jury. The trial court correctly refused to substitute its judgment.

For the foregoing reasons, the judgment is affirmed.

Judgment affirmed.

MORAN and GOLDENHERSH, JJ., concur.

       Our Supreme Court has recently pointed out its dissatisfaction with the rule heretofore used in determining when questions of negligence and contributory negligence become questions of law, i. e. only when all reasonable men would agree that due care had or had not been exercised. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504. There, they point out that there is at least a surface incongruity in a trial judge saying all reasonable men agree that the proof established the presence or absence of due care where 12 jurors have just reached a contrary conclusion, and that it is even more incongruous for reviewing courts to so state when the trial judge and jury reached the opposite result, or when the trial and reviewing courts disagree, or the members of a reviewing court disagree among themselves. In that case they pronounce the rule that judgments notwithstanding the verdict should be entered “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand,” and that the same rule should be applied in the direction of verdicts.


source: Caselaw Access Project

author: JUDGE BAUER

license: Public Domain

text:
    George J. Dolton, et al., and Franklin R. Dolton, Executor of the Estate of Grace M. Dolton, Deceased, Plaintiffs, v. The Village of Mundelein, a Municipal Corporation of the State of Illinois, Defendant.
    Gen. No. 67-5.
    Second District.
    September 5, 1967.

      Adeline Geocaris and George D. Karcazes, of Chicago, for appellant.
    Hall, Meyer, Fisher, Holmberg, Snook and May, of Waukegan, for appellees.
   JUDGE BAUER

delivered the opinion of the court.

This cause originated as a suit for declaratory judgment initiated by the plaintiffs against the Village of Mundelein, Illinois, seeking a finding that the zoning ordinance of the defendant Municipal corporation was, as it applied to the plaintiffs’ property, unreasonable and without substantial relationship to public health, safety or morals and was therefore arbitrary, unconstitutional and void as applied to the plaintiffs’ particular property.

The land site in question is located on a solid block bounded on one side by state route #63, on another by state route #176, and on the remaining two sides by two villages streets: Glenview Avenue and Bonniebrook Avenue. In land area, the property contains 2.18 acres and is improved by two residential buildings, one a ten-room frame house and the other a five-room frame home.

Immediately north of the subject property, lying within the Village of Mundelein, there is a gasoline service station. On the southwest corner of state routes #176 and #63, there is another gasoline service station; this corner is, however, located outside the limits of the village and its zoning character was determined by the Lake County authorities. South of this gasoline station there is a Medical Center located on property within the village. The property on the northwest corner lies without the village and is vacant. The character of the property to the immediate east and south of the subject property, although partially vacant, is zoned Br-2, (single family) and what uses are made of this land are of that character.

The owners of the property sought a rezoning from R-2 (single family) to B-2 (Business) District classification from the various authorities of the village but the petition for rezoning was denied and this law suit resulted.

During the course of the trial, the plaintiffs submitted a plan site which, in the barest of terms, set out a proposed use of the property under a B-2 (Business) zoning classification. This included a gasoline station on the corner of the property bounded by the two state highways and additional rather undefined business uses for the remaining portion of the land. No specific plans for any use were submitted by the plaintiffs or considered by the court.

In addition to the testimony relating to surrounding land use, which was substantially undisputed, there was considerable testimony, as usual in conflict, as to the highest and best use of the property. It is interesting to note that not a single expert witness for either the property owners or the village testified that the highest and best use was the present R-2 zoning.

Considerable testimony was adduced relating to the relative value of the property in its presently zoned status as compared to its value as a business tract and, also, the impact of a change of zoning would have on property values of the surrounding land.

The rule that a zoning ordinance is presumed valid, and the burden is on a plaintiff seeking to attack an ordinance, to prove by clear and convincing evidence that the ordinance is unreasonable and unrelated to public health, safety, or welfare is well established, (Hoffmann v. City of Waukegan, 51 Ill App2d, 241, 244, 201 NE2d 177 (1964).) It is also clear that where room for a reasonable difference of opinion exists regarding the validity of the ordinance, the courts will uphold the ordinance. (Wehrmeister v. County of Du Page 10 Ill 2d 604, 609, 141 NE2d 26 (1957).)

In the case at hand, however, the record overwhelmingly demonstrates that the zoning ordinance of the Village of Mundelein was unreasonable as it related to the land in question. The character of the surrounding property, the location of the state highways and virtually all the factors set forth in La Salle Nat. Bank v. County of Cook, 12 Ill2d 40, 145 NE2d 65 (1957) and the additional factors set forth in Sinclair Pipe Line v. Richton Park, 19 Ill2d 370, 167 NE2d 406 (1960) indicate clearly that the R-2 zoning was unreasonable. The trial court so found and we affirm such finding.

The decree, however, went beyond such a finding and, in fact, rezoned the property by enjoining the village from any attempt to prevent the plaintiffs from using the property for any use permitted under the B-2 (Business) District. (The decree provided for some exceptions which the plaintiffs had agreed they would not request.) The decree further provided that:

“An automobile service station and other business enterprises may be constructed on the subject premises in substantial compliance with plaintiff’s plan and site plan, identified as plaintiff’s exhibit No. 16, and the applicable building ordinance of the Village of Mundelein in effect at the date hereof.

The difficulty, of course, is that the exhibit referred to (plaintiffs’ exhibit No. 16) is, to quote the witness who prepared it, “a suggested layout.” No specific plans were submitted. The plaintiffs’ exhibit No. 16, being merely a brief sketch of a proposed use, meant that any admonition that buildings must be in “substantial compliance” must of necessity refer only to a general geographic position.

In effect, then, the decree purported to rezone the property in question from R-2 to B-2 zoning. In our opinion, the court had no power to do this. As was pointed out in Harshman v. City of DeKalb, 64 Ill App2d 347, 212 NE2d 146 at page 353:

“It is imperative that there be clear evidence before the court of the specific use to which the owner intends to develop his property and the order framed in reference to it.”

The judgment of the trial court is affirmed as to its finding that the existing zoning is void as it affects the subject property. Insofar as the order of trial court permits the owners to make improvements permitted under the business classification of the ordinance, it is reversed and remanded. The remandment is with directions that the trial court hear further and more specific evidence relative to the business use to which plaintiffs propose to devote their property and the compatibility of such use with the uses of the surrounding property.

Affirmed in part and reversed and remanded in part with directions.

DAVIS, P. J. and ABRAHAMSON, J., concur.


author: JUSTICE ALLOY.

text:
    People of the City of Kewanee, Plaintiff-Appellee, v. Pete Fischer, Defendant-Appellant.
    Gen. No. 67-19. (Abstract of Decision.)
    Third District.
    September 21, 1967.
    William E. Stewart, of Kewanee, for appellant; Fred J. Brown and Gregg A. Young, of Kewanee, for appellee.
   Opinion by

JUSTICE ALLOY.

Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    Mia Pushauer, Plaintiff-Appellee, v. Genie Demers, Defendant-Appellant.
    Gen. No. 51,346.
    First District, Third Division.
    August 24, 1967.

      Treacy & Breen, of Chicago (John J. Treacy, of counsel), for appellant.
    Martin J. McGuire, of Chicago (Robert J. Rafferty, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In an action for personal injuries the jury returned a verdict of $6,800 in favor of the plaintiff and judgment was entered thereon. Defendant appeals, alleging as error (1) that the judge dismissed prospective jurors on his own motion where there was no showing of cause; (2) that the court allowed evidence revealing that defendant had been an actress; (3) that the court refused to submit to the jury a special interrogatory tendered by the defendant with respect to contributory negligence; and (4) that the court submitted an improper instruction to the jury. The facts follow.

Defendant, who was driving a small English Ford with a stick gear shift, was proceeding north on Artesian Avenue in Chicago when she stopped for a stop sign at the intersection of Devon Avenue. Plaintiff was walking west on the south side of Devon Avenue. She testified that she began to cross Artesian Avenue within a designated crosswalk for pedestrians; that she saw the defendant’s car stopped three or four feet south of the left-hand white line of the crosswalk; that as she proceeded across the street the defendant’s car bumped her lightly; that she turned around and the car struck her again with greater force. Plaintiff testified that when she told the defendant she was badly hurt, defendant accused her of faking an injury to obtain insurance proceeds, but that after some conversation the defendant drove her to a police station and the police took her to the hospital. The plaintiff and a doctor testified as to her injuries. No point is made by the defendant as to the amount of damages.

Defendant, called as an adverse witness pursuant to section 60 of the Civil Practice Act, testified that she came to a stop behind the crosswalk; that being unable to see the traffic on Devon Avenue, she edged forward to gain a better view; that she did not see the plaintiff enter the crosswalk and became aware of her for the first time when plaintiff was only one foot away from her moving vehicle; that she immediately applied the brakes and that her car never struck the plaintiff. Defendant further testified that upon applying the brakes, she turned to look at her child in the rear seat; that her car did not lurch forward at that time; that she kept her foot on the brake pedal and did not disengage the gears or shift into neutral; that the first thing plaintiff said was “Watch where you are going,” and that she replied, “Where on earth did you come from?” and that they argued as to whether the plaintiff was in fact injured, and that the defendant finally agreed to drive plaintiff to the hospital.

Defendant first contends that the court erred in excusing three veniremen on its own motion before defendant had the opportunity to interrogate them. The objection appears to be that these veniremen might have been acceptable to defendant and not subject to disqualification for cause. Hence the plaintiff would have been required to exercise some of her peremptory challenges if she wished to exclude them. Defendant admits however that she cannot show prejudice resulting from the court’s action because plaintiff invoked only one of her peremptory challenges and had four remaining, which would have been sufficient to excuse the prospective jurors in any event. Counsel explained to this court in oral argument that he makes the point in the interest of the profession generally; that is, in order to restrain judges from making it a general practice to pick a jury for the parties. The right of the courts to expedite the selection of a jury has long been recognized. Supreme Court Rule 234, 36 E12d 85, provides:

“The judge shall initiate the voir dire examination of jurors by identifying the parties and their respective counsel- and briefly outlining the nature of the case. The judge shall then put to the jurors any questions which he thinks necessary, touching their qualifications to serve as jurors in the cause on trial. The parties or their attorneys shall be allowed a reasonable opportunity to supplement such examination, but shall not directly or indirectly examine jurors concerning matters of law or instructions.”

This procedure was also standard practice under the previous Supreme Court Rules, Ill Rev Stats, c 110, § 101.24-1 (1965). Clearly it is no longer expected of a judge in a jury trial that he shall sit like his “grand-sire cut in alabaster.”

In a case such as this, where no prejudicial error is charged, we see no occasion for determining the limits within which the trial judge may question prospective jurors. We note only that the court in the instant case acted fairly and wisely and that two of the three persons whom he dismissed had already indicated that they might be prejudiced in their evaluation of the issues in the case. In the light of the existing congested calendars, particularly in this branch of litigation, we consider it a wholesome and sound practice to have the judge discreetly direct the examination of jurors.

The second contention is that the court erred in allowing plaintiff’s attorney to question the defendant as to whether she had been an actress. In the course of the defendant’s testimony she made repeated emotional outbursts which appeared to the trial court and appear to us to have been histrionic. She called upon God as her witness and gloomily declared, “My word is no good in this court.” A conference was held in chambers on this phase of the case and there the court considered the matter in connection with plaintiff’s motion for a mistrial based on the fear that the jury would be moved to sympathy with the defendant because of her tears and her invocation to deity. The court denied plaintiff’s motion, but held that he could ask about her previous career as an actress. The background and personal habits of a witness are not ordinarily relevant. Hedge v. Midwest Contractors Equipment Co., 53 Ill App 2d 365, 202 NE2d 869; Marut v. Costello, 53 Ill App2d 340, 202 NE2d 853. But where such evidence may have a bearing on the credibility of the witness and explains histrionics and avowals of truth, it is relevant. The evidence was properly admitted in this case.

Defendant’s third contention is that it was error for the court to refuse to submit to the jury a special interrogatory dealing with the issue of contributory negligence. It is well settled that the submission of a special interrogatory is mandatory when it relates to an ultimate issue of fact which is in dispute. Moyers v. Chicago & E. I. R. Co., 43 Ill App2d 316, 193 NE2d 604. Plaintiff’s position however is that there is no evidence of contributory negligence and hence no reason to submit the tendered interrogatory. The resolution of this issue turns on an examination of the testimony and the applicable statute.

Plaintiff testified that she saw the defendant’s car stopped behind the white line of the crosswalk and that she began to walk across the intersection within the crosswalk. Nothing in the defendant’s testimony controverts this vital element of the plaintiff’s case. Defendant admits that she was stopped behind the crosswalk, that she was looking to her left to gain a view of traffic, that she edged forward, having seen no pedestrians, and that she first saw the plaintiff a foot from her moving vehicle. The parties agree that the intersection was controlled by stop signs and the relevant statute is as follows:

“ (c) Whenever stop signs . . . are in place at an intersection or at a plainly marked crosswalk between intersections, pedestrians shall have the right-of-way over drivers of vehicles. . . .” Ill Rev Stats, c 95i/2, § ni (1965).

In Rees v. Spillane, 341 Ill App 647, 94 NE2d 686, the court said (p 656):

“When the plaintiff undertook to cross Jefferson Street at the marked crosswalk . . . she had a right to assume that all automobiles being driven upon that street . . . would be operated with reasonable care and that they would be under such control that they would not collide with her. It would appear . . . that the plaintiff’s misfortune was due entirely to the negligence of the defendant.”

This is precisely the case here. There is no evidence that the plaintiff was negligent and it was therefore proper to refuse the tendered interrogatory.

Defendant’s fourth and final contention is that the court gave an improper instruction on the subject of proximate cause. Plaintiff points out that at no time during the conference on instructions did the defendant’s attorney object to the instruction in question. Failure to object to an instruction at the conference waives the right to raise that objection on appeal. Saunders v. Schultz, 20 Ill2d 301, 170 NE2d 163.

We find no error in the trial of this case.

Judgment affirmed.

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


text:
    Gary Acceptance Corporation, a Corporation, Plaintiff-Appellee, v. John Napilillo and Eunice Napilillo, Defendants-Appellants.
    Gen. No. M-51,422.
    First District, Third Division.
    August 24, 1967.
    Rehearing denied September 21,1967.

      Philip G. Bixler and Hector A. Brouillet, of Chicago (Philip G. Bixler, of counsel), for appellants.
    Philip S. Aimen and Morris Topol, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from an order denying the defendants’ petition under section 72 of the Civil Practice Act to vacate a default judgment entered against them.

Defendants, husband and wife, had given their note to the plaintiff for money borrowed in the sum of $3,300. The note was secured by a chattel mortgage on defendants’ station wagon and by a second mortgage on their home. Defendants paid $570 on the loan and on May 14, 1964, they filed a petition in bankruptcy. The plaintiff on default by defendants repossessed the station wagon and resold it for $1,600, leaving a maximum unpaid balance of $1,130 plus interest. Defendants scheduled the debt in the bankruptcy proceedings and were discharged therein on July 10, 1964. The first mortgage on defendants’ home was foreclosed by the mortgagee.

On August 7, 1964, the plaintiff brought an action in detinue against the defendants and in its complaint charged that the defendants were detaining “All household furniture, furnishings, radios, television sets and home appliances located in the residence at 5102 W. 63rd Place, Chicago, Illinois,” and asked for the return of the property or its value in the amount of $3,898.08 and damages for its detention on the inescapable presumption that it was the plaintiff’s property which was being detained. Nowhere, however, has the plaintiff made such a claim specifically nor has it denied the defendants’ claim that these household goods belonged to them, were scheduled as such in the bankruptcy proceeding and allowed as their personal exemption.

On August 17, 1964, the defendants were served with summons and telephoned their attorney who advised them to ignore the summons. As a result they did not file a defense nor did they appear for trial, and on October 13, 1964, the default judgment was entered ordering the restoration (sic) of the property described in the plaintiff’s complaint or payment of the value thereof in the amount of $3898.08 plus damages of one cent and costs.

On November 25, 1964, a detinue execution was issued commanding the bailiff to restore the property described in the plaintiff’s complaint to the plaintiff or if the property could not be found, commanding him to cause to be made of the defendants’ other property the sum of $3,898.08. This was approximately $600 in excess of the debt, with no credit for any payments made. The execution was returned unsatisfied. Thereafter a citation summons was issued, directed against the defendants, which was returned on September 14, 1965, marked, “Defendants not found.” On November 12, 1965, an alias citation summons was issued and served on the defendant John Napilillo, returnable November 30, 1965. When the defendant failed to appear at the hearing on the citation, the court entered an order against him to show cause why he should not be attached and punished for contempt of court in refusing to attend court and be examined. Defendant appeared on February 11, 1966, and was examined as to his property. The court then entered an order finding “No property found,” dismissed the citation and discharged the defendant on the ruling to show cause.

On February 21, 1966, plaintiff filed an affidavit for a wage deduction order. It recited the judgment obtained against the defendants and requested that summons and interrogatories be directed against defendant John Napilillo’s employer. The latter returned the interrogatory on February 28, 1966, stating that John Napilillo was earning $531.99 monthly, $79.80 of which was subject to the wage deduction order.

On March 28, 1966, defendants petitioned the court to vacate the default judgment of October 13, 1964. They alleged in their accompanying affidavit that the principal debt had been discharged in bankruptcy on July 10, 1964, and that the items listed in the detinue action had been scheduled and allowed as the defendants’ personal exemption. They further alleged that it was this fact and their attorney’s advice to ignore the summons that caused them to fail to answer the summons and subsequently to default. The petition was denied and this appeal was taken.

The issue before the court is twofold. It is whether at the time of the default judgment there existed a meritorious defense which, if known to the trial court, would have prevented the rendition of the judgment, and whether the petitioners exercised due diligence in the protection of their interests.

Defendants contend that their obligation to Gary Acceptance Corporation was scheduled and discharged in bankruptcy; that Gary Acceptance was duly informed of the bankruptcy proceedings and accordingly knew or should have known that the personal property sought in the detinue action had been adjudicated exempt under the Bankruptcy Act; that is, found to be worth less than $400. They argue that the court should apply equitable principles to prevent injustice and that the unconscionable circumstances attendant in this case dictate the application of such equitable principles.

Plaintiff contends that because this is an action in detinue to recover personal property and not an action in debt, the defendants’ discharge in bankruptcy is no defense. We find no merit in this contention. The gist of an action in detinue is that the defendant is wrongfully in possession of personal property which belongs to the plaintiff. There is nothing to show that the finance company had any interest in the personal property located in defendants’ home. Plaintiff’s claim against defendants was a personal debt that was properly scheduled and discharged in bankruptcy. To say that a creditor can avoid the consequences of having his debtor’s obligation discharged in bankruptcy merely by bringing suit under the label of detinue is to frustrate the purpose of the Bankruptcy Act. This is obviously what plaintiff is attempting. The discharge in bankruptcy constituted a meritorious defense that was available at the time of the default judgment and that would have prevented rendition of judgment. Plaintiff must have known that at the time the judgment was obtained.

Plaintiff further contends that the discharge in bankruptcy is an affirmative defense which must be raised by the defendants or waived and that section 72 cannot be used to provide relief to a defendant who has failed to assert his defense. Although it is true that section 72 is not intended to relieve a defaulting party of his own mistake or negligence, it does invoke 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. Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348. Due diligence, like reasonable care, is a relative standard of conduct. Courts look to the attendant circumstances to judge the diligence of the defaulting party. Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350; Park Ave. Lumber & Supply Co. v. Nils A. Hofverberg, Inc., 76 Ill App2d 334, 222 NE2d 49; Detres v. Rojo, 80 Ill App2d 38, 225 NE2d 100.

When it is clear from all the circumstances that a party has procured an unconscionable advantage through the extraordinary use of a court process, the court will excuse the defaulting party for what might otherwise be considered a lack of diligence. In such situations the ends of justice are best served by a contested hearing on the merits.

In the present case the defendants were served with summons only one month after they had obtained a discharge in bankruptcy, notwithstanding the fact that plaintiff’s claim had been scheduled in the bankruptcy proceedings and that plaintiff knew or should have known of the defendants’ discharge. Understandably confused by plaintiff’s resort to a detinue action, the defendants sought legal advice and were told by their attorney to ignore the summons, presumably because he considered the use of a detinue proceeding so far beyond reason that no court, being properly advised, would enter judgment in such case.

A further factor to be taken into consideration is the plaintiff’s failure to levy an execution until after the thirty-day period had expired. We have had occasion to express our views on this common strategy. Jansma Transp., Inc. v. Torino Baking Co., 27 Ill App2d 347, 354-355, 169 NE2d 829, 832. In that case we said (pp 354-355):

“While no duty is imposed upon a party or counsel to sue out an execution promptly in order to inform a defendant of a default within the thirty-day period, yet failure to do so is a circumstance which casts a cloud upon the entire proceeding. [Citation omitted.] On a petition to vacate, the court may properly take it into account in appraising the worth of the defense to the petition.”

It is our conclusion that this is a proper case for relief under section 72 and that the judgment should be reversed and the cause remanded with directions to vacate the default judgment entered on October 13, 1964.

Judgment reversed and cause remanded with directions to take such other and further proceedings as are not inconsistent with the views herein expressed.

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


author: MR. JUSTICE DEMPSEY

text:
    Frank Kedzierski, Plaintiff-Appellant, v. Elvina Kedzierski, Defendant-Appellee.
    Gen. No. M-51,622.
    First District, Third Division.
    August 24, 1967.

      Philip Conley, of Chicago, for appellant.
    Philip L. Howard and Melvin A. Weinstein, of Chicago, for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

This is an appeal by the plaintiff, Frank Kedzierski, from an order dismissing his forcible detainer action wherein he sought to gain possession of a certain apartment from his sister-in-law, the defendant, Elvina Kedzierski. The sole question presented for determination is whether or not the plaintiff’s cause of action was effectively barred by the doctrine of res judicata.

The plaintiff’s brother (and the husband of the defendant), Andrew Kedzierski, was designated as the beneficiary of a land trust created in September of 1955 and having as its res the real property located at 4948 West Drummond Place, Chicago. According to the terms of this instrument the entire beneficial interest belonged to Andrew but, if the property was not disposed of prior to his death, it was to pass to his brother Frank and Frank’s wife as joint tenants. The following year, 1956, Andrew and the defendant were married.

In January 1964 Andrew assigned his interest in the trust to Frank. The defendant did not join in the assignment and testified that she was not aware of the transaction. Andrew and the defendant separated in January of 1965, but the defendant continued to reside in the first-floor apartment of the building at the Drummond Place address. Separate maintenance and divorce actions were instituted by the defendant and Andrew respectively and, as far as the record indicates, are still pending.

It appears that there were two prior actions of forcible detainer brought against the defendant by the plaintiff before he had legal title of the property in question. One was instituted in March of 1966, and the other in April of the same year. On May 16, 1966, shortly after the second action was disposed of, the trustee transferred the legal title to the plaintiff and on May 19, 1966, the plaintiff served a demand for immediate possession of the apartment upon the defendant. This suit for forcible detainer followed.

At the trial the plaintiff introduced into evidence the original trust agreement, the assignment to him of the beneficial interest in the trust, the transfer of the legal title from the trustee, and a copy of the demand for possession. After these items were received in evidence the plaintiff rested his case.

The defendant testified that she was married to Andrew Kedzierski on September 8, 1956, that she was his wife at the time he assigned his interest to the plaintiff, and that they had separated in January of 1965.

It appears from the record that the attorneys representing the defendant brought with them to the trial the file of one of the prior proceedings. They explained to the trial court that the file proved that there had been a former adjudication of the same case and argued that the present action was therefore barred. In their efforts to persuade the trial court to dismiss the complaint the attorneys made such statements as, “Same facts, same people; same facts and the same situation . . . What they are trying to do is the theory of keep on filing lawsuits; what they call multifarious filing of lawsuits. . . .” “They are trying to dispossess a wife out of a home and both cases have been adjudicated in her favor. . . .” “These were the same evidence [sic] that was gone into originally. . . .” “They had a hearing . . . and were told she was an equitable owner of the property and the owner should not be dispossessed.” “. . . [T]his is a repeating proceeding before the same court. . . .” However, neither the file of the previous case nor the judgment entered therein was ever marked as an exhibit or introduced into evidence. In fact, there is nothing in the record before us to indicate that the trial judge read the contents of the file.

A cause of action once finally adjudicated by a court having jurisdiction of both the subject matter and the parties cannot be relitigated before the same or a different tribunal by the parties or their privies except insofar as they may attack the judgment by a direct appeal. Charles E. Harding Co. v. Harding, 352 Ill 417, 186 NE 152 (1933); Hanna v. Read, 102 Ill 596, 40 Am Rep 608 (1882). Under the doctrine of res judicata, sometimes labeled estoppel by judgment, all matters which were or might have been determined in the prior suit are barred in the later one. Smith v. Bishop, 26 Ill 2d 434, 187 NE2d 217 (1962); Schoenbrod v. Rosenthal, 36 Ill App2d 112,183 NE2d 188 (1962).

The corollary principle of collateral estoppel, or estoppel by verdict, is applicable when the subsequent cause of action differs from the prior one, but is between the same parties or their privies. Under this doctrine the former adjudication operates as a bar only to those points and issues actually litigated and determined and not as to those points and issues which might have been heard or decided. City of Elmhurst v. Kegerreis, 392 Ill 195, 64 NE2d 450 (1946); Chicago Title & Trust Co. v. National Storage Co., 260 Ill 495, 103 NE 227 (1913).

The burden of establishing the defense under either of the aforementioned principles is upon the party invoking it. Chicago Historical Society v. Paschen, 9 Ill 2d 378, 137 NE2d 832 (1956); Gillies v. Little Vermilion Drain. Dist., 401 Ill 344, 81 NE2d 916 (1948); Setliff v. Reinbold, 73 Ill App2d 208, 218 NE2d 814 (1966). The party raising the defense must show with clarity and certainty the parties, the precise issues and the judgment of the former action. Board of Directors of Chicago Theological Seminary v. People ex rel. Raymond, 189 Ill 439, 59 NE 977 (1901); White v. White, 28 Ill App2d 19, 169 NE2d 839 (1960); Ramsay v. Ramsay, 10 Ill App2d 459, 135 NE2d 172 (1956).

The defendant in the instant case failed to meet this burden. She did not introduce into evidence the record of either one of the former judgments and it was incumbent upon her to do so. People ex rel. McDonough v. Jarecki, 352 Ill 207, 185 NE 570 (1933); Inlet Swamp Drain. Dist. v. Anderson, 257 Ill 214, 100 NE 909 (1913); Citizens Savings & Loan Ass’n, Belleville v. Knight, 74 Ill App2d 234, 219 NE2d 355 (1966). The statements of her counsel, although they may have been accurate and sincere, cannot substitute for the essential proof of the existence, nature and scope of the former judgments.

The plaintiff complied with the notice requirements and produced evidence showing that he was rightfully entitled to possession of the premises. The burden then shifted to the defendant. She presented no evidence that either of the two prior forcible entry and detainer cases was the same as the one at bar and did not present evidence of the former judgments. Nor did she present evidence of any other defense which may have been available to her. The plaintiff’s prima facie case was not overcome and the judgment of the Circuit Court of Cook County must be reversed.

Reversed.

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


text:
    In the Matter of the Estate of Francisco Morentin, a Minor. Jose Morentin, Guardian of the Estate of Francisco Morentin, a Minor, Petitioner and Counter-Respondent Below, Appellee, v. Jose R. Vazquez, Respondent and Counter-Petitioner Below, Appellant.
    Gen. No. 51,252.
    First District, Third Division.
    August 24, 1967.

      Ralph M. Schelly, of Chicago, for appellant.
    Joseph A. Rosin, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Judgment for $10,000 was entered in favor of Francisco Morentin, a minor, in a personal injury action initiated by his father Jose Morentin as next friend, in which Joseph A. Rosin appeared as his attorney and tried the case. Satisfaction of the judgment was delayed by reason of a notice of attorney’s lien filed by Jose R. Vazquez, an attorney who claimed that he had been retained by the parents of the minor under a contingent fee contract. Jose Morentin as guardian of his son’s estate pursuant to an order of the Probate Court of Cook County petitioned that court to hold the lien claimed by Vazquez invalid. In response Vazquez cross-petitioned for enforcement of the lien. After a hearing the Probate Court declared the lien null and void and Vazquez has appealed.

Vazquez contends that the parents of the minor entered into a binding contract with him; that they wrongfully discharged him and retained another attorney and that he is entitled to receive as compensation one-third of the judgment, as stipulated in the contingent fee contract. The facts follow.

On March 3, 1959, Francisco Morentin, the 8-year-old son of Jose and Maria Morentin, was struck by an automobile. He suffered a fractured femur and was hospitalized for seven weeks. About an hour after the accident Jose R. Vazquez appeared at the Morentin home and introduced himself as an attorney. Mrs. Morentin had never heard of him prior to that time. Vazquez testified that he went to see Mrs. Morentin at the request of a neighbor named Esteves who called him on the telephone shortly after the accident. He further testified that he did not recognize the caller’s voice and could not recall whether the caller was a man or a woman. At any rate, Vazquez appeared at the Morentin home immediately after the accident, spoke with Mrs. Morentin and then produced a printed contingent fee contract which provided that he would receive 33% % of any recovery in the case. He testified that he explained the terms of the contract to Mrs. Morentin in Spanish before she signed it. She could not read, write or speak English. After signing the contract, she asked Vazquez not to do anything until she consulted her husband.

When the contract was introduced at the hearing on the attorney’s lien, Mrs. Morentin (speaking through an interpreter) acknowledged her signature but said that she did not understand what the document meant. She proceeded to testify that she was distraught when she signed it; that she had given birth to a child five days before the accident; that her father had died only a month before; and that the injury to her son added to her distraction and grief.

Vazquez testified that he had agreed to do nothing without first speaking to Jose Morentin. On March 4, 1959, however, (the day following the accident) he mailed a letter to the prospective defendant in the personal injury action, identifying himself as the attorney for Francisco and giving notice of an attorney’s lien. Vazquez further testified that he filed the notice of lien pursuant to a telephone conversation with a person who identified himself as Jose Morentin, and that this person had instructed him to proceed with the case. Jose Morentin denied making the call. He testified that he made one telephone call to Vazquez about two weeks after the accident at which time he informed Vazquez that he had retained another attorney.

On March 24, 1959, Vazquez filed an action in the Municipal Court of Chicago on behalf of Francisco Morentin. He admitted that although he maintained an office five blocks from the Morentin home, he did not know the extent of Francisco’s injuries when he filed the suit. He testified that he had been told by the parents that Francisco was all right and, as he put it, “I had to take his mother’s word.” He considered the case weak on the issue of liability. He did not interview any witnesses and he was afraid the defendant was uninsured. When the Morentins discovered that Vazquez had filed the suit in the Municipal Court, they filed a motion in that court to dismiss. Vazquez opposed the motion on the ground that he did not consider the Morentins competent to make such a decision. After a hearing, the court dismissed the suit on September 28,1959.

While the suit in the Municipal Court was pending, a law suit was filed in the Circuit Court of Cook County on April 11, 1959, in behalf of the minor. It was prepared, filed and tried by Joseph A. Rosin, an attorney. The verdict and judgment for $10,000 was obtained and shortly thereafter the Morentins filed the petition and obtained the order of the Probate Court holding Vazquez’s lien invalid.

In Illinois contingent fee contracts are carefully scrutinized by the courts. Pocius v. Halvorsen, 30 Ill2d 73, 195 NE2d 137; American Bar Ass’n Canons of Professional Ethics, Canon 13. The courts are concerned not only with the terms of the agreement, but with the question of solicitation as well and will examine the circumstances under which the contract was obtained to determine whether it was procured by overreaching or undue influence. The solicitude of the courts in this respect is evidenced by the rule of the Circuit Court of Cook County which now requires an affidavit of ethical conduct to be filed by counsel when commencing any action. Circuit Court Rule 0.9. Under this rule the attorney is required to swear that he has not directly or indirectly solicited employment.

An attorney is not incapacited from contracting with his client, but he has the burden of showing the utmost good faith, with complete disclosure on his part, complete understanding by the client of all the facts and the legal consequences thereof, and demonstrable fairness of the agreement reached. Bounougias v. Peters, 49 Ill App2d 138, 198 NE2d 142; Rose v. Frailey, 10 Ill 2d 514,140 NE2d 711.

The circumstances attending the execution of the agreement are highly questionable. Vazquez was a complete stranger to Mrs. Morentin and their only common bond was the Spanish language. Within one to four hours of the accident he induced her to sign a document which she could not read. She was completely at the mercy of his translation of the terms of the contract. She testified she did not understand it and the trial court believed her.

A reviewing court should not substitute its judgment as to the credibility of witnesses for that of the trial court unless the findings are manifestly against the weight of the evidence. Pittman v. Lageschulte, 45 Ill App2d 207, 195 NE2d 394. There is ample evidence that Mrs. Morentin could not comprehend the legal significance of the contingent fee contract. The finding of the trial court is not against the manifest weight of the evidence and therefore the judgment must be affirmed.

Judgment affirmed.

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


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Carl Wildey, Defendant-Appellant.
    Gen. No. 50,293.
    First District, Fourth Division.
    August 28, 1967.

      Harry J. Busch, of Chicago (Jason Ernest Bellows and Sherman C. Magidson, of Chicago, and John A. Graf, of Evanston, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assist-, ant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

The defendant, Carl Wildey, and LeRoy Hartle were indicted on June 29, 1962, for forgery. After a separate jury trial the defendant, Carl Wildey, was convicted of that offense and was released on probation for a period of five years with the condition that he repay the sum of $12,500 within ten months.

Contentions on Appeal

1. Defendant was not proven guilty beyond a reasonable doubt in that the principal witness for the prosecution was impeached;

2. Defendant was denied his right to a speedy trial, as required by the Four Term Act;

3. Defendant did not receive a fair trial.

Evidence

The following facts are not substantially in dispute. For a time prior to August 6, 1959, the defendant, Le Roy Hartle and one Carl Ruhl were in the insurance business in Blue Island, Illinois, in an insurance agency known as Hartford Enterprises. This company was the agent of the American Bankers Insurance Company of Florida, and it was also engaged in adjusting insurance claims. The defendant was president of Hartford Enterprises, Hartle was vice-president and Ruhl was another officer. In addition to Hartford Enterprises, the three had also set up another corporation known as WilHart Automotive Inc. The purpose of this business was to provide a garage to repair automobiles owned by insureds of Hartford Enterprises. Defendant was president of that company and Hartle was vice-president.

At this point the testimony diverges from agreement. Hartle testified that the garage business did not succeed and that he was instructed by defendant to prepare false claims in order to obtain money; that on August 6, 1959, he (Hartle) then took the insurance policy of Walter Krueger from the files, made up a fictitious statement of loss along with a repair bill and duplicate drafts, and signed the assured’s name to the statement of loss and the other supporting forms (which contained a description of a loss which never occurred), all without authority from Krueger, the assured. Hartle also prepared and signed the drafts on American Bankers, which were payable to Wil-Hart Automotive Inc. He then gave some papers relating to the claim to defendant, who checked them to see that they were complete and then crumpled them so they would look as though they had gone through an automobile repairman’s hands; the claim papers were mailed to American Bankers in Miami, Florida, where they were received in the normal course of business, processed and the draft deposited in the Beverly Bank by defendant. The draft was then honored by the Miami bank of American Bankers resulting in payment of the claim and a credit in the Beverly Bank account of Wil-Hart Automotive Inc. The drafts on American Bankers drawn in connection with the false statements of loss were all deposited by defendant in the Beverly account in which only defendant could make deposits and withdrawals and his signature was the only one authorized on checks relating to the business.

Hartle also testified that on prior occasions defendant had ordered other “phoney baloney” claims to be made in a similar manner.

At the trial defendant testified and denied his guilt. Defendant related his limited duties in the business, stating that he would come to the business in the morning, open the mail, make deposits, would make a few phone calls, go to lunch and then would not be at the office for the rest of the day. Defendant stated that he never told Hartle to draw false claims. He denied having crumpled or dirtied various claim papers. He admitted that he had control over the money belonging to the business, that he was the only authorized signature on the bank accounts, that only he could withdraw money or write checks on the Beverly Bank, and that he used the bank account to pay some of his bar bills. Defendant admitted the drafts “went into the bank account upon which I was the only signature that could withdraw the money after it went in.” He stated that he had started the Wil-Hart Account at the Beverly Bank with $1,000 of “his own money” but admitted that he withdrew it later. He admitted that he drew a salary of $500 per month from the business while Hartle drew no salary. “There were no checks paid to Hartle. He never drew a nickel. He would live off his income from the previous business.” He also stated that he was unsophisticated about the insurance business, but he acknowledged that he knew that the claim papers had to be sent to the Florida Insurance Company before the drafts would be honored.

Clarence Malloy and Robert Keleher, acknowledged business friends of the defendant, testified that Hartle had a poor reputation for integrity and honesty. Malloy, Keleher and two other witnesses testified that defendant had a good reputation.

Carl Ruhl testified in rebuttal and corroborated the testimony of Hartle. He stated that defendant controlled the business bank accounts; that he saw defendant crumple proofs of loss; that defendant would always check the proofs of loss to make sure they were complete and that defendant then made sure they were mailed so the drafts would be paid by the Beverly Bank. He further stated that on May 15, 1959, he saw Hartle give defendant a statement of loss and defendant put it and other documents on the floor and that defendant walked on them and rolled the castors of his office chair back and forth over them; that he heard defendant tell Hartle to prepare “some more of those phoney baloney claims.” Ruhl also testified that defendant had a poor reputation for truth and veracity.

I. Defendant first contends that he was not proven guilty beyond a reasonable doubt because the principal prosecution witness, LeRoy Hartle, was impeached. We would point out that Hartle’s testimony as to the facts concerning the crime was contradicted only by defendant. Two other defense witnesses, Keleher and Malloy, testified only as to Hartle’s allegedly poor reputation for truth and veracity. However, the reliability of their testimony was subject to question since (1) Keleher did not know where Hartle lived and had no association with businessmen having dealings with Hartle in 1959; (2) Malloy had no contact with neighbors or business people who had contact with Hartle; (3) Malloy employed Hartle in his insurance business subsequent to Hartle’s association with defendant; and (4) Malloy testified that he and Keleher secured an attorney for Hartle in the instant case and pending indictments.

The testimony of an accomplice is sufficient to sustain a conviction. People v. Nitti, 8 Ill2d 136, 133 NE2d 12. In that case the court stated at pages 138-139:

This State has always followed the common-law rule that the uncorroborated testimony of an accomplice, if it satisfies the jury . . . beyond a reasonable doubt, is sufficient to sustain a conviction of a felony .... We have, however, recognized that such testimony is not of the most satisfactory character and is attended with serious infirmities which require utmost caution in relying upon such evidence alone .... Such considerations go to the questions of the weight of the evidence or credibility of the witnesses, which questions are peculiarly the province of the jury ... in the first instance. The jury . . . has opportunities not possessed by a court of review, to form a correct estimate of the credibility of witnesses and the weight of their testimony. For these reasons if the jury ... is satisfied by the testimony of an accomplice, beyond a reasonable doubt, the judgment should not be set aside unless it is plainly apparent to the reviewing court that the defendant was not proved guilty beyond a reasonable doubt ....

Thus, in the instant case the credibility of LeRoy Hartle was for the determination of the jury. Defendant does not contend that the evidence is insufficient to establish his guilt if Hartle’s testimony is believed by the jury. The jury believed the testimony of Hartle and did not believe defendant’s denial of guilt. Therefore, we find that defendant was proven guilty beyond a reasonable doubt.

2. Defendant next contends that the trial court erred in denying his motion for discharge because he allegedly was not brought to trial within the time allowed under the Four Term Act (Ill Rev Stats 1961, c 38, § 748). That Act provides:

Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, or unless the court is satisfied that due exertion has been made to procure the evidence on the part of the People, and that there is reasonable ground to believe that such evidence may be procured at a later day in which case the court may continue the cause for not more than sixty (60) days. If any such person shall have been admitted to bail for an alleged offense, other than a capital offense, he shall be entitled, on demand, to be tried within four months after such demand: Provided, that if the court shall be satisfied that due exertion has been made to procure the evidence on behalf of the People and that there is reasonable ground to believe such evidence may be procured at a later day the court may continue the cause for not more than sixty (60) days.

Defendant was charged in the instant case with forgery in that he allegedly drafted and signed a false statement of loss in order to collect insurance proceeds in the amount of $174. The indictment was returned on June 29, 1962. Previously the defendant, on September 30, 1960, had been charged with embezzlement and conspiracy to obtain by false pretenses the property of an insurance company, in the amount of $30,000. The charge of embezzlement and conspiracy were dismissed under the Four Term Act on April 12, 1961. In his petition for discharge in the instant case defendant alleged that the monies involved in the cases which were dismissed were the same monies involved in the instant case; and that all facts in the instant case were known to the prosecuting authorities at the time of the institution of the charges in I960. From these allegations defendant contends that the purpose of the Four Term Act is to give legislative effect to the constitutional right to a speedy trial; that since the alleged forgery, and the embezzlement and conspiracy, arose out of the same act he should have been charged with the forgery initially (in 1960); and that therefore the prior discharge applies to the forgery indictment.

We do not believe that the defendant was deprived of his right to a speedy trial. The forgery trial, from which this appeal is taken, is not a continuation of the proceeding commenced in September 1960. It came after a separate and distinct indictment which was filed in 1962. Defendant does not contend on appeal that the prosecution for forgery has resulted in double jeopardy. Furthermore, section 3-3 of the Criminal Code of 1961 (Ill Rev Stats, c 38, § 3-3), effective January 1, 1962, which provides that under certain circumstances all offenses based upon the same act must be prosecuted in a single prosecution, is inapplicable to this case because its effective date was subsequent to the discharge of the original action.

As support for his position that he was deprived of his right to a speedy trial defendant cites Klopfer v. North Carolina, 386 US 213. In that case the petitioner’s trial on a North Carolina criminal trespass indictment ended with a declaration of a mistrial when the jury failed to reach a verdict. After the case had been postponed for two terms, petitioner filed a motion with the trial court in which he petitioned the court to ascertain when the State intended to bring him to trial. While this motion was being considered, the State’s prosecutor moved for permission to take a “nolle prosequi with leave,” a procedural device whereby the accused is discharged from custody but remains subject to prosecution at any time in the future at the discretion of the prosecutor. The Supreme Court held that the petitioner had been deprived of his right to a speedy trial. That case, however, is wholly inapplicable to the case at bar since in that case the accused could be tried at any time under the original indictment and thus there was an indefinite continuation of a pending indictment. In the instant case the forgery trial was not under the indictment of 1960. Rather, defendant was tried under a new 1962 indictment for forgery within the requisite time from the date of his arrest under that indictment. We therefore find that he was not denied a speedy trial.

3. Defendant next contends that he did not receive a fair trial arguing (a) that cross-examination of LeRoy Hartle was improperly restricted and (b) Carl Ruhl, a prosecution witness, was improperly allowed to testify in rebuttal.

With regard to the cross-examination of Hartle, defendant asserts that he was improperly restrained from questioning the witness concerning other indictments pending against him. An examination of the record reveals that defense counsel was allowed to bring out that seven other indictments were pending against Hartle for forgery and confidence game, but he was not allowed to inquire into the details of those alleged crimes. The court allowed defense counsel great latitude in his cross-examination of this area and we find that no error was committed.

Defendant next argues that Carl Ruhl was improperly allowed to testify in rebuttal. However, at trial defendant did not object to the overall testimony of Ruhl and the objection cannot be raised for the first time on review.

Holding on Appeal

We find that the defendant was proven guilty beyond a reasonable doubt and that he received a speedy and fair trial. Therefore the judgment of the trial court is affirmed.

Affirmed.

ENGLISH, P. J. and McCORMICK, J., concur.

       The codefendant, LeRoy Hartle, entered a plea of guilty.

       The State denied those allegations.


text:
    The People of the State of Illinois, Appellee, v. Thomas A. Vesley, Appellant.
    Gen. No. 51,915.
    First District, Fourth Division.
    August 28, 1967.

      John L. White and Robert K. Kelty, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

After a bench trial, defendant, Thomas Vesley, was found guilty of criminal damage to property. He was placed on probation for two years and, as a condition of probation, was ordered to serve the first 87 days in the County Jail and to make restitution in the amount of $349.78. Defendant was tried with Joseph Franco, a juvenile, whose case was subsequently transferred to the Juvenile Division of the Circuit Court.

On appeal, defendant contends; (1) The prosecution failed to prove that defendant caused damage to property; (2) the prosecution failed to prove venue; and (3) absence of counsel at the arraignment and at the hearing to determine sentence was a denial of defendant’s constitutional right to counsel.

The prosecution adduced evidence that on August 5, 1966, in the vicinity of Marquette Park, during a racial disturbance, complaining witness Galliday was driving west on Marquette Road approaching California Avenue. Rocks and bottles were being thrown at his car. When Galliday stopped for a line of traffic, defendant, a 24-year-old graduate student, and his companion, Franco, picked up a manhole cover, walked to the driver’s side of the car and threw it ten to fifteen feet in the air through the closed left window of the car, striking Galliday on the left shoulder. Defendant’s evidence consisted of a denial by both defendant and his codefendant, Franco, of having thrown the manhole cover.

Defendant contends that the prosecution failed to prove a necessary element of the crime: that he did damage to property. The prosecution’s first two witnesses, the arresting police officers, Hollingsworth and O’Malley, testified that the manhole cover went through the left window. Galliday testified that the window was up. This testimony, if believed by the trial judge, was sufficient to establish damage to property.

Defendant next argues that since there was no evidence as to monetary damages, there was no proper proof of damage to property.

In People v. Kelly, 66 Ill App2d 204, 214 NE 2d 290, where defendant was found guilty of larceny, we construed a penalty provision. This is similar in nature to the penalty provision applicable in the instant case. In Kelly, supra, we held that proof of value is not an element of a crime where the value of the property is only to be considered in assessing the penalty for that crime. Since we have determined in the instant case that there was sufficient evidence to support a finding of guilty for damage to property, we may take judicial notice that a manhole cover thrown through a car window would cause some monetary damage. Since defendant was found guilty of a misdemeanor (damage to property of a value of less than $150), proof of exact monetary damage was not required.

Defendant claims that the prosecution failed to prove the county in which the crime occurred and thus failed to establish venue.

Complaining witness Galliday testified that he was driving his car to 2756 West Marquette Road and as he approached California Avenue (2800 West) on West Marquette Road, the incident took place. Sergeant O’Malley testified that he was a member of the Chicago Police Department and that Galliday was driving west on West Marquette Road. Evidence of street name and number and that participating policemen are members of a city’s police department is sufficient to establish venue in the county of which that city is a part. People v. Pride, 16 Ill2d 82, 156 NE2d 551; People v. Washington, 81 Ill App2d 90, 225 NE2d 472.

Finally, defendant contends that he was denied his constitutional right to counsel because he was not represented by an attorney at his arraignment and later at the proceeding to determine the sentence.

The record shows that defendant was arraigned twice: once before he was assigned counsel, and once after. After the appointment of counsel, defendant was allowed to plead over and was also afforded another opportunity to demand a jury trial. Thus there was no denial of the defendant’s right to counsel at the arraignment.

The finding of guilty was entered on August 17, 1966. After the finding, the court ordered a “sitting out period” in the House of Correction until August 22. On that date the case was continued to August 24. At that time defendant appeared but his counsel was not present. The judge stated that at the time he had found defendant guilty, he “had grave questions in his mind as to a penalty”; that he had “made arrangements for a Sitting Out Period for six days in the House of Correction”; that he had set bond at $10,000; but that bond had been posted after three days. The judge then asked about the damages to the automobile, and the prosecutor stated: “On a note handed me, it indicates damages of $334.78 to the car.” The court then ordered defendant placed on probation for two years, the first 87 days to be served in the County Jail and restitution in the sum of $349.78 ($15 of which represented doctor bills) to be paid to the complaining witness.

Certainly the imposition of a sentence in a criminal case is a “critical” stage of the trial. Trimble v. State (Fla App), 170 So2d 452; People v. Amos, 21 App Div2d 80, 249 NYS2d 740; and State v. Strickland, 27 Wis2d 623, 135 NW2d 295. The Illinois Supreme Court has indicated that the right to counsel extends to all “critical” stages of the proceedings. People v. Morris, 30 Ill2d 406, 197 NE2d 433; People v. Bonner, 43 Ill App2d 42, 192 NE2d 568. See also White v. Maryland, 373 US 59, and Hamilton v. Alabama, 368 US 52.

In People v. Coffman, 83 Ill App2d 272, 227 NE2d 108, the absence of counsel at a proceeding to revoke probation was held a denial of the defendant’s right to counsel. In the instant case the judge made no inquiry about the absence of the Public Defender whom he had appointed to represent the defendant. He summarily proceeded with the hearing. While right to counsel may be knowingly and understandingly waived, we find no waiver here. The language of Coffman, supra, is singularly appropriate:

The record before us fails to show either that the defendant knew of those rights or that he was advised of them or that he knowingly waived them. Indeed it is a paradox in itself to say that you may knowingly and understandingly waive rights of which you have no knowledge.

The judgment of guilty is affirmed. The order admitting defendant to probation is reversed and the cause remanded with directions to hold a hearing on the application for probation and for such other proceedings as may be not inconsistent with this opinion.

Affirmed in part; reversed in part; and remanded with directions.

ENGLISH, P. J. and McCORMICK, J., concur.

       Ill Rev Stats 1965, c 38, § 21-1 (a):
      (a) Knowingly damages any property of another without his consent; . . .

       At the conclusion of the trial, it was determined that Franco was a juvenile and his case was transferred to the Juvenile Division of the Circuit Court.

       Section 16-1, c 38, Ill Rev Stats (1963):
      A person first convicted of theft of property not from the person and not exceeding $150 in value shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both.... A person convicted of theft of property from the person or exceeding $150 in value shall be imprisoned in the penitentiary from one to 10 years.

       Section 21-1, c 38, Ill Rev Stats (1965):
      Whoever commits any of the following acts shall be fined not to exceed $500.00 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both or for the commission of any act enumerated in subsection (a) or (f) when the damage to property exceeds $150 may be imprisoned in the penitentiary for not more than five years or both fined and imprisoned: . . .


author: MR. PRESIDING JUSTICE ENGLISH

text:
    John T. Fitzgerald and Helen A. Fitzgerald, Plaintiffs-Appellees, v. Ethel H. Brown, Defendant-Appellant.
    Gen. No. 50,208.
    First District, Fourth Division.
    August 30, 1967.

      Querrey, Harrow, Gulanick & Kennedy, of Chicago (John T. Kennedy, of counsel), for appellant.
    Coghlan, Coghlan and Joyce, of Chicago (John P. Coghlan, of counsel), for appellees.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

This is an appeal from a verdict and judgment in favor of plaintiffs for personal injuries sustained in an intersection automobile collision. On the basis of many points alleging trial errors, defendant contends that she is entitled to a new trial. Because we consider one such point sufficient to control our decision, we will not deal with the other points in this opinion.

The proposition we refer to is that, through action of plaintiffs’ counsel in cross-examination of a defense witness, the jury was repeatedly informed that defendant was covered by insurance, resulting in the probability that the jury’s verdict was prejudicially influenced. Plaintiffs must concede that the general rule, long ago well established in this state, is that the fact of insurance coverage is not to be presented to the jury in a personal injury case. Wiersema v. Lockwood & Strickland Co., 147 Ill App 33. They argue, however, that four exceptions to the general rule are applicable here: (1) defendant had first brought out mention of defendant’s insurance, (2) insurance may be shown to demonstrate the interest of a witness in the outcome of the litigation, (3) because the defense was “pregnant with fraud and concealment,” the broadest type of cross-examination was authorized, and (4) defendant’s motions for mistrial were insufficient to reach the error claimed.

All of the controversy over the interjection of the existence of insurance arose during the testimony of an automobile repairman named Schroeder. An important part of the defense to plaintiffs’ action lay in defendant’s claim that, after working well throughout the morning and on previous days, the brakes on her husband’s car suddenly gave out as she tried, unsuccessfully, to stop at a red light and thus avoid hitting plaintiffs’ car which was just then going through the intersection. By the witness Schroeder, defendant introduced testimony that after defendant’s Lincoln had been brought to his shop, he “checked the car out” and discovered a ruptured brake hose. He further testified that the damage sustained by the car in collision with plaintiffs’ automobile would not have caused the hose to break; that when such a brake hose does rupture, there is no indication to the driver that it is about to happen and that the brakes are about to fail.

Near the beginning of Schroeder’s testimony, he stated that when defendant’s car. was taken to his shop he had a mechanic named Viegel working for him. Defendant’s attorney then asked the witness what Vie-gel had done when the car came in. The answer was: “Nobody done anything to that car except the insurance company called me to check it out because it had brake failure.” Defense counsel could, of course, have moved to strike the nonresponsive part of this answer, but we do not believe he was required to do so and thus emphasize its prejudicial character which otherwise might have passed with little or no notice. However, while admitting that the mention of insurance in this answer was not responsive to the question, plaintiffs argue that the nonresponsive part of the answer could have been stricken on motion of defense counsel (though not on motion of plaintiffs’ attorney: Turck v. City of Chicago, 146 Ill App 472, 480; Merkle v. Bennington Township, 58 Mich 156, 24 NW 776 (1885)), and that, since he did not choose to have it stricken, it stands in evidence and opens the door for plaintiffs to pursue the matter further. In support, they cite Cooper v. Safeway Lines, Inc., 304 Ill App 302, 325, 26 NE2d 632; and Seyferlich v. Maxwell, 28 Ill App2d 469, 171 NE2d 806.

These cases are not pertinent here, and plaintiffs’ point is without merit. In the instant case there was no intentional introduction of the fact of insurance by defendant, as in Seyferlich, nor was plaintiffs’ pursuit of the question innocent in character, as shown by the non-responsive answer of a defense witness in Cooper. Here, we believe the record shows calculated and repeated attempts on the part of plaintiffs’ counsel to elicit further insurance mention before the jury for the obvious purpose of prejudicial influence.

On cross-examination, plaintiffs’ attorney asked the witness who had asked him to inspect the brake. An objection was made, followed by an extensive conference in chambers. The attorney for defendant apprised both plaintiffs’ attorney and the court that he had objected because he believed counsel was seeking to bring out the fact of defendant’s insurance. Plaintiffs’ attorney took the position that if a representative of defendant’s insurance company had ordered the brake inspection, “it becomes competent evidence and it may not be stricken.” He appears to have based this position upon his contention that part of the brake hose exhibit was missing from the time he had first seen it in the hall outside the courtroom, and that the insurance company had taken the car from the scene of the accident and had delivered it to the witness’ shop. After outlining this argument, he submitted to the court that fraud was thus apparently present, and restated his belief that it had become "competent evidence for them for the mentioning of insurance.”

The court then overruled defendant’s objection to the pending question (as to who had asked the witness to inspect the brake). Whereupon, defense counsel again represented to the court that “this witness will blurt out, ‘The insurance company of the Browns,’ ” and suggested, in order to avoid a mistrial, that the witness be instructed to answer, “a representative of the Browns.” The court rejected the suggestion, and in the presence of the jury the question was reread. The witness answered, “The insurance company asked me to inspect the brakes. I think it was the adjuster. I am not sure. I can’t recall the name of the man right now.” Interspersed in this answer was the motion of defense counsel to withdraw a juror, which was promptly overruled. Consistently thereafter, the cross-examiner continued with the same type of questions and elicited the same type of answers. He asked the witness who had phoned him about the car, and was told it was the State Farm Insurance Company. He asked who took the car away from the shop, and was told it was the State Farm, with their tow outfit. He asked who had taken the broken brake hose from the witness’ desk, and was told it was the adjuster. On each of the occasions just recited, defense counsel made timely motions for a mistrial and his motions were all denied.

Giving due consideration to this record of forewarned persistence in pursuit of prejudice, it is our opinion that plaintiffs’ point of defendant’s having introduced the first mention of insurance (through a nonresponsive answer), is rendered weightless. Kelley v. Call, 324 Ill App 143, 57 NE2d 501, and Williams v. Consumers Co., 352 Ill 51, 185 NE 217, cited by plaintiffs, are distinguishable. See, rather, Bishop v. Chicago Junction Ry. Co., 289 Ill 63,124 NE 312.

Plaintiffs next contend that insurance may be disclosed in order to show the interest of the witness in the outcome of the case, arguing by analogy from the permissiveness recognized in demonstrating the bias or interest of witnesses generally. They also rely on Seyferlich v. Maxwell, 28 Ill App2d 469, 476, 478, 171 NE 2d 806, as authority to introduce insurance in such a situation, but this reliance is misplaced for the reason mentioned above in this opinion.

This subject was treated in Guardado v. Navarro, 47 Ill App2d 92, 100-102, 197 NE2d 469, where we said at page 101:

. . . Without going so far as to concede a license to bring out the existence of insurance, as such, we do recognize the principle that when a written statement or transcript has been utilized in the impeachment of a witness for plaintiff, it is open to plaintiff’s counsel to show that the person taking the statement had an interest in the defense of the litigation. And this, in order to discredit the statement or rehabilitate the witness. It is ordinarily possible to do this, however, without eliciting the fact that the investigator was employed by an insurance company. The right to establish an adverse interest must not be used as a screen for the introduction of a prejudicial fact entirely outside the issues of the case.

See also Carlson v. Healey, 69 Ill App2d 236, 244-247, 215 NE2d 831.

As to plaintiffs’ claim that extremely broad cross-examination was justified because the defense was “pregnant with fraud and concealment,” let it first be said that this record is barren of any evidence of “fraud and concealment.” In any event, we fail to see how this contention is material to the interjection of insurance into the trial. The fact of insurance has nothing to do with alleged improper conduct of defense counsel, nor were the questions which elicited the prejudicial answers designed to shed any light on the part of the brake hose which was missing at trial. Surely, plaintiffs do not contend that mention of a representative of an insurance company is probative of fraud, whereas mention of a representative of the Browns is not. If plaintiffs mean to argue that introducing the fact of insurance makes it more probable that the jury will disbelieve and find against the defendant, then plaintiffs support our decision. If plaintiffs feel there has been fraud or deception by defense counsel, then other avenues of redress are available short of trying to prejudice the jury in this case. Schoolfield v. Witkowski, 54 Ill App2d 111, 203 NE2d 460, relied upon by plaintiffs, is distinguishable on several grounds.

Finally, plaintiffs maintain that the defense motion to withdraw a juror and declare a mistrial (made three times, immediately after each mention of insurance following a question asked by plaintiffs’ counsel) was “insufficient to reach the error.” Plaintiffs would require the defense to make specific objections by which the court could strike the offending testimony and instruct the jury to disregard the answers. In Carlson v. Healey, 69 Ill App2d 236, 215 NE2d 831, the defense motion for a mistrial was denied but the jury was instructed to disregard the fact of insurance (IPI No. 2.13). Nevertheless, a new trial was ordered by the reviewing court. Thus, the law on this point, where there has been such extensive and unwarranted interjection of insurance, remains the same today as it was in 1909 when the court in Wiersema v. Lockwood & Strickland Co., 147 Ill App 33, said at page 39:

... no instruction can cure the error. ... If counsel were permitted to resort to the practice of violating the law of evidence and then curing the violation by merely giving an instruction to the jury to disregard the unwarranted and illegitimate remarks made, the law of evidence would be useless and but a farce. Such instructions, usually, but make more emphatic the evil intended to be cured.

Additionally, it may be considered in this case that defendant’s objection to the first question (which resulted in the full discussion of the problem in chambers, with repeated warning by counsel of the probable consequences) could be viewed in the light of a continuing objection to all such questions, under the circumstances. ILP, Appeal and Error, § 213.

It is our conclusion that the record is sufficient to present to this court the error of which defendant complains. We also conclude that the point raised did constitute prejudicial error. The judgment is therefore reversed and the cause is remanded for a new trial.

Reversed and remanded.

DRUCKER and MCCORMICK, JJ., concur.