author: Mr. JUSTICE VERTICCHIO Mr. JUSTICE MORAN,

text:
    Henry S. Nowicki, Plaintiff-Appellee, v. Union Starch and Refining Company, Defendant-Appellant.
    (No. 68-111;
    Fifth District
    July 30, 1971.

      Rehearing denied September 21, 1971.

      MORAN, J., dissenting.
    Bernard and Davidson, of Granite City, (Burton C. Bernard, of counsel,) for appellant.
    Chapman, Strawn, Kinder & Talbert, of Granite City, (Morris B. Chapman, of counsel,) for appellee.
   Mr. JUSTICE VERTICCHIO

delivered the opinion of the court:

The defendant, Union Starch and Refining Company, appeals from a judgment in the sum of $65,000.00 in favor of the plaintiff, Henry S. Nowicki, entered upon a verdict in the circuit court of Madison County in plaintiffs suit for personal injuries.

Plaintiff, Henry S. Nowicki, sued to recover damages for personal injuries suffered on June 22, 1965, while doing construction work on the premises of the defendant in Granite City, Illinois.

The defendant complains of numerous errors committed during the trial. The alleged errors and the evidence adduced by the parties will be reviewed and discussed to the extent necessary to this opinion.

The plaintiff was working for a contractor, Minnette Boiler and Sheet Iron Works, engaged to perform work for the defendant, Union Starch and Refining Company, of Granite City, Illinois, under a purchase order dated April 15, 1964. The plaintiff’s employer agreed to fabricate and erect two new 3,500 bushel stainless steel tanks, numbers seven and ten, in defendant’s steep house.

The evidence showed that the defendant was engaged in processing corn into products consisting of dried starches, syrup, glucose, caramel, textile, and paper. The part of defendant’s operation involved in this case concerns work performed in a “steep house.” The evidence discloses that in the steep house were twenty water pumps, that water was used to wash down the floors and that the tanks would overflow; as a result the floor and bottom of the tanks were wet.

In 1960 the defendant commenced a program of replacing the old wooden tanks with new stainless steel tanks. The tanks were replaced two at a time and the usual work was not discontinued while the replacements were being made. The agreement provided that the plaintiffs employer was to erect two new stainless tanks, being numbers seven and ten. These tanks were made of five or six rings which were made to a radius and each ring had three sheets. The erection consisted of placing the legs of the tank on concrete bases which were below the level of the floor. The bottom of the tank was cone-shaped and the top had a steel roof. Because of the water and overflow, the contractor putting in the foundations had to sandbag the area to keep it dry. The new tanks were to have a capacity of 3,500 bushels and were about fifteen feet in diameter and forty-seven feet in circumference and were six to eight feet higher than the old tanks.

The evidence further showed that due to a hailstorm in April, 1964, the roof on the steep house was damaged and that when it rained, the roof leaked in many places and particularly over the area where tanks seven and ten were being erected. In between the tanks were steel I-beams which ran from the east wall to the west wall in the steep house which were about seven and one-half inches wide and over the I-beams was a catwalk which did not extend completely to the wall of the building.

The plaintiff, a boilermaker for twenty-two years, commenced working in the defendant’s plant about the middle of May, 1965, and had been working about five weeks before June 22, 1965, the date of the incident in question. In the afternoon of June 22, 1965, the plaintiff was instructed to fit a roof on to tank number seven. The roof consisted of two pieces of steel and weighed about one thousand pounds. The pieces for the roof were picked up by a chain fall from the top of tank number eight and moved over to tank number seven. It was necessary to use the I-beam on both sides of the tank to put on the roof. The plaintiff walked out from the catwalk onto the I-beam and was using a sleever to pry the roof up to fit on the lugs so it could be welded. His foot slipped out from under him and he fell on to a chute which was on top of the old wooden tank injuring his left knee.

It is not controverted that the plaintiff saw the roof leaking and saw water on the I-beam before he went out on it and that his shoes were not dry as he walked out on the I-beam.

The defendant’s first complaint of error arises out of a ruling of the court imposing upon the defendant the duty to furnish the employees of the contractor with a safe place to work,

The basic theory of the defendant in this case is that the trial court erred in accepting the plaintiffs contention that the defendant owed the plaintiff a safe place to work and that the openness of the risk of injury and the obviousness of the danger were irrelevant in determining the defendant’s duty of care, by rulings on various motions and instructions.

The defendant cites Illinois cases which generally adopt the principle announced in Calvert v. Springfield Electric Light and Power Co., 231 Ill. 290, at page 293. “The law is well settled that an owner or occupant of land who by invitation, express or implied, induces or leads others to go upon premises for any lawful purpose is liable for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist without timely notice to the public or to those who are likely to act upon such invitation, and if there are hidden dangers upon the premises he must use ordinary care to give persons rightfully upon the premises warning thereof, and that the owner owes such duty to an independent contractor or his servants while working upon his premises.” (Italics ours)

This principle is contrary to the theory of plaintiff inasmuch as the presence of the water of which he complains was as well known to him as to the defendant. It was not a hidden danger and was obvious to all. The trial court found that the conditions involving the area around the tanks and at the floor level, including the conditions of the roof, were known to plaintiff and, further, that plaintiff also knew his shoes were wet and that the I-beam was wet. In National Builders Bank of Chicago v. Schuham, 319 Ill.App. 546, the court held that the owner of property owes to an independent contractor and his servants who work thereon the duty of exercising reasonable care to have the premises in a safe condition for the work, unless the defects responsible for the injury are known to the contractor and his servants.

In Craig v. Olin Mathieson, 427 Fed. 2d 962 (1970, U.S.C.C.A., 7th Cir.), the court concluded that under the law announced by the Illinois courts the owner is not Hable for injuries resulting from conditions obviously dangerous and known by the contractor or his employee. In their opinion the said court cited Calvert v. Springfield Electric Light and Power Co., supra; National Builders Bank of Chicago v. Schuham, supra; Ragni v. Lincoln-Devon Bounceland, Inc. (1968), 91 Ill.App.2d 172.

The court in the Craig opinion also cited Deaton v. Board of Trustees of Elon College, 226 N.C. 433. “In that case the college employed an independent contractor to make repairs of its electrical system. The defendant was held as a matter of law not Hable for the death of one of the employees who while standing on wet ground touched a Hve wire and was electrocuted. The independent contractor knew at the time of making the contract that some of the wires were high tension. The court concluded that the owner was not liable for injuries resulting from conditions obviously dangerous and known by the contractor. Further, the court reasoned that the contractor was an expert, exercising his specialized knowledge according to his own judgment and with his own devices, and that he was aware of the danger inherent in the condition, as well as the peril incident to handling live wires while standing on wet ground.”

The defendant urges that the issue of the plaintiff’s knowledge of the conditions is not relevant and cites as an exception the rule enunciated in the headnote of 57 C.J.S., Master and Servant, Sec. 603 at page 374, wherein the text reads as follows: “An employer who reserves the right to direct the manner of performing the details of the work or interferes and assumes control may become liable for an injury to the servant of the contractor.”

There is testimony on the record that the defendant retained some supervision of the work, however, in view of the court’s instructions, particularly plaintiff’s Instruction 3, “The owner of property owed the plaintiff the duty to exercise ordinary care to keep the property reasonably safe for use by the Plaintiff” and plaintiff’s Instruction # 6, “The plaintiff claims he was injured and sustained damage while exercising ordinary care, and that the defendant was negligent in one or more of the following respects:

a) In negligently and carelessly failing to furnish plaintiff a safe place in which to work;
b) In negligently and carelessly failing to provide an appropriate place upon which plaintiff could stand to do his work;
c) In negligently and carelessly permitting the roof of the premises wherein plaintiff was working to leak, and consequently allowing rain to fall onto the I-beam upon which plaintiff was standing, causing it to be slick and hazardous;
d) In negligently and carelessly causing the plaintiff, in the course of his work, to stand above an open and dangerous area without proper guards or protection to prevent him from faffing from the place on which he was standing.
The plaintiff further claims that one or more of the foregoing was the proximate cause of his injuries.
The defendant denies that he did any of the things claimed by the plaintiff, denies that he was negligent, denies that any claimed act or omission on the part of the defendant was a proximate cause of the claimed injuries, and denies that the plaintiff was in the exercise of ordinary care.
The defendant further denies that plaintiff was injured or sustained damages to the extent claimed,"

thus, this contention has no merit. The employer rule referred to in 57 C.J.S., supra, is not applicable since neither the trial judge nor the jury made any finding to the effect that the defendant’s supervision amounted to control.

Because we are reversing the judgment and remanding the cause for a new trial, the court will comment on other errors cited.

As to the issue directed to the assumption of risk doctrine, in view of the court’s rulings hereinabove set out, it is the court’s finding that the issue is moot.

As to the alleged error in excluding defendant’s impeachment of plaintiff concerning the length of time plaintiff was on the wet I-beam before he fell, it is the opinion of this court that this was within the discretion of the trial judge and the judge properly ruled.

The trial court’s rulings were:

“a. That there was no inconsistency between the testimony and the prior statement.
b. The impeachment was not relevant to the issues. An examination of the record reveals that on cross-examination the plaintiff testified that he had worked on the wet I-beam “half a minute-thirty seconds” before he fell. The proposed impeachment was that a prior inconsistent statement on deposition was, “How long were you on this beam before you fell?” to which the plaintiff responded, “A very few minutes.”

It is this court’s opinion that the trial court’s finding that there was no inconsistency between the testimony and the prior statement and, further, that the impeachment was not relevant to the issues was correct.

As to the alleged error in curtailing the defendant’s cross-examination of plaintiff and excluding medical testimony concerning a prior injury to the plaintiff’s left knee, the court finds that the exclusion of said testimony was error. When a plaintiff attempts to produce expert evidence to establish a causal connection between an injury and a condition, it is sufficient that the expert state that there might or could be such a connection. When the evidence of the cause of a condition or injury is contested, a witness may not testify directly as to what caused the condition or injury, because to do so would invade the province of the jury, but the witness may testify as to what could or might have caused the injury. Callaghan’s Illinois Evidence, § 7.49 and cases cited therein. The same rule should apply when a defendant offers an expert. Thus, the defendant does not have to prove that the bullet which struck plaintiff in a childhood accident did cause or contribute to cause a condition, but it is sufficient that the expert witness testify that there might or could be a connection.

As to the alleged errors of plaintiff’s counsel throughout the trial, an examination of the record indicates that conduct of both counsel was of a nature that is not conducive to a fair trial. On remand, conduct of attorneys should be restricted to produce that result.

For the reasons herein set forth, the judgment of the circuit court of Madison County is reversed and cause remanded for a new trial.

Reversed and remanded.

EBERSPACHER, P.J., concurs.

Mr. JUSTICE MORAN,

dissenting:

The majority opinion relies principally upon the rationale of Craig v. Olin Mathieson, 427 Fed. 2d 962 (1970, U.S.C.C.A., 7th Cir.), which pointed out that plaintiff’s employer was an independent contractor, stating, “In summary, the area involved, owned by Qlin, was turned over to the contractor who by the terms of the contract had ‘absolute and full power of management and direction in all matters relating to such work.’” This was not the relationship between Nowicki’s employer and Union Starch because Union Starch retained control of the premises, removed control of Nowicki’s working conditions from his employer, and was guilty of active negligence in causing plaintiff’s injuries.

The distinction not recognized by the majority opinion between the legal problems in a case where the owner is truly an independent contractor and the present one is aptly illustrated by Reboni v. Case Brothers, 78 A.2d 887, where the court said at pages 889-90:

“The defendant relies on a dictum in Douglass v. Peck & Lines Co., 89 Conn. 622, 629, 95 A. 22, 25, reading as follows: ‘The owner of premises is not responsible to an independent contractor for injury from defects or dangers which the contractor knows of, or ought to know of. But if the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor, and if he does not do this, he is liable for resultant injury.
‘The same rule applies to the servants of the contractor and the subcontractor and his servants.’ This statement was not applicable to the facts of the case cited because the injury there complained of was not due to the condition of the property. It applies to a situation where the contractor has control of that portion of the premises where the accident occurs. It does not apply where the owner has retained or assumed control thereof. The complaint of the defendant is based on the refusal of the trial court to limit the duty of the defendant to one of warning of a hidden danger. In the case at bar, the owner was in possession and control, and the statement in the Douglass case does not apply.
The plaintiffs were entitled to rely on the further direct statement in the Douglass case 89 Conn, at page 629, 95 A. at page 25, also contained in the charge: “Whether the owner remain in partial use of the premises or not, he is liable for injury caused to the contractor or his servants by his own negligence.’ The complaint charged and the claims of proof were that the plaintiffs’ injuries were due to the defendant’s negHgent act of omission.”

The undisputed evidence discloses that Nowicki slipped on a wet I-beam while working and erecting a tank on Union Starch premises; that the wetness was caused by rain coming through a hole in the roof of Union Starch Company and that water had come through the hole in the past every time it rained; that other working areas were continuously wet because of the operation of defendant’s plant. The contract contained the foUowing provision: “That this work must be performed while our plant is in operation. Special precautions must be taken by the contractor to insure the plant operations are in no way interrupted by this work or material.”

From the foregoing, I conclude (1) that there is no question but that the defendant was negligent in permitting the water to drip on the I-beam surface where plaintiff had to work, (2) that Union Starch retained control of the premises where plaintiff worked while the contract was being performed, and (3) that the contract provision requiring the work to be performed while the plant was operating, effectively removed control of the working conditions from Nowicki’s employer and in a large part increased the dangers that Nowicki was compelled to work under.

In Louis v. Barenfanger, 39 Ill.2d 445, the Supreme Court stated at page 448: “Certainly, the failure to furnish a scaffold could be actionable at common law in many negligence situations. Thus, it is well-established that a general contractor in control of premises must furnish the employees of sub-contractors a safe place to work. See: 20 ALR 2d 873.”

There is no question that the owner who retains control of the premises or interferes with the manner in which the work is performed owes the same duty.

The owner or occupant of property owes an invitee the duty to exercise ordinary care to keep the property reasonably safe for use by the invitee. I.P.I. 120.06. The duty of an owner or occupant who hires a contractor to do work on the premises, but who retains control of the premises or of the work to be performed, is the same, although it is usually expressed in different terms. I.P.I. does not cover this situation, but the following standard California instruction does:

B.A.J.I., Vol. 2, No. 213-G:
“When an (owner) (or) (occupant) of premises expressly or impliedly invites a workman to enter the premises for the purpose of performing thereon some service from which both parties expect to benefit, the (owner) (or) (occupant), to the end of protecting the workman, is required to use reasonable care to provide him with a reasonably safe place in which to work and in seeing that such equipment and facilities as are under the (owner’s) (or) (occupant’s) control, and which the workman is likely to use, are reasonably safe for such use in carrying out the purpose of his employment.”

In Cudahy Packing Company v. Luyvers, 9 F.2d 32 at 34, the court said: “It is clearly negligent on the part of anyone, whether stranger, invitor or employer, with knowledge of what is to be done to maintain a place which is not reasonably safe, in view of the activities and operations therein mutually contemplated.”

In the present case it was mutually contemplated that the employees of the contractor would be working on premises in control of Union Starch. Therefore, the duty is the same, although it is stated differently. In one case the duty is to keep the premises reasonably safe and in the other, the duty is to furnish a safe place to work. Able defense counsel recognized this similarity at the instruction conference when he objected to the giving of the safe place to work instructions, not on the ground that no duty was owed to Nowicki, but rather on the ground that they were redundant.

We are dealing here with a case where the employer of the contractor asserted an unusual amount of control over the manner in which the work was performed, was unusually negligent and furnished the working areas where his own and the contractor’s employees worked.

In Douglass v. Peck & Lines Co., 95 A. 22, at 25, the court said: “Whether the owner remain in partial use of the premises or not, he is liable for injury caused to the contractor or his servants by his own negligence. So, too, he is liable for failure to perform any positive duty imposed by law. If the failure to give this warning, or to refrain from negligent conduct, or to obey the law, makes the place where the contractor or his servant is worldng not a safe place, in this sense it may be said the owner owes the duty of keeping the place where the contractor or his servants are at work safe.”

In the present case there is no question but that there was a hole in the roof of the premises; that water came through that hole and caused the place where plaintiff was working to become wet and slippery and that this condition had existed before.

I must also emphasize that in the present case we have a knowledgeable landowner, experienced and skilled in safety engineering, familiar with the hazards of construction and who, in the exercise of prudence and due care, could have prevented the accident in question. He should not be measured by the same standards governing a landlord’s duty to an invitee, in a case where the landowner is a householder or a small businessman, unaware of safety engineering.

In Storment v. Swift & Co., 5 Ill.App.2d 417, the trial court entered a judgment notwithstanding the verdict against the plaintiff on the ground “that the law is well-settled that a person has no right to knowingly expose himself to danger and then recover damages for an injury which might have been averted by the use of reasonable precaution for his own safety.”

Storment was a federal meat inspector who contended that the defendant company failed to maintain its premises in a reasonably safe condition, and failed to provide safe methods and instrumentalities so that plaintiff had a reasonably safe place to work and perform his inspection duties.

The contention was made in the trial court that Storment was guilty of contributory negligence because he knew the condition as well as Swift did and should have protected himself; that he continued to work in the face of a known and observable danger and assumed the risk and was guilty of contributory negligence as a matter of law. The Appellate Court stated on pages 422 and 423:

* * * It is apparent that the defendant company had a duty to maintain its premises in a reasonably safe condition, and conduct its operations in a reasonably safe manner for the performance of the work of plaintiff, since his presence and duties require him to be on the premises (Cudahy Packing Co. v. Luyben, 9 F.2d 32, 34; Cudahy Packing Co. v. McBride, 92 F.2d 737, 739; Swift & Co. v. Schuster, 192 F.2d 615).
Under the facts before us the question of defendant’s negligence was a jury question and contributory negligence, if any, being a matter with respect to which reasonable minds might differ, under the facts, was also clearly a question for the jury. Knowledge of the working conditions which might involve some risk did not, as a matter of law, under the facts, constitute contributory negligence (Swift & Co. v. Schuster, supra, at 616).”

In the present case the real question is: Does the employer of a contractor who insists that the contract work be done while the plant is in operation, who furnishes the premises where the work is being performed and who is in control of those premises, who negligently creates conditions which make the work of the contractors employees more dangerous, owe a duty to an employee of the contractor when the dangerous conditions are known to that employee and he continues to work on the premises under the dangerous conditions?

Knowledge of potentially dangerous working conditions does not convict the injured person of negligence as a matter of law. Knowledge is merely an evidentiary factor bearing on his conduct and never conclusive. A good statement of this principle is found in the case of Frost v. McCarthy, 200 Mass. 445, 448, 86 N.E. 918: “Although the terms ‘knowledge of danger and ‘appreciation of risk’ are frequently used in discussion of due care, still these elements in and of themselves do not constitute negligence, as a matter of law. These expressions are valuable aids in describing what may be found as matter of fact to constitute negligence. They aptly define what is evidence of negligence, but do not state that which is always such conclusive and indubitable want of care as to constitute negligence as a matter of law.” The Supreme Court of New Hampshire stated it this way: “The only logical conclusion which can be reached, when all the cases which have considered the right of those who were injured while voluntarily encountering a known danger to recover are read together, is that the facts that they knew of the danger incident to the condition of which they complain and voluntarily encountered it are not, in and of themselves, conclusive of their right to recover, unless the danger is so great that the ordinary man would not have done what they did. In all other cases these facts are merely evidence to be considered with other relevant facts on the issue of their care.” Kambour v. Boston, etc., RR. Co., 77 N.H. 33, 49 86 A. 624, 45 L.R.A.N.S. 1188.

The foregoing is especially true when the injured party is where he is as a matter of right and in the performance of a duty. In 65A C.J.S., Par. 126, p. 87, the principle is stated to be: “If a person in doing that which it is his right to do in the discharge of his duty, exercises ordinary care and prudence, he is not chargeable with contributory negligence as a matter of law although the result showed that he imperiled his life or personal safety in doing as he did. Notwithstanding one is acting in the discharge of his duty, he is guilty of negligence if he incurs a risk of injury which would not be incurred by an ordinarily prudent man under the same or similar circumstances.

In my opinion, the State of California through its Supreme Court adopted a sensible, up-to-date and humane rule in Florez v. Groom Development Co., 348 P.2d 200, when it used the foUowing language at 206-07:

“* * * An invitee, while properly using the portion of the premises to which the invitation extends, is not required to be, nor is he held to the duties of, an inspector. (Cases cited.) Certainly ‘an invitee is not required to look for hidden traps.’ (Cases cited.)
It is also the law that a workman on the job, doing the job he was hired to do, is not required to exercise the same quantum of care that may be required of other invitees. As was said in Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, at page 239, 282 P.2d 69, 77: *** where a person must work in a position of possible danger the amount of care which he is bound to exercise for his own safety may well be less by reason of the necessity of his giving attention to his work than would otherwise be the case. [Citing cases.]
In the instant case, appellants assume that their negligence, if any, was in using a plank that was too narrow or too short, and contend that these defects were clear and obvious, and should have been seen by respondent. It is urged that the very facts relied upon by respondent to support the inference of negligence also demonstrate that respondent was contributively negligent. This argument proceeds on the theory that the quantum of care required of the invitor and invitee are identical. That is not the law. Even if the only negligence involved was in furnishing a plank that was too short or too narrow, or both, the question as to whether respondent as a workman-invitee acted reasonably in using it was a question of fact for the jury. The cases already cited support this principle. It must not be forgotten that respondent’s duties as an employee required him, in the course of his employment, to use water, and so far as he knew, the faucet in question was the only place where water was available. The dangerous plank was the only means furnished to reach that faucet. The jury was entitled to balance the respondent’s necessity against the danger, even if it be assumed that it was an apparent one. This was a factual issue. [Cases cited.]
Thus, even if it be assumed that the only negligence involved, or that could have been involved, was in furnishing a plank that was too short or too narrow, or both, and that such condition was readily apparent, the jury properly found for respondent.”

However, assuming that Craig v. Olin Mathieson, supra, is factually in point with the present case, I still do not agree with its rationale because contrary to Illinois law it applies the outmoded assumption of the risk doctrine under another name.

In John F. Devine v. National Safe Deposit Co., 240 Ill. 369, 88 N.E. 804 (1909), an employee of a tenant knew of the unguarded elevator shaft opening but fell in and was killed. In holding decedent was not guilty of negligence as a matter of law, the court said, l.c. 374: “It cannot be said, as a matter of law, that Daly was not in the exercise of due care for his personal safety when he received the injuries, merely because he made use of the platform with full and complete knowledge of the danger. City of Streator v. Chrisman, 182 Ill. 215, and cases there cited; Palmer v. Dearing, 93 N.Y. 7; Dewire v. Bailey, 131 Mass. 169; Hopkinson v. Knapp, 92 Iowa 328; Am. & Eng. Ency. of Law 332. Appellant concedes that the doctrine of assumed risk can have no application here, but insists that the fact that the deceased “knew and appreciated the danger and voluntarily continued his work without objections’ bars a recovery under the rule ‘that he who consents cannot afterward complain.’ Appellant’s argument is, in this regard, merely an attempt to apply the doctrine of assumed risk and to give to it another name.” Emphasis added.

In Mueller v. Phelps, 252 Ill. 630, 97 N.E. 228, a cook employed by a tenant of a building thrust his head into an elevator shaft and was injured by a descending elevator. In holding contributory negligence to be a jury question, the court said, I.c. 633: “The argument, however, urged in support of contributory negligence is, substantially, that defendant in error knew and appreciated the danger of using the elevator. This is practically seeking to apply the doctrine of assumed risk under another name. The doctrine of assumed risk cannot apply here, as there was no contractual relation between defendant in error and plaintiff in error [Citing cases.] The question of contributory negligence is usually a question for the jury. It only becomes one of law for this court when the undisputed evidence is so conclusive that it is clearly seen that the accident resulted from the negligence of the party injured and could have been avoided by use of reasonable precaution. [Citing case.] Where reasonable men acting within the limits prescribed by law might reach different conclusions, or different inferences could reasonably be drawn from the admitted or established facts, the question of contributory negligence is for the jury. [Citing authority.] On the record in this case we think it was a question of fact to be submitted to the jury whether defendant in error was exercising ordinary care at the time of the accident. [Citing cases.]” Emphasis added.

In Riordon v. Thompson & Starrett Co., 204 Ill.App. 488, the court permitted recovery by the plaintiff, an employee of a subcontractor, against the general contractor because of the absence of a handrailing on a stairway, even though plaintiff had used the stairway before. The court placed emphasis on the fact that several hundred men had gone up and down this stairway daily. In answer to the contention that the plaintiff could not recover because he had knowledge of the danger and voluntarily exposed himself to it, the court said that the doctrine of assumed risk is only applicable to the master and servant cases and that this was merely an attempt to apply the doctrine of assumed risk and give it another name.

The rationale of Craig v. Olin Mathieson, supra, was erroneously taken from Calvert v. Springfield Electric Light & Power Co., 231 Ill. 290, and National Builders Bank v. Schuham, 319 Ill.App. 546. The Calvert decision did not turn on whether or not the condition was known to the landlord and not to the invitee; but rather, was based upon the fact that the condition which caused plaintiff’s injury was not plainly visible to plaintiff. The court did go on to say that if the hole in the roof was visible to the plaintiff, it would not hesitate to hold that there could be no recovery on account of the assumption of the risk by appellee’s intestate.

However, even if we would follow the dictum of Calvert, I would say it would be more reasonable to say that Calvert holds that in this situation assumption of the risk is a defense and then we should use the guidelines set out in our master and servant cases, the last of which is Clubb v. Main, written by Justice Goldenhersh, 65 Ill.App.2d 461, 213 N.E.2d 63, and under that case the standard would be a subjective one and dependent upon what the plaintiff sees, knows, understands and appreciates.

In National Builders Bank v. Schuham, supra, the deceased was repairing a window frame and window sash and met his death when he fell out of the window opening. The court there did not hold the defendant not liable because the defects responsible for the injury were known to the contractor or his employees, although it said in view of the facts and circumstances as to decedent’s conduct, it might well be held as a matter of law that he was guilty of contributory negligence and that he assumed the risk of being injured in the manner in which he was injured, etc. Instead, this decision turned upon the fact that there was no proof of defendant’s negligence because defendant neither knew or could have known of the defective condition which caused decedent’s death. Again assuming that this case is a proper citation that one cannot recover for an open and obvious condition that he knows of, stiff this is not authority for saying this was lack of duty on the defendant, but rather is authority for saying that under these conditions this was an assumption of the risk or failure to prove freedom from contributory negligence. If. this is true, then we would have the same rules as laid down in Clubb v. Main, supra. Defendant would also be faced with the affirmative defense of showing that the condition that caused Nowicki’s injuries arose out of the character of the work he was doing and also did not arise from the negligence of the defendant, which in my opinion, would be an impossible burden under the undisputed facts in this case.

Prior to 1963, Rule 343 of the Restatement, published by the American Law Institute, provided:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.”

Harper and James in their work, The Law of Torts, Vol. 2, § 217.13 (1956) criticized this rule, saying that “the principle there enunciated is a doubtful one on both principle and authority.” They pointed out at pages 1493-1495 that the fact that a condition is obvious did not always remove all unreasonable danger.

In 1963 and 1964 the American Law Institute revised Rule 343 by adding Rule 343A which provides:

“343A. Known or Obvious dangers.
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”

In their supplement to Volume 2, Harper and James, published in 1968, the authors point out at page 193:

“The most significant development in the subject matter of the section (27.13) has been the American Law Institute’s adoption of a new section which at least goes a long way towards meeting the objections taken in the text to the. original Restatement position, and towards adopting the reasoning here expressed. Restatement of Torts Second § 343A(1) reads as follows: # * *.”
I would affirm the judgment of the trial court.


source: Caselaw Access Project

license: Public Domain

text:
    Donald H. Galloway, Petitioner-Appellee v. Ray Page, Individually and as Superintendent of Public Instruction et al., Defendants-Appellants.
    (No. 11407;
    Fourth District
    August 27, 1971.
    William J. Scott, Attorney General, of Springfield, (John R. Morrow, Assistant Attorney General, of counsel,) for appellants.
    Robert J. Myers, of Springfield, for appellee.


text:
    The City of Lincoln, Plaintiff-Appellant, v. Victor E. Thudium, Defendant-Appellant.
    (No. 11334;
    Fourth District
    August 27, 1971.
    Warren Peters, City Attorney, of Lincoln, for appellant.
    Edwin C. Mills, of Lincoln, for appellee.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leo Jackson, Defendant-Appellant.
    (No. 54431;
    First District
    August 5, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (James N. Gramenos, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Brent F. Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

In a bench trial, defendant was convicted of the crime of unlawful possession of heroin and sentenced to 6 to 8 years in the penitentiary. He appeals contending that the trial court committed reversible error in denying his motion to quash the search warrant, and also that he was not proved guilty beyond a reasonable doubt.

The complaint for the search warrant was signed by A1 Wilson, who did not testify at the hearing on the motion to quash the search warrant or at trial. At the hearing on the motion, Officer Resner of the Chicago Police Department testified that he knew the affiant as A1 Wilson, and by no other name. This arrest was the first time he used Wilson as an informer. Defendant testified at the hearing that he had a former roommate whose real name he believed to be Albert Bradley. Defendant knew that Bradley also used the alias of A1 Wilson.

Defendant first maintains that the court erroneously denied the motion to quash the search warrant for the following reasons: (1) the warrant was based upon the allegations of an affiant using a fictitious name; (2) production of the affiant at the hearing on the motion to quash the search warrant was indispensable; and (3) the affiant’s reliability as a witness was not established.

Defendant’s argument that the search warrant was defective because the affiant used a fictitious name must fail. Our Illinois Supreme Court has held that the use of a fictitious name by an affiant to a search warrant does not constitute an abridgment of constitutional rights. (People v. Stansberry (1971), 47 Ill.2d 541, 268 N.E.2d 431; People v. Smith (1968), 40 Ill.2d 501, 241 N.E.2d 185; People v. Mack (1957), 12 Ill.2d 151, 145 N.E.2d 609.) Moreover, under the conflicting testimony presented at the hearing on the motion to quash, the trial court was entitled to conclude that Al Wilson was not a fictitious name, but the actual name of the affiant.

Defendant next argues that it was necessary for the State to have the affiant testify at the hearing on the motion in order to establish his true identity. He also contends that the search warrant was defective because the reliability of the affiant as a witness was not established. However, defendant cannot go behind the face of a complaint for a search warrant and relitigate probable cause for the issuance of a search warrant by a judicial officer. (People v. Bak (1970), 45 Ill.2d 140, 258 N.E.2d 341; People v. Mitchell (1970), 45 Ill.2d 148, 258 N.E.2d 345.) In Bak at p. 144, the court said: “This majority of the court believes that both constitutions contemplate only that a judicial officer find probable cause for the issuance of a warrant based on the evidence under oath that has been presented to him by one requesting the warrant. It is contemplated that the credibility of the affiant or others offering evidence is for the judicial officer. If he finds the evidence worthy of belief and sufficient to form probable cause, this judicial determination cannot be relitigated through a later disputing of the evidence. Should an affiant betray the confidence in his integrity which is contemplated by the ex parte proceeding and intentionally make misrepresentations to the judicial officer, he can be punished for the offense.”

In the verified complaint for the search warrant in the case at bar, the affiant swore that he had been in defendant’s apartment on several occasions, and on a specific date had in fact purchased heroin. Thus the verified complaint stated the facts sufficiently so that the affiant could be charged with perjury if the complaint were false. The informant who observed the criminal activity in defendant’s apartment was the same person who signed the complaint for the search warrant. The verified complaint set forth his personal observations, and there was no element of hearsay. (See Spinelli v. United States (1969), 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584.) The affiant-informant was before the judicial officer for inquiry and observation at the time of the issuance of the search warrant. When the judicial officer issued the search warrant based on the facts stated in the complaint, the affiant’s reliability was established. The court did not err in denying the motion to quash the search warrant.

Defendant also argues that he was not proved guilty beyond a reasonable doubt, contending primarily that the evidence did not support a reasonable inference of his knowledge and control of the narcotics.

At trial, Officer Ray Rice of the Chicago Police Department, the only witness presented by the State, testified that with two other officers he went to defendants apartment to execute the search warrant. After forcing their way into the apartment they made a search, and the witness discovered three packets of heroin in the pocket of a pair of gray trousers located in the apartment closet. The officer believed that the gray trousers were defendant’s because all of the clothes were about the same size. Moreover, when asked to get dressed to go to the police station, defendant picked through his clothes and selected the gray trousers to wear.

Defendant testified that he lived alone in the apartment at the time of the arrest, but that Bradley had lived there until a week or ten days before. Most of the clothes belonged to defendant, but some, including the gray trousers, belonged to Bradley. Defendant did not recall what clothes he wore to the police station. Defendant also denied any knowledge of the narcotics. In 1961 he had been convicted of the unlawful sale of narcotics.

Knowledge and possession of narcotics must be proved beyond a reasonable doubt. But where narcotics are found on premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the trier of fact a reasonable doubt as to defendant’s guilt. (People v. Nettles (1961), 23 Ill.2d 306, 178 N.E.2d 361.) In the instant case, it was undisputed that defendant had sole possession and control of the apartment at the time of the arrest. Additionally, although defendant testified that Bradley alias Wilson had lived there until a few days before the arrest, the police officer testified that when defendant was instructed to dress he of his own volition selected the gray trousers to wear to the police station. The testimony adduced clearly constituted sufficient proof that defendant had knowledge and requisite control of the heroin.

The testimony of the one police officer at trial was sufficient to sustain the conviction. His testimony was positive and credible. Nor did the State’s failure to call the other arresting officers at trial create a reasonable doubt of defendant’s guilt.

Judgment affirmed.

DEMPSEY and McGLOON, JJ., concur.


author: Mr. JUSTICE LORENZ

text:
    John Dorbin, Plaintiff-Appellee, vs. Yellow Cab Company, et al., Defendant-Appellant.
    (No. 54898;
    First District
    August 13, 1971.
    Julius Jesmer, Charles E. Tannen, of Chicago, (Jesmer & Harris, of counsel,) for appellant.
    Robert E. Cleveland, of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

This is an action for personal injuries allegedly sustained by plaintiff in a collision of plaintiff’s automobile and defendant’s taxicab.

The complaint was filed November 18, 1966. On December 29, 1989, on defendant’s motion the suit was dismissed for plaintiff’s failure to answer interrogatories. On January 27, 1970, the court entered an order vacating the dismissal order of December 29, 1969, directing plaintiff to file his answers to the interrogatories within fourteen days and setting trial for April 6, 1970.

Defendant seeks to appeal from the order of January 27, 1970. Plaintiff has moved this court to dismiss the appeal, for the reason that the order is not appealable.

In Stoller Lumber Co. v. Cosmopolitan Nat. Bank (1988), 101 Ill.App. 2d 431 the court said: “Section 50(5) of the Civil Practice Act provides that the court may on motion filed within thirty days after entry thereof, set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable. There is no appeal from an order entered pursuant to this section. See City of Park Ridge v. Murphy, 258 Ill. 365, 101 N.E. 524; Natale v. Enterprise Pub. Co., 82 Ill.App.2d 105, 227 N.E.2d 84, and Tinkoff v. Wharton, 344 Ill.App. 40, 99 N.E.2d 915. The order vacating the decree, entered within thirty days from the entry of the decree, was interlocutory and not appealable. Therefore the appeal is dismissed.”

The order appealed from was an interlocutory nonappealable order and the appeal must therefore be dismissed.

Appeal dismissed.

ENGLISH, P. J. and DRUCKER, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, vs. Laddie Mikota, Defendant-Appellant.
    (No. 55440;
    First District
    August 13, 1971.

      Sam Adam, and Edward M. Genson, of Chicago, for appellant.
    William J. Scott, Attorney General, James B. Zagel, Assistant Attorney General, Edward V. Hanrahan, State’s Attorney, Robert A. Novelle, Alan M. Polikoff, Assistant State’s Attorneys, all of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

At the conclusion of a bench trial, in which defendant appeared pro se, defendant was found guilty of the offense of public indecency. He was placed on probation for two years, the first sixty days of which to be spent in the House of Correction. Defendant appealed directly to the Supreme Court of Illinois pursuant to Supreme Court Rule 603 which provides for direct review of final judgments of the circuit courts in cases involving a constitutional question. The Supreme Court adjudged that it had no jurisdiction of the case on direct appeal and transferred the case to this court.

On appeal defendant contends:

(1) that he was not properly informed of the nature and cause of the accusation against him;
(2) that there was a fatal variance between the complaint and the proofs; and
(3) that the evidence was insufficient to sustain his conviction. Before the trial court began taking evidence in this case a rather extensive colloquy took place between defendant and the court. The court cautioned defendant about representing himself in this cause but he responded that he was familiar with both the statute under which he was charged and the penalty which could have been imposed. After the court informed defendant of his right to a jury trial, which was waived, he sought to determine the nature of the charge against him as alleged by the victim. He was then given a copy of the complaint which he discussed with the court. This discussion revealed defendant’s familiarity with the statute which was the basis of the complaint.

After a stipulation by defendant that he was over 17 years of age, Catherine Kuchta was called by the State and testified that she was 12 years old. At 5:30 P.M. on January 30, 1968, she was walking on the sidewalk at 27th and Albany in Chicago. Although the sun had gone down, street lights illuminated the area where she was walking. She noticed a man approximately one block away walking in her direction. As he approached, she recognized the man as the defendant in this case, whom she had previously seen. When he approached to within twenty-five feet, she noticed his pants were unzippered and he was holding his penis. As she walked toward him she moved to the other side of the walk, but he also moved so as to be directly in front of her. As defendant came within ten feet of her she noticed that defendant was swinging his penis. Defendant walked directly toward her, coming as close as four to six feet, in an attempt to corner her against a building but she ran away. Defendant never spoke to her but did smile “real funny-like.” After the incident she went to her girlfriend’s home and called the police.

Chester Lairson testified for the State that Miss Kuchta, whom he had known for five years, is his stepdaughter. She is a very good girl who goes to school daily where she obtains grades of straight “Es”.

Rose Bauer was the sole defense witness. She testified that she left her house between 5:00 P.M. and 5:30 P.M. on January 30, 1968 to get a newspaper. At that time she saw defendant working in front of his house which was next to hers. She returned about 5:30 P.M. and saw defendant was still in front of his house. On cross-examination she said that she went for the paper on January 31. On redirect examination she testified that it was January 30 but in response to further questions indicated that it may have been subsequent to January 30 and finally said it was on January 30 that she went for the newspaper. Although asked several times by defendant’s leading questions whether she had gone to obtain a Tribune (a copy of which was shown to her), she insisted she never got a Tribune but did get a Herald-American tsicl.

Opinion

(1) Defendant’s contention that he was not informed of the nature and cause of the accusation against him mainly centers around the complaint (see footnote 2) which he claims was insufficient because it was couched in the words of the statute. A complaint is, however, sufficient, even though it is in the terms of the statute creating the offense, when that statute particularly defines the act constituting such offense thereby apprising defendant of the precise nature of the charge against him. (People v. Collins (1962), 35 Ill.App.2d 228, 231-232; see also People v. Patrick (1967), 38 Ill.2d 255, 258.) The complaint (see footnote 2) charged that defendant, while in a public place, lewdly exposed his body with the intent of arousing the sexual desires of himself or someone else. It also set out the specific date, time and the location when the act occurred. In addition, the statute which defendant had allegedly violated was specified. This certainly apprised defendant of the offense with which he was charged thereby enabling him to prepare his defense and plead the judgment as a bar to a subsequent prosecution for the same offense. A complaint substantially similar to the one in question here was specifically upheld in People v. Grear (1968), 98 Ill.App.2d 372; rev. on other grounds (1969), 42 Ill.2d 578.

Defendant also makes much of the fact that although the complaint was made by Chester Lairson, it was Catherine Kuchta who presented the evidence against him. Defendant contends this led him to believe that it was Lairson and not the girl who would be the witness against him. The Supreme Court in People v. Kennedy (1922), 303 Ill. 423, 425, was held that the person making the complaint need not have firsthand knowledge of the offense when the knowledge he does have comes from some source which enables the person verifying the information to swear to its truth. Additionally, it is not through the complaint but ordinarily through the use of a pretrial motion that a defendant learns of the witnesses against him. Also, defendant’s comments before trial reveal that he knew of the existence of the girl and that she claimed that defendant committed the offense. We conclude that the fact the complaint was made by the 12-year-old-girl’s stepfather rather than by her does not render that complaint defective and that it was sufficient to inform defendant of the nature and cause of the accusation against him.

(2) The defendant next contends that there was a fatal variance between the complaint and the proof. While it is conceded that a variance may vitiate a trial, variance per se is not a fatal defect. (See People v. Merrill (1966), 76 Ill.App.2d 82, 87.) The variance, if it is to result in a reversal of defendant’s conviction must “be of such character as may mislead the accused in making his defense or expose him to double jeopardy.” (People v. Figgers (1962), 23 Ill.2d 516, 518-519.) In comparing the evidence brought forth at trial with the complaint (see footnote 2) we find no material variance. A stipulation entered into between defendant and the State established that defendant was above the age of seventeen years. Catherine Kuchta testified that on January 30 at 5:30 P.M., while she was walking on a street at 27th and Albany in Chicago, she saw defendant exposing himself. Intent typically is proved by circumstantial evidence, and, in the absence of circumstances inconsistent with the requisite intent, it will be inferred from the evidence establishing the other essential elements of the crime. (People v. Johnson (1963), 28 Ill.2d 441, 443.) In the instant case defendant not only exposed himself to the girl, he held his penis, swung it and smiled while attempting to corner her against a building. Such conduct on the part of defendant is sufficient to allow an inference to be drawn that he had the intent to arouse or satisfy his sexual desires. The words “or other person” found in the complaint are immaterial and may therefor be disregarded as surplusage. (People v. Armes (1963), 28 Ill.2d 83, 86; People v. Figgers (1962), 23 Ill.2d 516, 519.) The evidence brought out at the trial of this case was therefore not at variance with the complaint.

(3) Defendant’s contention that the evidence was insufficient to sustain a conviction against him is without merit. In making this contention defendant relies heavily on People v. Grear (1969), 42 Ill.2d 578. That case also involved a situation in which a defendant exposed himself to a girl. The court held that the evidence was not clear and convincing or substantially corroborated because the complaining witness had only a fleeting opportunity to view the person who purportedly exposed himself. The comt noted that the defendant neither said nor did anything to attract the attention of the complaining witness. Also a companion of the complaining witness saw nothing unusual at the time of the alleged offense. Grear is quite a different situation from that with which the court is confronted in the instant case. Here Catherine Kuchta saw the defendant as he approached from the distance of one block. As defendant came within twenty-five feet of her she realized that he was exposed. Also defendant attempted to corner her against a building. All of this occurred in an area illuminated by street lights.

Defendant, in an attempt to establish an alibi, called a witness who testified on direct examination that defendant was in front of his home on the date and time in question. Cross-examination of this witness revealed marked uncertainty concerning the date on which she saw defendant. The trier of fact chose to believe the testimony presented by the prosecution and this court will not upset that determination where the evidence is merely conflicting. See People v. Scott (1966), 34 Ill.2d 41, 45.

Additionally, the trial court found: “The question of identification is not a subject of consideration in this case at all, because the Court observes that the defendant is not a person who would be difficult to recognize by a person. Therefore, the Court is not concerned about identity.”

The evidence in this case supports the conviction of defendant Mikota.

The judgment is affirmed.

Judgment affirmed.

ENGLISH, P. J. and DRUCKER, J., concm.

       Ill. Rev. Stat. 1967, ch. 38, par. 11—9, the pertinent statute, reads in part as follows:
      “(a) Any person of the age of 17 years and upwards who performs any of the following acts in a public place commits a public indecency: * * *
      (3) A lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of the person; * * *
      (b) Public place for purposes of this Section means any place where the conduct may reasonably be expected to be viewed by others.”

       The complaint in the instant case, signed by Chester Lairson, reads as follows: “That Laddie Mikota has, on or about 30 Jan 1968 5:30 P.M. at 27th & Albany [sic] Chicago Ill. committed the offense of Public Indecency in that he a person of the age of 17 years and upwards, To Wit: 32 years of age, While in a public place, performed an act of a lewd exposure of the body, done with the intent to arouse or satisfy the sexual desires of either himself or another person, in violation of Chapter 38 Section 11—9 * *

       The basis of reversal in the Grear case was the failure of the evidence to establish guilt beyond a reasonable doubt.

       See Ill. Rev. Stat. 1967, ch. 38, par. 114—9.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eddie Pitts, Defendant-Appellant.
    (No. 54629;
    First District
    August 19, 1971.

      Rehearing denied September 16, 1971.

    Gerald W. Getty, Public Defender, of Chicago, (Suzanne M. Kohut and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.

      Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Henry A. Hauser, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

The defendant, Eddie Pitts, was convicted by a jury of the unlawful sale of the narcotic drug, heroin, in violation of Ill. Rev. Stat. 1969, ch. 38, par. 22 — 3, and sentenced to from ten to twelve years in the penitentiary. He appeals to this court from that conviction.

We reverse and remand for a new trial.

The defendant, on appeal, raises many issues. However, we will discuss only that issue upon which we base our decision. Further, since the facts are not in dispute, we will recite only those facts necessary for purposes of clarity.

The defendant raises the issue of his rights to a fair trial and due process of law. He argues that he was denied these basic rights because, among other things, the prosecution introduced incompetent evidence that the defendant had committed other crimes. This argument rests on the fact that although the defendant did not testify, the prosecution introduced testimony to the effect that the defendant was on parole at the time he was arrested for the crime in the case at bar.

The facts surrounding the introduction of the testimony in question are as follows: The defendant was arrested by a Chicago police undercover narcotics agent. The officer was working as part of a three-man team. The other two officers would follow the undercover officer to provide surveillance and presumably protection in the event of an emergency. At the time of his arrest, the defendant made several statements in the presence of the three officers which later became the basis of a pre-trial motion to suppress made by the defense counsel. At the hearing on this motion, one of the officers testified on cross-examination by defense counsel that at the time of his arrest the defendant told the officer, “You know, I am going to be in a lot more trouble because I am on parole for selling drugs.”

After hearing all of the testimony, the motion to suppress was denied. However, prior to concluding the hearing the prosecutor, in colloquy with the court, requested a ruling on the propriety of placing certain admissions, including the testimony in question, before the jury. The court responded, “However, any reference to any kind of record by these police officers, if any, that this defendant had, would be highly inappropriate, and I think prejudicial to this defendant.” The prosecution expressed their acquiescence, and the case proceeded to trial.

At trial, although the defendant did not testify, the following testimony was elicited by the prosecution from one of the arresting officers:

“Q. Do you recall what Mr. Pitts stated in relation to my last comment, Detective (naming officer)?
A. Yes, sir, I do.
Q. What would that be?
A. He said that he was in a lot of trouble and that he was on parole.”

At this point, the court denied defense counsel’s motion for a mistrial, struck the answer and instructed the jury to disregard it. At the close of the evidence, the trial judge denied the defendant’s motion for new trial and motion for arrest of judgment, and the defendant was sentenced as previously described.

On appeal the State argues that any denial of due process that might be caused by the statements in question was prevented by the fact that the trial judge had the testimony struck from the record and instructed the jury to disregard it.

We note that the defendant brings this argument of incompetent evidence on the constitutional grounds of denial of fair trial and due process. While the general rules for the admission of such evidence have been couched in terms of relevancy and materiality within the framework of the adjective law of evidence and not upon the substantive law of constitutional rights, we are not precluded from considering the merits of the defendant’s argument.

The general rule on the admission of “other crimes” evidence is that, upon a prosecution for a particular crime, evidence which shows or tends to show that the accused has committed another crime, independent of that for which he is on trial, is irrelevant and inadmissible. (People v. Peto (1967), 38 Ill.2d 45, 230 N.E.2d 236.) The rationale is that such evidence ordinarily does not tend to establish the commission by the accused of the offense charged, that the evidence must be confined to the point in issue and that the substance of one crime cannot be proved by the substance of the other. People v. Donaldson (1956), 8 Ill.2d 510, 134 N.E.2d 776; People v. Meisner (1924), 311 Ill. 40, 142 N.E. 482; People v. Rivas (1966), 5 Ill.2d 556, 126 N.E.2d 638.

This rationale was summed up in People v. Gregory (1961), 22 Ill.2d 601, 177 N.E.2d 120 when our Supreme Court commented at page 603: “Under our concepts of a fair and impartial trial, it is elementary that a defendant, no matter how reprehensible his crime or how black his history of past misdeeds, is entitled to have his guilt or innocence determined solely with reference to the crime with which he is charged. Accordingly, it is well settled that evidence of other offenses unrelated to the crime for which a defendant is on trial is incompetent.”

While there are several well-defined exceptions to the general rule, the applicability of any such exception is not claimed here.

It is also well established that where the defendant chooses to testify, evidence of his prior convictions for “infamous crimes” which are defined by statute may be introduced in the manner prescribed by the statute for the purpose of determining his credibility. Ill. Rev. Stat. 1967, ch. 38, par. 155—1. People v. Flynn (1956), 8 Ill.2d 116, 133 N.E.2d 257.

In the case at bar, the defendant did not testify, and we are faced with the question of whether the testimony evidencing his conviction for previous crimes was sufficiently prejudicial to require reversal. The defendant’s brief has cited several cases which we deem controlling. In People v. Williams (1966), 72 Ill.App.2d 96, 218 N.E.2d 771, the defendant was on trial for burglary and theft involving money taken from a priest in a Roman Catholic Church. One of the investigating officers testified concerning a report from which he had originally obtained the defendant’s description: “This is another church burglary, in the same reference where the priest was attacked and accosted by George Williams.”

Later the detective testified on redirect examination that he had previously seen the defendant “in pictures and his record, his police record.” Tire detective’s replies were stricken from the record by the trial court.

The Appellate Court in reversing the convictions said at page 102: “Defendant here did not take the witness stand and therefore the statements of the police officer were clearly prejudicial. Their only effect was to convey to the jury the impression that the defendant had criminal tendencies and was likely to commit a crime such as that for which he was being tried.”

In People v. Colston (1967), 81 Ill.App.2d 75, 225 N.E.2d 801, a case very similar on its facts to the case at bar, the prosecution, during its case in chief, and, after an anticipatory objection by defense counsel had been overruled, elicited testimony from a police officer that he had obtained the defendant’s address “from the Illinois State Parole Office.” The court said at page 77: “The inferences to be drawn from this testimony are so patent as to be obviously prejudicial to defendant who did not testify, and who therefore did not open up the question of his prior criminal record as it would relate to his credibility as a witness. We consider this to be sufficient grounds for a reversal.”

We agree that the same result must accrue in the instant case.

We wish to emphasize that we weigh heavily the somewhat obvious conduct of the prosecution to elicit inadmissible testimony in the presence of the jury, in spite of the warning to the contrary by the lower court at the pre-trial hearing.

The State argues that the conduct of the trial judge in striking the testimony and giving cautionary instruction to the jury distinguishes this case from the Colston case, supra, and was sufficient to nullify any prejudice that might reflect against the defendant. We do not agree. In People v. LaGardo (1967), 84 Ill.App.2d 410, 228 N.E.2d 241, the court at page 422 cited the case of People v. Buckminster (1916), 274 Ill. 435, 113 N.E. 713, wherein the Illinois Supreme Court in discussing the problem of an inadmissible confession of a co-defendant accomplice said: “The admission of improper testimony that would have a tendency to warp or prejudice the minds of the jury can hardly be considered harmless on this record. * * * It would be impossible to decide with certainty as to whether it would or not unconsciously affect the jury as to their verdict. If from the legal evidence admitted they had any doubt as to the guilt of plaintiff in error, the jury would not find it easy, or perhaps possible, to remove from their minds the impression produced by this confession.” The court in LaGardo said of this reasoning: “The reasoning employed in Buckminster is squarely applicable to the adverse effects Dispenza’s confession had upon the minds of tire jurors in the instant case. Nor can it be argued that the proffered cautionary instruction on the subject cured the defect, as the prejudice, once wrought, cannot be eradicated.”

As a result of the introduction of this evidence the court in LaGardo concluded that the defendant was not afforded a fair trial on the charges brought against him.

In People v. Gregory, 22 Ill.2d 601, where “prior crimes” evidence was admitted via a co-defendant’s confession even though the defendant did not testify, the State argued that the trial court’s cautionary instruction telling the jury to disregard such evidence cured any error. The Illinois Supreme Court did not agree. They said at page 605: “Because of this cautionary instruction the People now urge that any error committed was cured. We cannot agree that this is so. Once a jury is permitted to hear evidence strongly calculated to impress the minds of the jurors and create prejudice against the accused, the damage is done. Jurors are not robots but are humans with qualities common to all persons. As was pointed out in People v. White, 365 Ill. 499, 510, the individual’s emotions are not destroyed when he becomes a juror, and neither is the power of memory or the function of thinking for one’s self suspended when a person sits in a jury box. We conclude in this case that the error in admitting the evidence was not cured by the court’s instruction.”

We conclude that because evidence of prior crimes was admitted against the defendant in this case, he did not receive the fair and impartial trial to which he was entitled.

The judgment of the trial court is reversed and the cause remanded for a new trial.

Reversed and remanded.

McNAMARA, P. J., and DEMPSEY, J., concur.


text:
    J. J. Anzalone, d/b/a S. Anzalone & Company et al., Plaintiffs-Appellees, v. Irving Durchslag, d/b/a General Painting Contractors Company et al., Defendant-Appellants.
    (No. 54698;
    First District
    August 26, 1971.

      Marvin H. Click and Arthur W. Baum, of Chicago, for appellants.
    Anthony M. Anzalone, of Chicago, for appellees.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Defendants appeal a judgment entered against them below in the amount of $3,187 for merchandise allegedly ordered from plaintiff. Defendants assert that they were improperly held personally liable for the debt of General Painting Contractors which was not a partnership as found in the trial court, but a corporation. They seek to establish this fact by arguing alternatively that either General Painting Contractors was a division of Chicago Camcorp, Inc. (a valid Illinois corporation) and, therefore, entitled to share in its corporate existence, or that plaintiff should be estopped from denying General Painting Contractors’ corporate existence because plaintiff dealt with General Painting Contractors as if it were a valid Illinois corporation.

More specifically they argue: (1) A corporation (i.e., Chicago Cam-corp, Inc.) may contract, acquire rights, or incur obligations in a fictitious or trade name (i.e., General Painting Contractors.) (2) If the plaintiff intended to deal with the corporation (Chicago Camcorp), there is no liability on the officers and shareholders of the corporation. (3) If plaintiff contracted or otherwise dealt with an alleged corporation (General Painting Contractors) in such a way as to recognize its legal existence as a corporate body, he is thereby estopped to deny its corporate existence.

We affirm.

Joseph Anzalone, plaintiff, is in the business of selling paint, wallpaper, hardware and decorating equipment. Anzalone had known defendant Durchslag for twenty-five years, and, therefore, when Durchslag presented himself to Anzalone in early 1963 and informed him that he was a part of Chicago Camcorp, Inc., Anzalone decided to extend credit to the corporation on his goods. Chicago Camcorp, Inc. was originally a party to the action but was later taken out by reason of plaintiff’s Amended Complaint. Ill. Rev. Stat. 1967, ch. 110, par. 46.

In April of 1964 Durchslag again appeared in Anzalone’s place of business. Anzalone testified that Durchslag told him that “* * * he was going into this painting business big and he was going to form a new company, General Painting Contractors, and he was hiring a new man * * * Azalone expressed his reservations about the new employee, who had a very bad business reputation, to both Durchslag and Durchslag’s associate (and co-defendant) Ryan. Nevertheless, as Anzalone put it, “As long as Mr. Durchslag was behind the whole situation and I had known him for so many years and his family and doing business with them, and always been paid, I went, just went along with them.”

When asked the name of this “new company,” Anzalone replied, “General Painting Contractors. They were changing the name from Chicago Camp Corps [sic] to General Painting Contractors, a division of that, or whatever * * *. I am positive that is what he termed it as in forming a new company.”

From April of 1964 until September of the same year, painting supplies were purchased by and billed to General Painting Contractors Co., 209 North Des Plaines, except for a few billed to General Painting Contractors Co., Chicago Camcorp, Inc. Bills, when paid, were paid by checks, the stubs of which bore the notation “Chicago Camcorp, Inc.”

September 15, 1964, Durchslag informed plaintiff that he was no longer with General Painting Contractors. When plaintiff inquired, “Who do I go to see for the money now?”, Durchslag replied, “You will have to chase * # # Jack Richards. We sold the business to him, or Jack Ryan.”

Irving Durchslag testified at trial that General Painting Contractors Co. was not a corporation, nor was it a partnership. Its members were those of Chicago Camcorp, and the name “General Painting” was created because it better informed the public of Chicago Camcorp’s decorating service. General Painting Contractors Co. did not have a checking account, a tax return, employees, a social security number, or a bank account separate from those of Chicago Camcorp, Inc.

Having heard all of the testimony and having viewed all of the evidence, the trial court entered a judgment against Durchslag and Ryan.

Defendants first argue that Chicago Camcorp, Inc. could contract, acquire rights, or incur obligations in a fictitious or trade name. They offer as authority for this argument the case of Malleable Iron Range Co. v. Pusey (1910), 244 Ill. 184, 91 N.E. 51. This case, however, is inapposite to the point defendants stress, for it addresses itself to an instance where a corporations name was improperly stated on a contract. The court held that such a misnomer would not invalidate the contract if it could be proven that the identity of the corporation in question was unmistakable and that the corporation was misnamed in the contract by inadvertence. Thus, parole evidence was admissible to establish the identity of the corporation.

In Illinois a corporation has no legal right to use any name other than that under which it was organized, and use by a corporation of a name different from its legal corporate name is against the public policy of the State. (Svenska Nat. Forbundeti Chicago v. Swedish Nat. Ass’n., (1917), 205 Ill.App. 428.) If Chicago Camcorp, Inc. found that its legal name presented a consumer identification problem, it could have changed its name pursuant to the Corporation Act. (Ill. Rev. Stat. 1967, ch. 32, par. 157.52—2.) This would have required action on the part of the directors, notice to the shareholders, a two-thirds vote of the shareholders plus a proper filing of an amendment of the articles of incorporation. (Ill. Rev. Stat. 1969, ch. 32, pars. 157.53, 157.56.) The mere invention of the name “General Painting Contractors Co.” and its designation as a division of Chicago Camcorp, Inc. gave rise to no new legal entity, nor did it inform creditors that Chicago Camcorp and General Painting Contractors were one and the same corporation.

The defendants next argue that if plaintiff intended to deal with the corporation, there is no liability on the officers and shareholders of the corporation. Defendants urge that the case of Pilsen Brewing Co. v. Wallace (1919), 214 Ill.App. 540, is authority for this proposition and applicable to the case at bar.

In Pilsen Brewing Co. the facts were as follows: Wallace was the President of Farmers Grain & Feed Co., a valid Illinois corporation. The corporate minutes showed that on or about June 18, 1912, a resolution was adopted by the directors to change the corporate name to Chicago Grains and Feed Company, but a certificate of amendment to the articles was never filed with the Secretary of State. Subsequently, Wallace began to conduct corporate business under the name “Chicago Grain and Feed Company” and entered into a contract with the Pilsen brewing Company whereby Chicago Grains was to purchase Pilsen’s entire output of wet grains. Chicago Grains defaulted and, when the corporation was adjudicated bankrupt, Pilsen sought damages from the former officers of the corporation under the theory of a statute which read:

“If any person or persons being, or pretending to be, an officer or agent, or board of directors, of any stock corporation, or pretended stock corporation, shall assume to exercise corporate powers, or use the name of any such corporation, or pretended corporation, without complying with the provisions of this act, before all stock named in the articles of incorporation shall be subscribed in good faith, then they shall be jointly and severally liable for all debts and liabilities made by them, and contracted in the name of such corporation, or pretended corporation.” Hurd’s Rev. St. (1917), p. 702, J. & A. par. 2435.

The court refused to apply the statute, reasoning at page 545 that: “Obviously it was the intention that the contract between the parties should be between the plaintiff and the corporation of which the defendant was president and Beaird was secretary, that is, the Farmers Grain and Feed Company. The defendant and Beaird assumed to exercise corporate power because of the legal existence of the Farmers Grain and Feed Company. It may be true that they thought that the name of the Farmers Grain and Feed Company, owing to the action of the stockholders of that company, had been changed to the Chicago Grains and Feed Company. In that, however, they were mistaken.”

In the case before us there is no evidence of any attempt to change the corporate name of Chicago Camcorp, Inc. beyond the testimony that Durchslag called General Painting Contractors a “division” of Chicago Camcorp, Inc. to alert the public to the nature of Chicago Camcorp s business. Thus, when plaintiff began dealing with General Painting Contractors, he was confronted with two entities: Chicago Camcorp, Inc. and its “division” General Painting Contractors. Testimony established that he considered the latter to be a “new company” formed by Durchslag. Unlike Pilsen Brewing Co. where the parties were dealing with one entity, it is not obvious that Anzalone was intending to do business with Chicago Camcorp when extending credit for materials on General Painting Contractors’ account. Anzalone’s intention was a question of fact which would appear to have been decided against defendant by the trier of fact. We, therefore, find Pilsen Brewing Co. distinguishable from the case at bar.

Finally, the defendants argue that because Anzalone dealt with General Painting as if it were a corporation, he should be estopped to deny its corporate existence. Defendants claim authority for this argument in the case of Cresswell v. Oberly (1885), 17 Ill.App. 281. This case is clearly distinguishable from the case at bar. In Cresswell, defendants attempted to form a corporation. They had performed all acts necessary, but for the final act which required them to file the certificate with the County Recorder, when they transacted some business with plaintiff. Thereafter, the certificate was properly filed and the corporation came into existence. Plaintiffs first sued the corporation and recovered a judgment against it. When they could not execute on the judgment, they sued the officers and shareholders of the corporation as partners for debts incurred prior to the fifing of the certificate. The court concluded at page 284: “But while the evidence fails to show a corporation fully organized at the time tire indebtedness in question accrued, we think the plaintiffs are precluded from alleging that its organization was not then complete. They have elected to treat said indebtedness as an indebtedness of the Corporation, and to use the corporation and obtain judgment against it therefore. So far as they are concerned, all question on that subject should be deemed to have been foreclosed. The judgment having the effect of an admission by the plaintiffs in the most solemn form, that the claim for which it was recovered was the debt of a corporate body, and therefore a debt in respect to which the members of the association were exempted from liability as partners, it should be held to operate against the plaintiffs as an estoppel.” [Emphasis added.]

Because there is no estoppel by judgment in the case at bar, Cresswell is not in point. Furthermore, if a theory of estoppel were to be involved, at the very least there would have to be a showing that Anzalone intended to deal with a corporation and that the corporation thereby was caused to change its position to its detriment. (Spreyne v. Garfield Lodge No. 1 (1904), 117 Ill.App. 253, 255.) The evidence in the trial court supports a conclusion that Anzalone was looking to Durchslag, not Chicago Camcorp, in his dealings that he was relying on Durchslag’s credit, not the credit of General Painting Contractors Co. This, in turn, supports a finding of liability of defendants as partners in General Painting Contractors Co. for the debts of the company.

Judgment affirmed.

McNAMARA, P. J., and DEMPSEY, J., concur.


author: Mr. PRESIDING JUSTICE ENGLISH

text:
    Chester Sturgeon, Plaintiff-Appellee, v. Paul Powell, Secretary of State, Defendant-Appellant.
    (No. 53595;
    First District
    August 20, 1971.

      William J. Scott, Attorney General, of Chicago, for appellant.
    Edward M. Platt and Joseph C. Platt, both of Chicago, for appellee.
   Mr. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court:

This appeal was originally taken by defendant from an administrative review judgment of the circuit court which set aside the action of defendant as Secretary of State in revoking plaintiff’s automobile operator’s license. In this court, plaintiff moved to dismiss the appeal on the ground of mootness. We granted the motion for reasons stated in Sturgeon v. Powell, 118 Ill.App.2d 382. Defendant appealed to the Illinois Supreme Court which decided that an actual controversy exists, and therefore reversed our judgment and remanded the cause to this court. (47 Ill.2d 99.) Accordingly, we allowed defendant’s motion to reinstate the case and granted the parties time to file further briefs which they elected not to do. Plaintiff has never filed a brief in this court.

Defendant’s argument is that plaintiff’s driver’s license was properly revoked under Ill. Rev. Stat. 1967, ch. 95½, par. 6—206(a)(4) when it was shown that he had, by unlawful operation of a motor vehicle, caused or contributed to an accident which had resulted in death or injury to a person. The evidence showed that plaintiff had originally been indicted for involuntary manslaughter when a motor vehicle driven by him struck and killed a child. Plaintiff pleaded guilty to the lesser charge of reckless conduct (Ill. Rev. Stat. 1965, ch. 38, par. 12—5), and was admitted to three years’ probation on September 21, 1967. PlaintifFs driving abstract, which is in the record, shows, in addition to the conviction just referred to, a 1963 conviction for speeding, an October 1964 conviction for disregarding a stop sign, a December 1964 conviction for speeding, involvement in an automobile accident in October 1965, and a November 1965 conviction of driving while his view was obstructed. The record did show, however, that at the time of the occurrence which resulted in probation, he held a valid operator’s license.

At the hearing in the office of the Secretary of State, plaintiff’s counsel represented that there had been an agreement with Mr. Wise, the Assistant State’s Attorney, that if plaintiff were to plead guilty to the reckless conduct charge, his driving privileges would not be jeopardized. The hearing officer, without objection, called Mr. Wise, who denied making any agreement not to attempt to effect revocation of plaintiff’s license. Plaintiff testified in his own behalf that the child kified in the accident had darted out in front of his car when he was going about 30 to 40 miles per hour. While the offense of reckless conduct need not relate to the driving of an automobile, the testimony before the hearing officer made it clear that the conduct involved in the instant case was the driving of an automobile by plaintiff.

The constitutional validity of the statute under which plaintiff’s license was revoked was upheld in Haswell v. Powell, 38 Ill.2d 161,164— 5. The rule with regard to administrative review of agency decisions is that they “are not to be set aside unless manifestly contrary to the evidence.” Turro v. Carpentier, 26 Ill.App.2d 156, 163; Kellogg Corp. v. Department of Revenue, 14 Ill.2d 434, 439.

Plaintiff has not demonstrated to our satisfaction that the decision of the Secretary of State was against the manifest weight of the evidence. The order of the circuit court setting aside the revocation of plaintiff’s license is therefore reversed.

Judgment reversed.

DRUCKER and STAMOS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Golston, Defendant-Appellant.
    (No. 53969;
    First District;
    August 20, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Lee T. Hettinger, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Themis N. Karnezis, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court:

On September 29, 1967, defendant pleaded guilty to a charge of burglary, and was placed on probation for five years. On January 4, 1968, defendant was required to show cause why his probation should not be terminated following a conviction for aggravated assault on December 13, 1967, for which he was sentenced to serve six months in jail. The court terminated defendant’s probation and sentenced him to a term of three to six years.

On appeal, defendant raises two points. First, he argues that the trial court erred in failing to advise him of his right to counsel at the hearing which resulted in probation revocation. Defendant’s second contention is that the sentence was improper because it was imposed for the reason that defendant had violated the court’s trust.

We find no merit in defendant’s first contention that the court failed to advise him of his right to counsel. Defendant was, in fact, actively and adequately represented by the same counsel at that hearing who had represented him on the original burglary charge. (See People v. Parks, 110 Ill.App.2d 455, 462.) We are aware of no authority supporting defendant’s proposition that when an accused appears before the court with his attorney, the judge must advise him that he has a right to that attorney, a different one, or none at all.

Defendant’s second contention is that the court improperly imposed its sentence for a violation of the court’s trust. At the time the court granted probation, the court advised the defendant that he was expected to report to the probation officer regularly, and stated: “Any violation of this probation will bring you right back before me and I will deal with anybody who violates my confidence most severely. Stay out of trouble.”

Defendant’s attorney advised the court at the hearing on probation revocation that the aggravated assault conviction had resulted from a fight between defendant and his “common law wife” over his removal of the furniture from the apartment where they had been living. In aggravation, the State’s Attorney reported that, prior to defendant’s burglary conviction in 1967, defendant had received two jail sentences in 1961, a sentence for aggravated assault in 1962, and in 1964 he had been placed on probation for petty theft, reduced from burglary. When the judge revoked defendant’s probation, he reminded him of the court’s earlier admonition, and told defendant that he had taken advantage of the court.

The statute applicable to sentencing a defendant found to be in violation of the terms of his probation is section 117 — 3(d) of the Code of Criminal Procedure: “If the court determines that a condition of probation has been violated, the court may alter the conditions of probation or imprison the probationer for a term not to exceed the maximum penalty for the offense of which the probationer was convicted. Ill. Rev. Stat. 1967, ch. 38, par. 117—3(d).

The penalty for burglary is a sentence for any indeterminate term with a minimum of one year. Ill. Rev. Stat. 1965, ch. 38, par. 19—1(b).

In the case of People v. Smith, 105 Ill.App.2d 14, 17—18, defendant claimed that where he had originally been placed on three years’ probation for armed robbery, a subsequent 7-to-15 year sentence on termination of probation demonstrated that he had been sentenced not for the original offense but for the subsequent one that had been committed in violation of his probation. The court rejected this contention, noting that the sentence was within the statutory limitation for armed robbery, and that defendant had a prior criminal record, and found no abuse of the trial court’s sentencing discretion. The defendant in that case also argued that the trial court’s displeasure with a defense witness resulted in his lengthy sentence. The reviewing court, at page 20, rejected this contention: “The judge was understandably bate when he revoked probation and sentenced the defendant. But that ire was caused by the defendant himself. Despite a prior criminal record and a plea of guilty to a serious offense, the defendant was granted probation. A few weeks later he committed a robbery. The judge was upset that the trust he had placed in the defendant had been betrayed * * w.”

We have previously recognized that a decision to revoke probation “always involves the finding that the probationer violated the trust placed in him when he was given the benefits of probation.” (People v. Livingston, 117 Ill.App.2d 189, 192.) It is time we further stated that such a breach of trust should not “overshadow the statutory mandate that the probationer be sentenced for the crime of which he was convicted, not for the acts of delinquency which may or may not justify revocation of probation.” (Ibid., p. 192.) Nevertheless, we did not imply that a probationer’s breach of the trial court’s trust is not to be a proper consideration in sentencing because that fact is relevant to defendant’s rehabilitation potential. As we also said in Livingston at page 192: “The primary purpose of our power to reduce sentences is to prevent arbitrary or oppressive treatment of offenders, and to provide penalties which are both proportionate to the circumstances of the case and which recognize differences in rehabilitation potential of offenders.”

The purpose of the rule that a sentence after probation violation relate to the original crime is that the probationer will also presumably receive appropriate punishment for the subsequent offense. See the Committee Comments to S.H.A., ch. 38, par. 117—3.

Defendant also argues that the circumstances involved in his original burglary conviction indicate that the 3-to-6 year sentence was unnecessarily harsh. The only evidence in the record concerning that conviction is that defendant had a dispute with a cleaning establishment over payment for decorator services rendered by him, and he decided to take some property of his customer in satisfaction of what he thought was due him. We have often stated that the trial court is in a superior position to determine a proper sentence in a given case. (People v. Livingston, supra, p. 192; and see People v. Taylor, 33 Ill.2d 417, 424.) This is especially time in the instant case, since the sentencing court had also conducted the original trial. We are of the opinion that the sentence does not represent an abuse of the trial court’s discretion and is affirmed.

Judgment affirmed.

DRUCICER and LORENZ, JJ., concur.