author: ALLOY, J.

text:
    Gustav Andeen, Administrator of the Estate of Gustav K. Andeen, Deceased, Constance Andeen, Executor of the Will of August Robert Carlson, Deceased, Plaintiffs-Appellees, v. Country Mutual Insurance Company, Bloomington, Illinois, Defendant-Appellant.
    Gen. No. 65-67.
    Third District.
    May 9, 1966.
    Rehearing denied July 7,1966.

      Donald A. Henss, of Moline, for appellant.
    Lloyd A. Schwiebert, of Moline, and Eagle & Eagle, of Rock Island, for appellees.
   ALLOY, J.

The cause before us involves an action by the insured, Gustav Andeen, Administrator of the Estate of Gustav K. Andeen, deceased, and Constance Andeen, Executor of the Will of August Robert Carlson, deceased, as plaintiffs against the insurer, Country Mutual Insurance Company, as defendant.

On September 22, 1963, a motor vehicle driven by Gustav Andeen in which his family was riding collided with a vehicle driven by a John Roxlau in Rock Island, Illinois. Roxlau was driving under the influence of intoxicating liquor and ran a stop sign. Andeen’s father-in-law was killed as a result of the collision. His father received crushing chest injuries which confined him to his bed until his death on May 7, 1965. The son received a deep brain injury and the daughter incurred a crushed pelvis. Blood tests taken of Roxlau showed an alcoholic content of .181. Roxlau was indicted for reckless homicide and entered a plea of guilty.

There was no insurance on the vehicle being operated by Roxlau but Andeen was insured with defendant Country Mutual covering injuries and death caused by an uninsured motorist with limits of $30,000 for one claim and $60,000 for claims arising from one accident. This policy provided that a judgment should not be obtained against the uninsured motorist without the written consent of Country Mutual Insurance Company. The policy also provided that if any person injured by an uninsured motorist could not agree with the insurance company as to the liability of the uninsured motorist or as to the amount of damages, then the matter should be settled by arbitration “upon written demand of such person or upon written demand of the company.”

Plaintiffs were unable to arrive at any settlement with Country Mutual Insurance Company. Eleven months after the collision, on August 26, 1964, the insurance company offered to settle the death claim and the three injury claims for a total of $16,000. The insurance company was advised that the case appeared to be one which would justify the payment of the limits under the policy and that the offer was so low as to make further discussion useless. All right to recover damages under the dramshop law would have expired within one year of the collision (1963 Ill Rev Stats, c 43, § 135), that is, on September 22, 1964. Plaintiffs, therefore, filed suit against the uninsured motorist, John Roxlau, and also filed dramshop actions, on September 14, 1964. Plaintiffs gave Country Mutual Insurance Company written notice of the filing of the suit against Roxlau with copies of the various complaints and advised that according to their information, Roxlau did not have any insurance. The insurance company did not reply to this letter. It did not appear in the suit filed against Roxlau or defend the suit and made no written demand for arbitration. The case against Roxlau was set for hearing before the Rock Island County Circuit Court and notice of this hearing was sent to the insurance company specifically referring to the cases by number and reminding the company that plaintiffs had filed complaints in the cases and specifically setting forth that the suit against Roxlau had been set for hearing on October 30, 1964, at 2:30 p. m. and that plaintiffs would ask that judgment be entered against Roxlau and also expressly requesting the written consent of the company thereto. Again, the insurance company did not reply. It made no attempt to defend the suit nor did it ask for arbitration. It simply did nothing. At the hearing in the Circuit Court of the suit against Roxlau, evidence Was presented fully both as to the circumstances of the collision and as to the damages. Following introduction of such evidence, the Circuit Court entered a judgment for Gustav K. Andeen in the amount of $45,000 and for the wrongful death of August Robert Carlson in the amount of $31,251.75.

Following the entry of such judgments, the present action was commenced as against Country Mutual Insurance Company. The insurance company filed a motion to dismiss on the ground that the judgments against Roxlau were obtained without Country Mutual Insurance Company’s consent. The motion was denied. In a memorandum opinion, the Circuit Court pointed out that Country Mutual Insurance Company had been given notice of the suit against Roxlau and of the hearing date but did nothing. The court stated that Country Mutual should either have consented to have the matter decided by the court, or if it desired arbitration, it should have demanded arbitration. Thereafter, Country Mutual Insurance Company filed an answer denying that Roxlau was intoxicated, denying that he pleaded guilty to the charge of reckless homicide, denying that plaintiffs were damaged as alleged, and denying that Roxlau was operating an uninsured vehicle. The insurance company also asked for a jury trial. The cause proceeded to trial before the court without a jury and plaintiffs introduced evidence of the circumstances of the collision and the damages including a complete transcript of the evidence presented in the original suit against Roxlau. Roxlau was called to the stand and testified that there was no insurance on the truck which he was operating at the time of the collision. The defendant insurance company presented no evidence contrary to the evidence presented by plaintiffs but called as its only witness an adjuster who testified with reference to the $16,000 offer to settle all the claims which was made some eleven months after the collision. At the conclusion of all the evidence, both plaintiffs and defendant made motions for judgment as a matter of law. The court allowed plaintiffs’ motion and entered judgment against Country Mutual Insurance Company for $60,000.

On appeal in this court, defendant contends that plaintiffs did not obtain “written consent” of the insurance company to proceed to judgment as against the uninsured motorist, as required by the policy; that the default judgment entered against the other driver did not determine the liability of plaintiffs’ insurer under the policy; that the case should have been submitted to arbitration as provided in the policy; and that the trial judge should not have heard the issues of fact in face of the defendant’s jury demand.

The first major contention of defendant insurance company is that it is not liable because it did not consent to the entry of judgment against the uninsured motorist Roxlau. The policy provision under consideration provides specifically:

“This policy does not apply ... to bodily injury to, or death of an Insured with respect to which such Insured or his representative shall, without the written consent of the Company . . . prosecute to judgment any action against any person . . . who may be legally liable therefor.”

In the case before us, the insurance company was given written notice of the suit as against the uninsured motorist and was also given specific written notice of the trial date and was requested to consent to the prosecution of said suit to judgment. Country Mutual Insurance Company did absolutely nothing. In Levy v. American Automobile Ins. Co., 31 Ill App2d 157, 175 NE2d 607, where an insurance policy provided, as does the policy before us, that judgment could not be obtained as against an uninsured motorist without first obtaining the consent of the company, the company arbitrarily refused to consent to such procedure and had denied responsibility under its policy. The court there stated, at page 164:

“There was an implied promise on the part of the Insurance Company that it would not unreasonably or arbitrarily withhold its written consent. The company gave no reason for its refusal to allow the plaintiffs to obtain a judgment against the uninsured motorist . . . Under these circumstances, the action of the company in arbitrarily withholding its written consent constitutes a violation of the implied provisions of the policy and consequently the exclusion clause is not a bar to this action.”

While it is true that at the time of the decision referred to, compulsory arbitration agreements were not valid under the laws of this state, the proposition for which the case is cited is still a valid precedent and neither an insurance company nor any other party can deliberately prevent the performance of a condition precedent to liability and then take advantage of such wrongful conduct to avoid responsibility under the contract.

The insurance company contention is also advanced that the judgments taken as against Roxlau are not binding on Country Mutual Insurance Company. In the case of Wert v. Burke, 47 Ill App2d 458, 197 NE2d 717, an action had been filed against an uninsured motorist and the insurance company sought to intervene on the ground that any judgment against the uninsured motorist would be binding on the company. The court in that case concluded that the judgment would be binding and permitted intervention and specifically stated, at page 456:

“It is clear from the foregoing cases that an insurance company which insures against injuries caused by an accident which arises out of the ownership or use of an uninsured automobile is within the requirement of the intervention act as one that will or may be bound by a judgment in an action brought by the insured against the owner or operator.”

There is no provision in the policy before us specifically providing that a judgment entered as against an uninsured motorist is not binding upon the insurance company either as to liability or amount as is true in some recent policies. The uninsured motorist coverage developments are referred to in the Second Annual Negligence Law Forum sponsored by the Institute on Continuing Education of the Illinois Bar 1964 (at page 25) where the author states that some companies have recently inserted a provision which specifically makes the judgment not binding upon the insurer as to the amount of damages or on the question of liability unless the judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company. As we have indicated, no such provision appears in the policy before us. The judgments obtained against the uninsured motorist, under the circumstances in this case, are binding upon the defendant insurance company.

Returning to the question of arbitration to which we have made reference in the course of this opinion, it is clear that arbitration agreements are valid under the law of this state. It is notable that in the policy involved in this case, arbitration is optional and not compulsory. The specific clause under consideration provides that if the person making a claim under the policy and the company do not agree as to the question of liability or as to the amount of payment “then, upon written demand of such person or upon written demand of the company” the matter or matters upon which the claimant or the company do not agree should be settled by arbitration in accordance with the rules of the American Arbitration Association. It is obvious that arbitration would only be instituted if either party makes a written demand for arbitration. It is also necessarily implied that a party desiring arbitration must demand arbitration within a reasonable time. The collision with which we are concerned occurred on September 22, 1963. The judgments were not entered against the uninsured motorist until over a year later on October 30, 1964. Neither the claimants nor the insurance company made any written demand for arbitration during that period. The judgment thereupon became binding on the insurance company under the precedents in this state, on October 30, 1964. No demand for arbitration was made until May 10, 1965, in conjunction with the present proceeding when no issues were in fact left to arbitrate. The optional arbitration provision with which we are concerned in this case is not the type of provision which was referred to in the Second Annual Negligence Law Forum to which we have referred above (at page 25), where the author states that for the purpose of such coverage a specific provision is recently made that, where the parties do not agree, the determination as to whether the insured is legally entitled to recover damages and the amount thereof shall be made by arbitration. In such case, arbitration is automatic and compulsory and is not optional. It is not conditioned on the making of a written demand for arbitration by either party.

The jury trial contention made by the insurance company is not consistent with the procedures undertaken by the insurance company in the course of the trial. Country Mutual Insurance Company proceeded to trial before the court without raising the point, which in itself would constitute a waiver of a jury trial (People v. Czaszewicz, 295 Ill 11, 128 NE 739). There is a serious question as to whether there was any question of fact upon which a jury could pass in the case.

The legislature of the state of Illinois has shown that the public policy of this state is to attempt to protect individuals from injuries and death as a result of collisions with uninsured motorists (Sobina v. Busby, 62 Ill App2d 1, 210 NE2d 769). Policy provisions involving uninsured motorists should be liberally construed to carry into effect the policy of the state to give full force and effect to such uninsured motorist provisions. Defendant insurance company was kept fully advised throughout the proceedings before us. It received written notice of the filing of the complaint and also specific written notice of the time for the hearing in the proceeding against the uninsured motorist. The company had every opportunity to defend the suit if it desired to do so or to demand arbitration if that is what it desired. The company did nothing. It did not ask for arbitration nor did it defend the suit against the uninsured motorist. It cannot take advantage of its own failure to act in order to avoid liability under the contract of insurance.

The judgments of the Circuit Court of Rock Island County were, therefore, proper and should be affirmed.

Affirmed.

CORYN, P. J. and STOUDER, J., concur.


source: Caselaw Access Project

author: TRAPP, P. J.

license: Public Domain

text:
    Ella Mae Clayton, Plaintiff-Appellee, v. Margaret Bellatti, Defendant-Appellant.
    Gen. No. 10,700.
    Fourth District.
    May 9, 1966.

      Robinson, Foreman, Rammelkamp, Bradney & Hall, of Jacksonville, for appellant.
    Schimmel & Schimmel, of Pittsfield, for appellee.
   TRAPP, P. J.

Defendant appeals from a judgment entered upon the verdict of a jury in the sum of $5000. Her post-trial motion for a judgment notwithstanding the verdict, or, in the alternative, for a new trial, was denied.

Plaintiff’s theory of the case is that the slowly moving automobile driven by her in a westerly direction was struck from the rear at the time when she was intending to turn left into a private drive with her left turn signal operating, but had not yet moved from the north lane, i. e., the west bound lane of travel, across the center line into and across the south lane, i. e., the eastbound lane of travel.

It is defendant’s contention that the plaintiff had executed a left turn into the driveway to the extent that her automobile was about one-half across the center lane so that the plaintiff’s car was in both the west and eastbound lanes of traffic; that defendant swerved her car to the right to avoid a collision with plaintiff’s car as it was in such position, so that the left front fender of defendant’s car struck the left rear corner of plaintiff’s.

It is defendant’s theory that under the facts in evidence, the verdict was against the manifest weight of the evidence and that the plaintiff was guilty of contributory negligence as a matter of law, in that the plaintiff was making a left turn when it was not safe so to do, in violation of chap 95%, § 162 (Ill Rev Stats 1961), and that by reason of mud and dirt covering them, the signal lamps of plaintiff’s car were not visible for 100 feet to the rear, in violation of chap 95%, § 206 (Ill Rev Stats 1961).

A review of the Abstract discloses that the testimony presented in behalf of the respective parties is irreconcilable, and that such evidence as is submitted through disinterested parties is ambiguous when one seeks to interpret it.

The complaint, as amended, contains no allegations which suggest that the making of a left turn over the highway was involved. In substance it is alleged that the defendant was driving too fast, contrary to the statute; that she failed to yield the right-of-way, contrary to the statute; that she failed to keep a proper lookout; and that she was following the car of the plaintiff too closely. All such allegations were denied.

As to the evidence relating to the making of a left turn, plaintiff testified to driving in a westerly direction to the home of her sister, and that as she approached the drive into the home, she intended to make a left turn and activated the automobile’s signal for a left turn; that she saw the car approaching from the rear in the rearview mirror and did not turn from her westbound lane of travel prior to the time of the collision. The witness, Vaniter, a sister of plaintiff and riding in the right front seat, testified in practically identical terms. It appears that this witness was sitting in the front seat at such angle that she could see defendant’s car approaching from the rear. These witnesses testified that the plaintiff’s car was travelling at a speed of about 20 miles per hour and that defendant’s car was approaching at a speed of about 45 miles per hour.

The defendant’s testimony is that she was overtaking plaintiff’s car while travelling at about 30 miles per hour and that as she was within two car lengths of the former it made a left turn across the center line so that it was broadside across the road; that when she observed the turning movement she swerved her car to the right and applied the brakes so that she was travelling about 5 miles per hour at the time of the impact, and the left front fender struck the left rear of plaintiff’s car.

Witness Heyer, then a member of the State Police, was called to the scene of the collision. He had no recollection of debris or skid marks upon the highway indicative of the point of impact. His testimony was that the plaintiff, in discussing the collision, stated that she was:

“Attempting a left turn into this house and she was struck from the rear,”

while the defendant had stated that she:

“Was attempting to pass a slow moving automobile.”

It appears to us that the testimony of each of the parties is contradicted by their reported statements. The witness, Fay, the partner of defendant’s husband, who was called to the scene of the accident, testified that he heard the plaintiff say that she was making a left turn.

Upon the issue of the condition of the signal lamps of plaintiff’s car, the plaintiff admitted that they may have been dusty; her witness, Yinyard, who had followed plaintiff in the City of Jacksonville to a place of meeting, testified that the rear of plaintiff’s car looked clean; while plaintiff’s brother, Ronald Evans, testified that the rear of the car, following the accident, was dusty but not muddy. The defendant, on the other hand, testified that plaintiff’s car was dirty and muddy; that as she approached the car she saw no turn signal or stoplight illuminated. Witness Fay, a partner of defendant’s husband, testified that he was present at a test of the signal lamps following the collision and that the right rear signal lamp was covered with dry mud and dirt (the left rear signal lamp had a broken lens but the bulb was operating for the test). The State Policeman, Heyer, testified as to a test of plaintiff’s signal lamps following the collision and said that the right lamp was covered with dirt and mud, and difficult to see. He was permitted to express the opinion that it could not be seen at a distance of 80 or 40 feet.

We review the testimony as to the damage to the automobiles for the reason that the jury may have considered such evidence of physical condition in an effort to clarify the testimony as to the facts of the occurrence. It seems clear that the left stoplight or turn signal of plaintiff’s car had a broken lens, but that the light bulb hung upon the wires intact and continued to operate following the collision. Plaintiff testified as to the damage to her car in the left rear and the left corner of the bumper. No photographs are in evidence. One Stevenson, a neighbor of defendant, stated that the injury to plaintiff’s car was basically in the rear and a little to the side, while defendant’s car was damaged at the left front headlight. The witness, Fay, heretofore identified, testified that plaintiff’s car appeared to be struck at the left rear corner and the taillight broken, but he recalled no damage to the quarter panel. Witness Bellatti, the husband of the defendant, testified that the taillight assembly, the left side of the rear bumper and the fender to the rear of the left rear wheel were damaged. It was his opinion that the left rear fender had been hit at an angle of 45 degrees. The defendant testified that her left front fender had been bent back against the wheel so that the tire would rub against the wheel.

Considering the facts as put into the evidence, this seems to be a case for determination by the jury, testing the credibility of the witnesses in the light of their appearance and manner of testifying, both upon direct and cross-examination. It is for the jury to reach a conclusion from this welter of testimony. It is the contention of the defendant that the plaintiff admitted, during the trial, that she had made a left turn from the west lane across the east lane prior to the time of the collision. In his argument, he refers to the question asked the plaintiff, on cross-examination, as to the location of her car with reference to the center line when it was struck, to which she answered, “It was settin’ (sic) north and south on the opposite side of the road.” Both the Abstract and the record disclose, however, that in questions immediately following on cross-examination, the plaintiff stated that her car was in the north lane at the time it was struck. In the same vein, counsel argue that, in closing argument, the lawyer for plaintiff admitted that plaintiff was making a left turn. We do not find that such is an accurate statement as abstracted. He stated that the plaintiff had her signal lights on and started to make the left turn but she didn’t cut over the center lane of the road, but straightened out and held the course on down the line.

By reason of this record we are unable to say that there is any basis to hold that the plaintiff was guilty of contributory negligence as a matter of law, or that the verdict of the jury is contrary to the manifest weight of the evidence.

There are, however, certain rulings of the trial court, during the trial of this case, which require consideration by reason of the fact that the evidence was highly controverted, and the jury was called upon to arrive at its verdict where the evidence was close.

The plaintiff testified that just prior to the time of the collision, she looked into the rearview mirror and saw the automobile driven by the defendant approaching rapidly. By stipulation of counsel, certain questions and answers from a discovery deposition of the plaintiff were stipulated to be correct. The sum and substance of the testimony of the plaintiff on discovery was that she had never seen the defendant’s car approaching from the rear and that for at least 200 feet prior to the time of the collision, she had not looked into the rear-vision mirror. The portions of plaintiff’s deposition, appearing in the record, do not disclose whether plaintiff, upon discovery, had testified to making a left turn across the center line.

Such an admission would be significant if the jury were disposed to accept the testimony of the defendant. On the other hand, if the jury were to adopt the plaintiff’s version of the facts immediately preceding the collision, the admission would have no particular relevance. Upon being cross-examined concerning the asking of the questions on deposition, and her answers thereto, plaintiff responded by saying that she did not remember, or that the question wasn’t asked, or the answer made in the manner set forth in the transcript of the deposition. Upon redirect-examination, over objection of defendant, plaintiff’s counsel was permitted to ask, “Alright, as to the best of your recollection, is what you have testified to at your pretrial discovery deposition the same as you testified here today?”, to which the witness was permitted to reply, “Yes.”

Where a witness has been shown to have made a statement contradictory to the testimony, it is proper on redirect to give the witness an opportunity to state the facts which will explain or reconcile the statements, or to show the meaning of the statement which appears to contradict her testimony. Schmitt v. Chicago Transit Authority, 34 Ill App2d 67, 179 NE2d 838; Forslund v. Chicago Transit Authority, 9 Ill App2d 290, 132 NE2d 801.

On the contrary, it is not proper, on redirect-examination, to rehabilitate the witness by simply having a reaffirmation of the testimony given on direct-examination, or simply asking the witness to state that the testimony at the trial was true without explanation of the contradictory testimony. Forslund v. Chicago Transit Authority, 9 Ill App2d 290, 132 NE2d 801; People v. Hicks, 28 Ill2d 457 at p 462, 192 NE2d 891.

A further error which requires consideration under the facts of this case is that at the trial, State Trooper Heyer was asked, on cross-examination, as to whether or not he had issued an arrest ticket to the plaintiff, and he answered that he had not. No objection was made to such question, or answer. During the course of plaintiff’s argument, plaintiff’s counsel argues that he was going, “A little bit further in the damages because I feel that Mrs. Clayton, here, through no fault of her own,” and then referred to the fact that the Trooper had examined the accident and had not issued an arrest ticket. This argument also referred to a City policeman who was at the scene but was not called as a witness, and it was inferred that he had not seen fit to issue an arrest ticket against the plaintiff. Counsel continued as set out in the Abstract:

“Now I am going to leave you with that thought on the ticket proposition. I am not going any further on it.”

As to this argument, objection was made, and over-ruled by the court on the ground that the evidence was in the record.

Such argument is, of course, completely irrelevant to the issues of the case and is not proper, particularly having in mind the argument concerning the City policeman who was not a witness in the case. Where there is a sharp conflict of testimony upon the issues of the case, it is important to prevent the improper conduct of counsel. Rudolph v. City of Chicago, 2 Ill App2d 370, 119 NE2d 528. It does not appear to us that the absence of objection to the testimony of Heyer makes the argument proper.

Where the jury is called upon to consider evidence of the character and quality found in this case, and the testimony is in complete conflict, it appears that the errors last described are prejudicial to the degree that the cause should be reversed and the case remanded for a new trial.

Reversed and remanded.

SMITH and CRAVEN, JJ., concur.


author: SMITH, J.

text:
    In the Matter of the Guardianship of Clare Susan Nichols, Barbara Bair Nichols, Julia Marie Nichols, and Stanley Bair Nichols. Dorothy Bair Nichols, Deceased, Plaintiff, v. Ira G. Nichols, Jr., Defendant. Ira G. Nichols, Jr., Defendant-Respondent-Appellee, v. Nancy Ann Nichols, Intervening Petitioner-Appellant.
    Gen. No. 10,706.
    Fourth District.
    May 9, 1966.

      Reno, O’Byrne & Kepley, of Champaign (J. Michael O’Byrne, of counsel), for appellant.
    Summers, Watson & Kimpel, of Champaign, for appellee.
   SMITH, J.

The mother of five children, to whom custody had been awarded in a divorce decree almost five years before, died on May 15, 1965. A little over 80 days later, the father filed his petition to modify the decree and sought custody of the four minor children. An adult daughter, then 19 years old, intervened and asked that she be named their guardian and be awarded their custody. The trial court awarded custody of the oldest minor daughter to her adult sister, the intervening petitioner; and the custody of the remaining three children to their father. The intervening petitioner appeals. There is no cross-appeal by the father. The sole issue is the claim that the trial court order is contrary to the manifest weight of the evidence on the issue of the best interests of the children.

The father and mother were married November 16, 1944, and divorced January 10, 1961, at the suit of the mother charging extreme and repeated cruelty. The mother did not remarry. On October 17, 1961, the father married his present wife, a widow with a married son and a son 13 years old. All parties resided in the Champaign area until January 1963, when the father and his new family moved to Ocean Springs, Mississippi, near Biloxi, where he is employed on the medical staff at a Veteran’s Hospital at an annual salary of $14,500. At a conference on June 18, 1965, the girls stated they did not want to go with their father to Mississippi. His petition for custody was filed the same day. The intervening petition followed immediately. Issues were made up and a full hearing followed. At the time the ages of the children were as follows: Nancy, intervening petitioner, 19; Clare, 16; Barbara, 13; Julia, 11; and Stanley, 7.

The trial court had before him a family unit which had been shattered once by divorce and now by the death of the parent to whom custody of the children had been originally awarded. A regrouping and readjustment of that unit was now required. The question was when, where, and with whom. In this tense emotional atmosphere, it is to be anticipated that we would have some difficulty in determining what is fact and what is fictional innuendo in this record.

At the outset we would put back in the closet any question of economics or the physical aspects or atmosphere of the home which the children own in Champaign and the father’s home in Ocean Springs. Both homes would appear to be amply adequate. It further appears that about a year before the divorce, the first Mrs. Nichols established a trust now valued at some $250,000, and which on her death was to be divided into separate trusts for each of the five children. Both the interest and the principal are available, if needed, for the support of the children and the principal is distributable at ages 25 and 30. The maternal grandparents are named as trustees along with one James M. Goff. In addition, the children’s mother was a partner in a business from which she had been paid $1,200 per month for some five years and which she had overdrawn about $25,000.

Nancy, with a commendable sense of understanding and moral responsibility, would keep the children together in the home they own in Champaign and where they had lived for eleven years. Nancy had been away from home attending school at Sacred Heart in Springfield for four years and for one year in college at Lincoln, Illinois. Clare had just completed her second year at Sacred Heart, wanted to complete her high school education in Champaign, did not want to go with her father, and felt that he had not displayed much interest in them. The father acquiesced in her request and the trial court properly respected the wishes of Nancy, Clare, and the father. Nancy too wanted to complete her education at the University of Illinois and we think there is sound reason for the order keeping the two girls together. In so stating, we do not intend to infer that the request of a minor child, standing alone, is necessarily either decisive or controlling on the question of custody even though sixteen years old. See Stickler v. Stickler, 57 Ill App2d 286, 206 NE2d 720, where this issue is met head on and appropriately applied. It is just one factor for consideration.

The other three children also expressed a reluctance to go with their father and a desire to remain in Champaign with Nancy. As was observed in Stickler, it would be an abdication of judicial responsibility to grant such a request willy-nilly. No matter with what linguistic niceties you may seek to clothe it, the stark, naked rule in this State, both legislatively proclaimed and judicially declared, is that the right of a natural parent to the custody of his minor child yields to no one unless it can be said that he has forfeited that right or unless the “welfare” or “best interest” of the child or “good reason” exists to take that right away from him. Ill Rev Stats 1965, ch 3, ¶ 131. Giacopelli v. Florence Crittenton Home, 16 Ill2d 556, 158 NE2d 613; McAdams v. McAdams, 46 Ill App2d 294, 197 NE2d 93; Jayroe v. Jayroe, 58 Ill App 2d 79, 206 NE2d 266; People v. Jenkins, 34 Ill App2d 255, 180 NE2d 359; Kokotekian v. Kokotekian, 23 Ill App2d 171, 161 NE2d 712; Stalder v. Stone, 412 Ill 488, 107 NE2d 696; Nye v. Nye, 411 Ill 408, NE2d 300. To review each of these cases is to unduly extend this opinion. Suffice it to say that the terms “welfare,” “best interest,” “good reason,” and “fitness” have been discussed and applied in a multitude of circumstances, a variety of relationships and, depending upon the type of proceedings, with varying emphasis. We would paraphrase McAdams when we say that we deal with a contest between one with a legal right to custody, unless we take it away from him, coupled with a legal duty to support and educate and one with no legal right to custody, unless she is awarded it, and no legal duty to educate or support. In this context, we box in “welfare,” “best interest,” “fitness,” and “good reason” with the material, moral, and emotional qualities and responsibility of the parent together with the ability and willingness to give the care, affection and training which the parental relationship implies. We turn now to the picture painted in this record.

For an indeterminate period ranging in the testimony from six months after the divorce to a long time before the custody hearing, an itinerate sign painter moved into the home occupied by the mother and the children. The children admired and respected him, consulted him as to their problems and enjoyed his companionship and the things he did for them. There is no suggestion of immoral or improper conduct in his relationship with them. His exact status in the home remains in limbo. He did not testify. It seems clear that his presence did little to encourage cooperation between the mother and father as to visitation rights — indeed an altercation between him and the father took place shortly before present litigation began. The trial court, on its own motion, ordered his effects removed from the home and directed him not to return pending the further order of the court. He moved next door.

The original divorce decree provided payments for child support at the rate of $400 per month with visitation on alternate Saturdays from 12 noon to 7:00 p. m., on alternate Sundays from 12 noon to 7:00 p. m. and for two weeks vacation in the summer. During 1961, there was apparently reasonable compliance with these provisions. In 1962, the father testified that visitation was denied him by the mother and the sign painter or both; that she was frequently intoxicated; would not admit him to the house and on many occasions had taken the children elsewhere when he was supposed to visit them; that Christmas and birthday cards were intercepted and not delivered to the children; that he discontinued payments in September, 1962, because of a denial of visitation and because he felt that the money was going for liquor and the painter; that he knew the mother had ample means; that judgment for the period covering September, 1962, to October, 1963, was entered and no payments were made on it; that Barbara called in October, 1964, and again in January, 1965, complaining of the mother’s conduct; that the mother told him to come and get them; that he suggested it was in the midst of the school year and it ought to be deferred until the school was out; that the temporary court order in this case gave the father visitation rights and the right to take the three children out of the State upon posting a performance bond; that the bond was filed late and objections were filed to it although the plane tickets were there and available; that he did not go into court to enforce visitation rights nor seek the custody of the children until after the mother’s death; that he attended a dance with Nancy in 1962, at Sacred Heart and visited Barbara in the hospital in 1962. By her calls, Barbara, then the oldest child at home, considered her Dad a haven of refuge as late as January, 1965. His reaction to her request does not appear to be unreasonable at the time.

The mother is now gone. Her conduct is of little consequence except it might furnish a basis for the father’s frustrations and his failure to exercise the rights and perform the duties that were his. The conduct of neither serves as a model for the conduct desired from divorced couples. The issue now is not what might or ought to have been done, but what must be done now. The omissions of yesterday are not necessarily the commissions of today nor the prophecy of tomorrow. It is unfortunate that the visitation of last summer did not materialize. From it might well have come the directional flags which the trial court sought. The trial court heard and saw the witnesses. His order and his findings ought not be disturbed unless against the manifest weight of the evidence. We cannot say that the conduct of this father amounts to an abandonment of his children or a forfeiture of his rights to their custody. Even if it may be said that he has been remiss in his duties, the opportunity to reform should be afforded him. Nothing in this record suggests that he cannot and should not assume his legal obligations as a parent and adequately supervise, control, and provide the parental guidance to which these children are entitled. Albeit she is willing, Nancy’s life ought not be burdened with an obligation to her brothers and sisters which is presently secondary rather than primary. The trial court appropriately required both Nancy and the father to post bond for their faithful performance of their custodial duties. Should either fail in the responsibilities imposed by the decree, the trial court may exercise appropriate sanctions. In our judgment, the order of the trial court is a proper resolution of a difficult situation and it is accordingly affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


author: PRESIDING JUSTICE TRAPP.

text:
    Betty Pickett, Plaintiff-Appellant, v. Anne Sodaro and Louis Sodaro, Defendants-Appellees.
    Gen. No. 10,675.
    Fourth District.
    May 9, 1966.
    Roy M. Rhodes, of Springfield (Robert M. Magill, of counsel), for appellant;
    Jasper S. Gullo, of Springfield, for appellee.
   Opinion by

PRESIDING JUSTICE TRAPP.

Not to be published in full.


author: JUSTICE SMITH.

text:
    Richard G. Fritz, Plaintiff-Appellee, v. Donald Bess, Defendant-Appellant.
    Gen. No. M-10,693.
    Fourth District.
    May 9, 1966.
    Kenneth E. Evans, of Decatur (James E. Fuson, of counsel), for appellant;
    Armstrong, Winters, Prince & Tenney, of Decatur (Joseph M. Laraia, of counsel), for appellee.
   Opinion by

JUSTICE SMITH.

Not to be published in full.


author: CRAVEN, J.

text:
    Tenis Fosen, Plaintiff-Appellant, v. The Odell Grain & Coal Company, Defendant-Appellee.
    Gen. No. 10,681.
    Fourth District.
    May 9, 1966.
    Rehearing denied June 20,1966.

      Fellheimer & Vicars, of Pontiac, and Irving Goodman, of Chicago, for appellant.

      Smith & Satter, of Pontiac, for appellee.
   CRAVEN, J.

The plaintiff’s hand was injured in an auger being used in the process of unloading corn at a storage facility of the defendant, Odell Grain and Coal Company. At the time of the injury, plaintiff was delivering corn of a neighbor with whom the plaintiff exchanged labor.

On the date of the injury, while unloading the corn, using an auger belonging to the defendant, the plaintiff reached into the corn hopper surrounding the auger in order to keep some corn from spilling out of the hopper and, in the process, his hand was caught in the auger. No safety guard was on the auger. A jury trial resulted in a verdict for the plaintiff with damages fixed at $7,500. There is no controversy as to the damages.

The trial court entered judgment for the defendant notwithstanding the verdict, and this appeal is from that judgment.

The trial court assigned no reasons for its action, although the motion for judgment notwithstanding the verdict asserted three possible grounds for the obtained relief — that the defendant was not negligent, that the plaintiff was guilty of contributory negligence, or that the doctrine of “assumption of risk” bars recovery.

Assumption of risk was urged by the defendant as an affirmative defense to the action. This affirmative defense was stricken on motion of the plaintiff. This action by the trial court was not error.

In Hall v. Gerdes, 68 Ill App2d 119, 215 NE2d 8 (1966), it was held that the doctrine of assumption of the risk is applicable only to cases arising between master and servant and we there referred to the case of Hensley v. Hensley, 62 Ill App2d 252, 210 NE2d 568 (1965). Hensley has an extended discussion of the application of assumption of risk. It is clear here that there was not in existence a master-and-servant relationship.

In considering the other two urged grounds for judgment notwithstanding the verdict, we are mindful of the well-established rule that a motion for judgment notwithstanding the verdict raises only the question of whether there is any evidence which, taken in its aspects most favorable to the plaintiff, proved or tended to prove a cause of action. Moss v. Wagner, 27 Ill 2d 551, 190 NE2d 305 (1963). Neither this court nor the trial court, in passing upon the motion, can weigh the evidence or pass upon the credibility of witnesses. Ferguson v. Lounsberry, 58 Ill App2d 456, 207 NE2d 309 (1965), and cases there cited.

The evidence in this case shows that the plaintiff, at the time of the injury, was a customer or invitee of the defendant, and indeed the plaintiff was characterized by the manager of the defendant grain company as a regular customer at the time of the injury and as a person who has been a good customer since that time. We deem it unnecessary to recite in lengthy detail the testimony as to the use and operation of the auger.

It can be described as a grain auger for loading grain in storage bins, with a metal hopper, and surrounding the metal hopper a tarp or canvas for catching any grain that might spill from the hopper. On the particular date of the injury, the auger was apparently in an elevated position and in a diagonal, rather than a horizontal, placement. The exposed portion of the auger was covered by the corn in the hopper and was about six inches below the surface of the corn. The evidence is, further, that the plaintiff was generally familiar with this auger but not specifically familiar with its placement and elevation on the date of the injury. The evidence shows that the defendant had only one employee working with the loading at the time of the injury here involved; whereas, on other occasions, two employees were involved. No warning as to the danger was given to the plaintiff by the defendant.

We have not considered the conflicting testimony with reference to custom and usage as to safety guards on augers or the type of augers generally in use, for the reason that,

“A custom or usage cannot alter or change the standard of conduct required by law, and the fact that a thing is done in the usual way does not furnish excuse for a failure to exercise proper care or for negligent conduct. . . .” 28 ILP Negligence sec 26. (Citations omitted.) Ferguson v. Lounsberry, 58 Ill App2d 456, 207 NE2d 309 (1965); Garrett v. S. N. Nielsen Co., 49 Ill App2d 422, 200 NE2d 81 (1964).

In view of this state of the evidence, we are of the opinion that the question of whether the defendant was negligent in failure to cover the exposed part of the auger, or failure to warn the plaintiff, was a question of fact for the jury. Inasmuch as we can be concerned only with the narrow question of whether there is any evidence to sustain the verdict of the jury, we must conclude that if the action of the trial court in entering judgment for the defendant notwithstanding the verdict was based upon a conclusion that there was no evidence tending to prove the defendant’s negligence, such action was in error.

Our remarks with respect to the sufficiency of the plaintiff’s proof as to the defendant’s negligence are equally applicable to the remaining point, that plaintiff was guilty of contributory negligence as a matter of law. There is no suggestion in this record that the plaintiff knew, or should have known, of the dangerousness of the auger by reason of its particular placement in the elevated position. The evidence is not sufficient to conclude that the plaintiff, knowing of the danger, persisted in a negligent course of conduct, as in Ferguson. Rather, the question of whether the plaintiff was contributorily negligent was a question of fact on this evidence, and not action that can be characterized as contributory negligence as a matter of law. See Bartolomucci v. Clarke, 60 Ill App2d 229, 208 NE2d 616 (1965); Piper v. Lamb, 27 Ill App2d 99, 169 NE2d 164 (1960), and cases there cited.

This record does not sustain the entry of a judgment notwithstanding the verdict either because of the absence of negligence on the part of the defendant or the presence of contributory negligence as a matter of law on the part of the plaintiff. It follows, therefore, that the action of the trial court in granting judgment notwithstanding the verdict was error, and that judgment is reversed. The cause is remanded to the circuit court of Livingston County with directions to enter judgment upon the verdict.

Reversed and remanded with directions.

TRAPP, P. J. and SMITH, J., concur.


text:
    Fred W. Schaffer and Nancy Schaffer, Plaintiffs-Appellees v. Phillip Dorsey, Defendant-Appellant.
    Gen. No. 10,702.
    Fourth District.
    May 9, 1966.

      Phillips, Phebus, Tummelson, Barth & Follmer, of Urbana (Darius E. Phebus, Hurshal C. Tummelson, George G. Bryan, John T. Phipps, of counsel), for appellant.
    Summers, Watson & Kimpel, of Champaign (Robert C. Summers, of counsel), for appellees.
   TRAPP, P. J.

Defendant appeals from a judgment in the sum of $21,000 entered upon the verdict of a jury. The several post-trial motions of the defendant were denied.

While it is stated in the brief and argument of the defendant that, under the facts, the issue of liability was close, there is no argument presented. The defendant does not present any argument as to the judgment for damages to Nancy Schaffer entered upon the jury verdict.

An issue raised upon this appeal is whether or not the trial court erred in refusing to withdraw a juror and grant a motion for mistrial, following a reference to an unidentified insurance company during the testimony of the attending physician for plaintiff.

In the course of the direct examination, the physician was testifying to certain conditions for which plaintiff had been treated. The general subject matter of the interrogation was the ability of the plaintiff to return to his former employment with a railroad section crew, and the effect of shortness of breath and the condition of plaintiff’s upper extremities in relation to such work. The witness included in his testimony, the following:

“This I pointed out in my report. I do not know if it was to you (plaintiff’s attorney), or whether it was to the insurance company, I do not know, but I pointed this out that in view of that fact I sent Mr. Schaffer to the I. C. evaluation board up at the I. C. Railroad Hospital in Chicago.”

No motion to strike the answer was made but defendant’s counsel asked to be heard outside of the presence of the jury. There was no request that the court instruct the jury to disregard the testimony or that the answer be stricken, but counsel moved for the withdrawal of a juror and the declaration of a mistrial. The trial court denied the motion.

We believe that the fundamental test has been stated in Williams v. Consumers Co., 352 Ill 51, 185 NE 217. In that case, a witness for the plaintiff was asked to state what he had done following an accident, to which he replied that he had reported the accident to a superior, and had been sent to the insurance company. As here, there was no motion to have the answer stricken or the jury instructed to disregard the answer, but there was a motion for mistrial. The Supreme Court opinion noted that it had found no cases granting a mistrial where the answer of a witness was inadvertent or unresponsive to a legitimate inquiry. Rather, mistrial results generally from the improper remarks or conduct of counsel which appears calculated to prejudice the jury, and the court concluded that the trial judge was satisfied that the answer of the witness was without obvious design or intent, either on the part of the witness or of the attorney, to prejudice the defendant. The record here discloses that the trial judge in this case reached the same conclusion in its ruling. In Rench v. Bevard, 29 Ill App2d 174, 173 NE2d 1, the defendant’s medical witness volunteered the comment that he was asked to examine plaintiff and report to the insurance company, but there being no further reference to the subject, the court followed the reasoning of the Williams case. In Steward v. DuPlessis, 42 Ill App2d 192, 191 NE2d 622, the court followed the rule of the Williams case where it appeared that the trial court concluded that counsel did not seek or anticipate the unresponsive reference to the insurance company made by the witness. See also Sphatt v. Tulley, 38 Ill App2d 229, 186 NE2d 670.

A second ground for appeal urged is that the trial court erred in refusing to strike certain testimony of plaintiff’s attending physician relating to the measurement of the “vital capacity” of the plaintiff following his injury. This testimony was a part of the direct examination of the plaintiff, and defendant conducted his cross-examination until he chose to conclude it. No objection was voiced by defendant’s counsel concerning the testimony as to “vital capacity” during the course of direct or cross-examination. Plaintiff thereafter proceeded with a further witness and rested his case. The defendant thereupon called a witness and continued the presentation of evidence until a noon recess. Upon the resumption of the trial, defendant moved the court to strike all of the testimony of the attending physician adduced upon the subject of “vital capacity,” urging as a ground therefor that the results of the test were hearsay; that there was a want of sufficient foundation for the admission of the testimony; that no report of the test was admitted into evidence for purposes of cross-examination; and that the test was subjective and made for purposes of testimony only inasmuch as it was taken some ten days or two weeks prior to the trial.

In this court, it is urged that the term “vital capacity” was extremely prejudicial in influencing the jury.

The trial court appeared to conclude that the test might be compared to an unauthenticated x-ray, but expressed concern as to how he could instruct the jury as to the testimony at this stage of the trial. Following such colloquy, the plaintiff called as a witness the inhalation therapist employed by a Champaign hospital. It appears from the record that this witness explained the operation of the apparatus, and even demonstrated the machine and its use in the presence of the jury. The record discloses that the results of the tests are automatically recorded by the machine upon a graph or chart, and that the test chart or graph was delivered to the attending physician pursuant to the established practice in the hospital. In describing the operation of the machine during the taking of the test, there was as much cross-examination as was desired as to the methods employed, the experience of the operator, and the possibility was explored that the person taking the test might not make a maximum effort so that the question of the reliability of the test was presented to the jury.

Upon the point of reliability, it is argued that the attending physician testified that he had no knowledge of the reliability of the apparatus, but we have examined the record with considerable care and find no such testimony.

The testimony of the attending physician was that the test as to “vital capacity” relates to the interchange of air in the lungs through the maximum inhalation and exhalation of the patient. One of the results of the test is to determine the maximum capacity of the lungs to hold air. The attending physician testified that the result of the test showed plaintiff’s capacity to be 2.6 liters of air, whereas the normal maximum capacity of an individual would be 3.5 or 3.6 liters, having regard to his height, weight and age. This testimony was a part of the testimony concerning the crushing of plaintiff’s chest and the deformity resulting from the crushing and fractures of ribs on both sides, such being relevant, in the opinion of the witness, to plaintiff’s shortness of breath.

We do not believe that the trial court erred in refusing to strike the testimony. It has been generally held that an objection to testimony or a motion to strike must be timely. In Reule v. City of Chicago, 268 Ill App 266, it was held that an objection to the admission of an x-ray made after the close of the plaintiff’s evidence was not timely and that it was not reversible error to admit it. In Gorden v. Gorden, 283 Ill 182, 119 NE 312, it was held that evidence must be objected to at the time it is given. See also Levy v. City of Chicago, 331 Ill App 612, 73 NE2d 643.

We doubt that it is proper to consider the testimony of the physician as to “vital capacity” as hearsay, as it can only be concluded from the record that the testifying doctor himself made the analysis or report of the test, and that he applied to the graph, self-recorded by the apparatus, such factors as the age, weight and height of the plaintiff to determine the measurement of capacity found. It is clear that the therapist, giving the test, did not make such analysis. It appears that the trial court determined that the testimony, as to the giving of the test and the demonstration of the machine, was an adequate authentication of the making of the test and we do not think that he erred.

As to the contention that there was error because no graph or chart was presented in court for purposes of cross-examination, and that the test was made in preparation for trial but limited to subjective symptoms and hence not properly admitted, no objection was made in apt time within the rule stated above.

Again, it appears that substantially the same testimony has been presented in another form without objection. Gorden v. Gorden, 283 Ill 182, 119 NE 312. One Dr. Peterson, an orthopedic surgeon, testifying to an ex-animation of the plaintiff, stated that he had measured the chest expansion of the plaintiff and that, as measured, the chest expansion was 1.25 inches, whereas the normal chest expansion of an individual would be 2 to 4 inches. He further testified that such condition had not improved during the course of two years. Assuming as normal a minimum expansion of 2 inches, it appears that plaintiff’s capacity as to chest expansion was 62 percent of normal. This appears consistent with the expressed opinion of the attending physician that the test of “vital capacity” disclosed that plaintiff’s maximum lung capacity was about 65 percent of normal.

It is urged that the use of the term “vital capacity” is highly prejudicial with the jury. No objection was made upon this point during the trial and nothing appears in the record to indicate that such is not proper terminology within the medical profession. The examining physicians, testifying in behalf of the defendant, were not asked as to the propriety of the nomenclature, and it does not appear that they made any test or examination as to chest expansion. The term “vital capacity” was described by plaintiff’s physician in terms of the interchange of air in the lungs. So far as this record discloses, there was no effort to employ it as a magical incantation. While defendant’s brief and argument asserts that the damages are excessive, we find no place where it is pointed out in what way the award is excessive under the evidence. The matter -of excessive damages was urged during the course of the post-trial motion, but it appears that the trial court was not persuaded. We must conclude that there was no reversible error in this trial.

The judgment of the trial court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: PRESIDING JUSTICE BRYANT.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Adams (Impleaded), Defendant-Appellant.
    Gen. No. 49,994.
    First District, Second Division.
    May 10, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant;
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BRYANT.

Not to be published in fulL


author: MR. JUSTICE LYONS

text:
    In the Matter of the Estate of Carl Jorgensen, a/k/a Holger C. Jorgensen, Deceased. William Goldammer, Claimant-Appellant, v. Edward Fredricks, Administrator with the Will Annexed of the Estate of Carl Jorgensen, Deceased, Defendant-Appellee.
    Gen. No. 50,641.
    First District, Second Division.
    May 10, 1966.

      Sidley, Austin, Burgess & Smith, of Chicago (Alice M. Bright, George W. McBurney, Arthur F. Staubitz and Sylvia 0. Decker, of counsel), for appellant.
    Earl B. Lichten, of Chicago, for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a final order entered against claimant, William Goldammer, said order sustaining an amended motion to dismiss filed by defendant Edward Fredricks, Administrator with the Will Annexed of the Estate of Carl Jorgensen, deceased.

In 1923, decedent, Carl Jorgensen, a brother-in-law of claimant William Goldammer, borrowed sums from Adolph Goldammer and Mrs. Adolph Goldammer, claimant’s father and mother, and from Goldammer Brothers, a partnership consisting of claimant and his brother, Otto Goldammer. These loans, which were invested in a bowling enterprise, were evidenced by four promissory notes, one payable to the order of A. Goldammer in the amount of $600; one payable to the order of Mrs. Goldammer in the amount of $2,000; and two payable to the order of Goldammer Brothers in the amount of $1,700 and $1,000 respectively. The notes were payable on demand, each bearing interest at the rate of six percent per annum after date, and each containing the following provision:

. . . and to secure the payment of said amount I hereby authorize, irrevocably, any attorney of any Court of Record to appear for me in such Court, in term time or vacation — at any time after maturity, and confess a Judgment without process, in favor of the holder of this Note..... (Emphasis added.)

In 1943 claimant purchased from his mother, Minnie Goldammer, the two notes made payable to her and her late husband, with checks totaling $7,805, said sums representing the principal plus compound interest due on the notes to that date. The other two notes were acquired by claimant from Goldammer Brothers. In 1957 claimant demanded payment on all four notes from decedent, in a total sum, including interest, of $15,919.

Allegedly at the time of claimant’s demand in 1957, decedent acknowledged that the amount demanded was due and owing, but stated that he wished to retain the funds to play the market. Furthermore, it was also alleged that claimant and decedent entered into an oral agreement whereby claimant would forbear his right to confess judgment on the notes; that decedent would pay, upon demand, the aggregate amount then due and owing, together with six percent interest thereon, if he were able to do so; that if upon demand, decedent were unable to pay, he would provide by his will for the payment of the aggregate amount; and that decedent and his wife would deliver 23.625 shares of Dearborn-Jackson Recreations, Inc. stock to claimant as collateral security for decedent’s obligation to claimant. Pursuant to this agreement, a certificate representing 23.625 shares of stock of Dearborn-Jackson Recreations, Inc., registered in the name of decedent’s wife, was delivered to claimant.

Shortly before Christmas 1963, claimant demanded payment from decedent, of the total amount, which then amounted to $22,525.33. Decedent allegedly acknowledged that this amount was due but stated that he still wished to retain the funds. At that time, claimant and decedent allegedly entered into a second oral agreement whereby claimant agreed to forbear his right to sue to enforce payment of decedent’s obligation and decedent agreed to provide by will for payment to claimant at the time of decedent’s death of the sum of $22,525.33, together with interest thereon at the rate of six percent per annum.

Claimant’s theory of the case is that the trial court erred in dismissing claimant’s amended claim in (1) that the defense of the Statute of Limitations was waived by the warrant of attorney contained in the notes made by decedent and his wife, (2) that decedent’s delivery to claimant, in 1957, of 23.625 shares of stock of Dear-born-Jackson Recreations, Inc., as security for the debt evidenced by the notes made by decedent and his wife, constituted an unequivocal acknowledgment of the existence of the debt and a waiver of the defense of the Statute of Limitations and (3) that an action to enforce decedent’s oral agreements with claimant to provide for payment of the notes by decedent’s will is not barred by the Statute of Limitations in that said Statute of Limitations did not commence running until decedent died on February 20,1964.

Defendant’s theory of the case is that the claim against decedent’s estate is barred by the Statute of Limitations in (1) that the confession of judgment clause in subject notes did not waive the Statute of Limitations, (2) that the alleged pledge of stock was insufficient to remove the bar of the Statute of Limitations and (3) that the alleged contract to make a will was without consideration and could be nothing more than an oral acknowledgement of the promissory note debt.

The applicable statutory provision, found in Ill Rev Stats (1963) c 83, par 17, reads as follows:

17. Writings' — New Contract. § 16. Except as provided in Section 2-725 of the “Uniform Commercial Code,” enacted by the Seventy-second General Assembly, actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within 10 years next after the cause of action accrued; but if any payment or new promise to pay shall have been made, in writing, on any bond, note, bill, lease, contract, or other written evidence of indebtedness, within or after the period of 10 years, then an action may be commenced thereon at any time within 10 years after the time of such payment or promise to pay. . . .

We agree with claimant’s contention that decedent’s delivery to claimant, in 1957, of 23.625 shares of stock of Dearborn-Jackson Recreations, Inc., as security of the debt constituted an unequivocal acknowledgment of the existence of the debt and a waiver of the defense of the Statute of Limitations.

In re Souder’s Estate, 169 Pa 239, 32 A 417 (1895), a preexisting debt was held not barred by the Statute of Limitations, because the transfer of 140 shares of stock was a distinct acknowledgment of the debt from which a promise to pay was reasonably deducible.

The administrator’s contention, that an unindorsed stock certificate is not part payment unless accompanied by an actual writing, is invalid. Lawrence v. I. N. Parlier Estate Co., 15 Cal2d 220, 100 P2d 765 (1940); People’s Bank of Harrisville v. Continental Supply Co., 213 Ky 44, 280 SW 458 (1926). Payment may be established by parol evidence. Wright v. Stinger, 269 Ill App 224 (1933); Ott v. Flinspach, 143 Ill App 61 (1908); Lathrop v. Carrol, 155 Ill App 653 (1910); Thayer v. Bolender, 250 Ill App 16 (1928). Moreover, actual delivery of the certificate makes an indorsement unnecessary. The pledgee has an equitable lien upon the certificate and the shares it represents. See Dunscombe v. Crocker-Wheeler Elec. Mfg. Co., 249 NY Supp 223 (1931), and Brown v. Hotel Ass’n, 63 Neb 181, 88 NW 175 (1901).

It is true that a transferee has the right to compel an indorsement. The Uniform Commercial Code provides a “specifically enforceable right to have any necessary indorsement supplied.” Illinois Rev Stats (1965) c 26, par 8-307. Likewise its predecessor, the Uniform Stock Transfer Act, Ill Rev Stats (1957) c 32, par 424, states:

Transfer of certificate without indorsement. The delivery of a certificate by the person appearing by the certificate to be the owner thereof without the indorsement requisite for the transfer of the certificate and the shares represented thereby, but with intent to transfer such certificate or shares, shall impose an obligation, in the absence of an agreement to the contrary, upon the person so delivering, to complete the transfer by making the necessary indorsement. The transfer shall take effect as of the time when the indorsement is actually made. This obligation may be specifically enforced.

The indorsement, however, is necessary only for the transferee to become a “bona fide purchaser” as against third parties. As between the two parties here contending, delivery alone is sufficient to effect a transfer. The Uniform Commercial Code states that “against the transferor the transfer is complete upon delivery. . . .” Illinois Rev Stats (1965) c 26, par 8-307. Thus, the claimant could obtain title on the books of the corporation by reason of the delivery of the certificate in 1957. The pledge was, therefore, effective as a pledge and as an acknowledgment of the debt.

We find we are in disagreement with claimant’s first contention that the confession of judgment clause waived the Statute of Limitations. We need not consider claimant’s third contention.

For the above reasons, the order is reversed and the cause remanded with directions to proceed in a manner not inconsistent with this opinion.

The order is reversed and the cause remanded with directions to proceed in a manner not inconsistent with this opinion.

BRYANT, P. J. and BURKE, J., concur.


author: MR. JUSTICE BURKE

text:
    Continental Casualty Company, Plaintiff-Appellant, v. Burlington Truck Lines, Inc., Defendant-Appellee.
    Gen. No. 50,961.
    First District, Second Division.
    May 10, 1966.
    Walter F. Cebelin and E. C. F. Meier, of Chicago, for appellant.
    Richard J. Schreiber, of Chicago, for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This appeal is taken from a judgment for defendant. Plaintiff executed a miscellaneous bond to the State of Illinois guaranteeing the remission of C.O.D. payments collected by Filbey Freight Lines, Inc., from the consignees of Filbey’s customers. Filbey failed to remit collections of $1,000 to its customers, thereby requiring payment by plaintiff of that amount to the unpaid customers. Plaintiff, as subrogee, seeks to recover from Burlington Truck Lines, Inc., the $1,000 paid by plaintiff under its bond obligation.

Prior to January 27, 1959, Filbey was insolvent, its books showing liabilities in excess of assets in the amount of $25,330.90. In addition, there was a $27,271.-68 income tax liability to the Federal Government. On January 27, the Filbey board of directors and stockholders adopted a resolution accepting an offer by defendant, Burlington Truck Lines, Inc., to purchase Filbey’s operating rights for $30,000. Filbey’s treasurer, Philip Makin, was authorized to execute all necessary papers to effect the transfer. Makin was further authorized, as “true and lawful attorney for this corporation,” to sell or otherwise dispose of all Filbey’s assets.

The operating rights were sold to defendant on February 24, 1959, by way of an escrow agreement under which the Internal Revenue Service acquired a first lien on the purchase price. Defendant received the Filbey Certificate of Public Convenience and Necessity, temporary operating rights pending approval of the transaction by the Illinois Commerce Commission for $500 per month which was to be credited against the purchase price, and a 5-year covenant by Filbey not to engage in the trucking business in the area encompassed by its Certificate of Public Convenience and Necessity. On November 10, 1960, the Attorney General of Illinois effected an involuntary dissolution of Filbey Freight Lines, Inc. It appears that the entire $30,000 in the escrow has been consumed by the federal taxes and the interest thereon, and that there are additional taxes due and owing the Federal Government from Filbey.

Plaintiff filed suit directly against defendant on the ground that the parties to the sale of Filbey’s operating rights did not comply with the notice provisions of the Illinois Bulk Sales Act and consequently the sale was fraudulent and void as to creditors. Ill Rev Stats 1959, c 121%, pars 78-80(a). Defendant admits no notice was sent to Filbey’s creditors regarding the sale, but maintains that the sale of intangible assets does not fall within the Bulk Sales Act.

This matter arose prior to the effective date of the Illinois Commercial Code and is therefore governed by the Bulk Sales Act, which provides in part:

“The sale, transfer, or assignment in bulk of the major part or the whole of a stock of merchandise, or merchandise and fixtures or other goods and chattels of the vendor’s business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the vendor’s business is fraudulent and void as against the creditors of the vendor, unless the vendee shall . . . .” Ill Rev Stats 1959, c 121%, par 78.

We are of the opinion that the sale of intangible assets is not covered by the Bulk Sales Act.

The Act applies to the sale in bulk of a major part or the whole of “a stock of merchandise, or merchandise and fixtures or other goods and chattels of the vendor’s business.” No cases have been cited, or found, holding that the sale of intangible assets is covered by the Act. Plaintiff relies on the case of St. Paul-Mercury Indemnity Co. of St. Paul v. Hoey, 325 Ill App 693, 60 NE2d 641, as apparently standing for the proposition that the sale of intangible assets falls within the Bulk Sales Act. The Hoey case does not so hold, and plaintiff’s citation to the headnote of that abstract opinion at 60 NE2d 641 is misleading. The court in the Hoey case was concerned with whether the sale of trucks constituted a “major portion” of the vendor’s business, and expressly-stated, at page 3 of the opinion, that “although the certificate of authority to operate was included in the sale, we think the value thereof must be disregarded in determining whether the transaction falls within the provisions of the act. . . .” The case of People ex rel. Nelson v. Sherrard State Bank, 258 Ill App 168, 176, on the other hand, expressly states that the Bulk Sales Act applies only to tangible property. Plaintiff maintains that the case of Continental Illinois Nat. Bank & Trust Co. of Chicago v. Peoples Trust & Savings Bank, 366 Ill 366, 9 NE2d 53, overruled the Sherrard case. The Continental case, however, deals solely with matters arising under the Illinois Constitution and the Banking Act, and in no way concerns itself with the question of whether the Bulk Sales Act covers intangible property.

Furthermore, the Bulk Sales Act applies only to a sale of a “major part or the whole of” a vendor’s assets. Zenith Radio Distributing Corp. v. Mateer, 311 Ill App 263, 35 NE2d 815. At the time of the sale of the operating rights to defendant, the value of Filbey’s assets approximated $120,000; the operating rights were sold for the sum of $30,000, constituting only 25% of Filbey’s total assets.

Finally, it should be noted that a failure to comply with the provisions of the Bulk Sales Act gives no direct remedy by a vendor’s creditors against the vendee, and does not make the vendee a debtor of the vendor’s creditors. As stated in Grossfield & Roe Co. v. Zanni, 239 Ill App 442, at page 446:

“Although a sale may be fraudulent and void, as against creditors, by reason of the Bulk Sales Act, it does not follow that the vendee immediately becomes a direct debtor so as to be liable, for example, in assumpsit, to the creditor. The fact that the sale is void as to creditors by reason of the Bulk Sales Act may be taken advantage of in proper proceedings by the creditor (Ogden Ave. State Bank v. Cherry, 225 Ill App 201; Page v. Wright, 194 Ill App 149), but that fact may in no way be said to give rise to a new obligation on the part of the vendee directly to the creditor, that is, such an obligation as may be enforced by the creditor against the vendee in a suit at law. Chicago Specialty Shoe Co. v. Uhwat, 197 Ill App 460.”

Even if there were a failure here to comply with the Act, which there is not, plaintiff has no direct right of action against defendant.

The judgment is affirmed.

Judgment affirmed.

BRYANT, P. J. and LYONS, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Jean Frances Jaskowiak, Administrator of the Estate of Stanley Chuchla, Deceased, and Conservator of the Estate of Justyna Chuchla, Incompetent, Plaintiff-Appellee, v. Village of Posen, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 50,438.
    First District, Third Division.
    May 12, 1966.

      Vincent J. Biskupic, of Oak Brook, for appellant.
    Robert C. Eardley, of Chicago (Rosemary E. Duschene, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from a default judgment entered on behalf of plaintiff, charging as error the denial of a motion to vacate the judgment. Suit was commenced in 1957 against the village, various village officials and other persons, based upon the alleged establishment and usage as a street of property belonging to the then owners, two of whom were the predecessors of plaintiff, and charging that thereby these defendants had committed trespass. The defendants appeared and answered, denying vital allegations and raising substantial defenses. The case was dismissed for want of prosecution in 1960, but was reinstated in 1961. At that time interrogatories were propounded to the then president of the village and, upon his failure to answer, an order of compliance was entered by the court. The case was put on the passed call calendar in early 1963, where it remained until December, 1964.

Meanwhile, certain of the officers of the village had been replaced and the village attorney who had entered his appearance for the defendant in this proceeding was replaced by another attorney. He also resigned and was replaced by the present village attorney. By uncontroverted affidavits it is shown that the attorney of record believed that after resigning, he delivered the file of the case to the village treasurer, but that neither that officer nor the other officers nor the current village attorney actually received the file or had actual knowledge of the course of the proceedings.

In November 1964, the case was reactivated and on January 6, 1965, it was assigned for trial. The former attorney for the village, who remained the attorney of record, was notified by telephone that trial was to commence that day, and over the telephone he asked the trial judge to delay the trial until the afternoon. The trial judge, it appears, also tried to contact the present village attorney, who could not immediately be reached. After a confusing series of conversations, the judge without notice to the defendant village struck its answer and entered a default against it. At the same time the court dismissed all the other defendants. Damages were then proved up before a jury and judgment was entered on a verdict of $1,500.

On the following day the current village attorney found out about the case and within 30 days moved the court, pursuant to section 50(6) of the Civil Practice Act, to vacate the default judgment, submitting numerous affidavits of present and past village officials and attorneys. The village also submitted answers to the interrogatories propounded in 1961 and certain additional pleadings which raised defenses not raised in the original answer, and declared that it was ready to proceed to trial. No papers were filed in opposition to the motion. The trial court denied the motion, and that order is charged as error.

The vacation of a judgment within thirty days, pursuant to section 50(6) of the Civil Practice Act, is within the sound discretion of the court and may be made “upon any terms and conditions that shall be reasonable.” Factors which have been considered in past cases reviewing the exercise of this discretion are whether the defendant has a meritorious defense, whether defendant’s delay was culpable and whether plaintiff was substantially prejudiced. As has been observed, defendant has raised substantial defenses and this is not controverted. Plaintiff argues that the delay was culpable and that it prejudiced her. Failure of the village to be present in court on January 6, 1965, was not due so much to the neglect of its officers or even of its former attorney, who was the attorney of record, as to a confusion in record keeping which is understandable in the government of a small municipality in the process of changing its part-time officials who had charge of the matter. Such confusion is not always to be excused, but where, as here, the plaintiff has herself let seven years of inaction pass by, a sound discretion would have warranted the vacating of the judgment and proceeding to a trial on the merits.

We took with the case a motion to add to the record a transcript of the proceedings which took place at the time the motion to vacate was heard. This transcript was presented to the trial court for certification, and although no objection was made to its accuracy the certificate was withheld. We agree with the opinion of the court rendered in Torrance v. City Nat. Bank of Rockford, 32 Ill App2d 288, 177 NE2d 646, that under these circumstances it would be judicial wheelspinning for us to send the case back for certification of the transcript. The motion has been allowed.

The judgment is reversed and the cause is remanded with directions to reinstate the answer and proceed to a trial on the merits, and for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

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


author: MR. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Lemon, Defendant-Appellant.
    Gen. No. 50,536.
    First District, Third Division.
    May 12, 1966.

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

delivered the opinion of the court.

Thomas Lemon was found guilty in a non jury trial of the unlawful sale of narcotic drugs and, after a hearing in aggravation and mitigation, was sentenced to the penitentiary for a term of ten to twelve years. He appeals contending that there is a reasonable doubt of his guilt.

On October 15, 1964, Chicago police officers Nadile, Craig and Sullivan arranged with Roy Carter to take part in a controlled purchase of narcotics. He was searched and no money or narcotics were found on his person. After making a telephone call he told the officers that he needed $44. The money was drawn from the contingency fund at the Central Police Station and the serial numbers on the money were recorded. Carter was searched again and then given the prerecorded money. All four proceeded in an unmarked squad car to the vicinity of 16th Street and Keeler Avenue in Chicago. Carter left the car and stood at the corner of the two streets. The car was parked facing south on Keeler in the middle of the block north of 16th Street. Carter was under police observation at all times.

Carter had been waiting about five minutes when the defendant Lemon drove up and told Carter to meet him at 16th and Tripp, a block to the west. Lemon drove off. Carter returned to the squad car and, following the officers’ direction, walked west on 16th Street toward the meeting place. The three policemen immediately drove south on Keeler, turned west into an alley just south of 16th Street and parallel to it and continued west to the parking lot of a supermarket on 16th at Tripp. From their parking place they could look north across 16th toward a garage on the northwest corner of 16th and Tripp. Officer Nadile went into the supermarket and watched the garage from there. They saw Carter coming along 16th Street and approach the garage; Lemon was standing in the doorway. The time which had elapsed between Lemon’s leaving 16th and Keeler and when they saw him again was not more than three minutes. Carter had been out of their sight even a shorter time. They could see the car Lemon had been driving in the garage.

Craig and Sullivan observed Carter and the defendant meet inside the doorway of the garage where they held a brief conversation and exchanged some items hand to hand. Carter then moved out of the doorway and took off his hat. This was the prearranged signal at which the officers moved in and arrested Lemon. They searched him and found the currency which had been initially given to Carter; on Carter they found a tinfoil package containing white powder which they field-tested. They put the package into an envelope, sealed it and delivered it to a police department chemist, who later determined the substance to be heroin.

The defendant did not testify in his own behalf. His sole witness was the owner of the garage on whose premises the sale took place. The owner testified that he had seen the defendant “on and off” before the day of the arrest and that on that day the defendant had been in the garage for about ten minutes and his car had been there about an hour prior to the arrest. He said the car had been pushed into the garage and that the battery had been charged which took half an hour to 45 minutes. He also testified that the defendant paid him $2 for his services and that the police took the $2 from him saying that the money was marked.

The defendant points out inconsistencies in the testimony of the prosecuting witnesses and discrepancies between the testimony of the police officers and a police report made by them. These relate to whether the informer was searched before or after he made his telephone call [presumably to Lemon] ; as to how and when the prerecorded money was obtained; as to whether the defendant was walking or driving; whether the sale took place inside or outside the garage; whether officer Craig was sitting in or standing at the side of the squad car when Carter and Lemon met the second time; whether the officers had a clear view of the defendant at either 16th and Keeler or 16th and Tripp; as to the exact hour when the offense occurred, and as to the correct name of the informer who was called Jones in the police report. The defendant also points to the fact that the informer was not under continuous surveillance by the police officers and that while the informer and the policemen testified that all of the money was recovered from the defendant, the garage owner testified that $2 was in his possession.

There were variations in the testimony but they were inconsequential. The effect of the minor testimonial discrepancies upon the credibility of the witnesses was a matter for the trial’s court’s determination. People v. Morgan, 28 Ill2d 55, 190 NE2d 755 (1963). The essential elements of the crime charged were clearly established and Lemon’s guilt was proved beyond a reasonable doubt.

The defendant also argues that the testimony of the informer is incredible because he was a narcotics addict and had used narcotics on the day of the arrest and on the day he testified. He further argues that Carter’s version of the events differed from the other witnesses so as to be almost uncorroborated.

The testimony of an informer and a narcotics user must be carefully considered and closely scrutinized. In this case all precautions were taken to make sure that no external factors would operate on the informer to cause him to do anything other than as instructed. The surveillance kept of him was adequate. The testimony of the informer was believable and was sufficiently corroborated by the other witnesses and evidence. We repeat what this court said in People v. Martin, 63 Ill App2d 492, 211 NE2d 753 (1965) :

“The fact that a witness is a narcotics addict and a police informer has a definite bearing upon his credibility as a witness and, while he is not placed by his participation in the sale in the position of an accomplice, the situation is sufficiently similar to that of an accomplice to warrant close scrutiny of his testimony. . . . These factors, however, affect his credibility but they do not necessarily render it unworthy of belief. . . . Likewise, the quality and quantity of the evidence supporting his testimony affect his credibility. The test is whether, under all the surrounding circumstances, the testimony of the informer is believable. People v. Norman, 28 Ill2d 77, 190 NE2d 819.”

The conviction is affirmed.

Affirmed.

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


author: JUSTICE SCHWARTZ.

text:
    Robert Jones, Plaintiff-Appellant, v. Joseph Reuss, d/b/a J & J Service Station, Defendant-Appellee.
    Gen. No. 50,551.
    First District, Third Division.
    May 12, 1966.
    Gomberg & Missner, of Chicago (Sidney D. Missner, of counsel), for appellant;
    Jacobs and McKenna, of Chicago (Barry L. Kroll, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard J. Davis (Impleaded), Defendant-Appellant.
    Gen. No. 50,716.
    First District, Third Division.
    May 12, 1966.

      Thomas J. Maloney, of Chicago (Richard H. Devine, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Richard Davis was indicted for the crime of theft and tried by a jury. He was found guilty and sentenced to the penitentiary for from three to eight years.

In this appeal he contends that he was not proven guilty beyond a reasonable doubt in that his identification was vague and uncertain. He also contends that the trial court erred in limiting the cross-examination of the witness who identified him.

About noontime on June 18, 1963, Hilliard Judis, a salesman of women’s clothing, parked his light-colored, 1963 Ford automobile bearing a Florida license in a parking lot adjacent to a restaurant on the corner of Cicero and Peterson Avenues in Chicago. In the car were six navy blue bags containing clothing samples, two in the rear seat area and four in the trunk. Judis locked his car, went into the restaurant, ate lunch, came out and drove to his destination which was a fifteen minute drive from the restaurant. Upon arriving there he discovered that the two grips in the back seat were missing. He immediately returned to the restaurant and there met and talked with James Grossman. He then checked the trunk of his car and found that the other bags were also gone.

Grossman had been using a telephone in a booth adjacent to the parking lot. He had observed a man transferring blue objects from a light-colored Ford automobile with a Florida license plate to a 1957 Chevrolet. Another man was sitting in this car. Grossman wrote down the license number of the Chevrolet and then went in the restaurant, spoke to the manager and ate lunch. Upon coming out he met Judis and a police officer. That night Grossman went to a police station and witnessed a lineup of seven or eight men. Among them he saw Davis, who was dressed differently than when he had seen him at noontime, and recognized him as the man he had seen removing the objects from the auto with the Florida license.

At the trial, in addition to the foregoing, Grossman testified that he had observed Davis for about two minutes, that he was wearing a blue, short-sleeved shirt and dark colored trousers, and that he was between the two cars which were about 70 feet away. Although at first he did not remember the exact description he had given to the police at the scene two years before the trial, he recalled on further examination a statement he had given which described the defendant as “about 30 years of age, approximately five feet ten tall, 190 pounds, dark hair and was wearing a blue knit polo shirt and dark trousers.”

Police officer Herbert Blum testified that he went to the restaurant, talked to Judis and placed a radio message regarding the license number of the Chevrolet. Police detective Karl Mueller was assigned to investigate the theft and he found the license number belonged to the defendant. He went to the address in Downers Grove given on the license application but Davis was not living there; he traced him to an address in Chicago. After waiting two hours Mueller saw a car passing by which answered the description he had. He followed the car and stopped it at a red light. The driver was Davis. Mueller’s arrest slip described Davis as 6'1" tall and weighing 235 pounds.

Davis told Mueller that earlier in the day his automobile had been loaned to Joseph Frabotta. Frabotta was located and questioned. He said that he had used Davis’ car to run some errands for 20 or 30 minutes around 1:00 o’clock that day. He said he could not remember what the errands were. Frabotta was indicted with Davis and they were tried together. Neither one took the witness stand. The only witness for Davis was a girl friend who had known him for five years and who testified his weight and height had not changed during that time. At the close of all the evidence the court found Frabotta not guilty.

We do not agree with defendant’s contention that his identification was vague and uncertain. Gross-man’s testimony was positive and credible. He had a good vantage point and an adequate opportunity for observing the defendant and he later was able to identify him, even though he was dressed differently, in a lineup of several men. The description and information he gave the police enabled them to trace the defendant and led directly to his arrest a few hours after the theft. The positive testimony of one credible witness is sufficient to sustain a conviction. People v. Soldat, 32 Ill2d 478, 207 NE2d 449 (1965); People v. Mack, 25 Ill2d 416, 185 NE2d 154 (1962); People v. Tunstall, 17 Ill2d 160, 161 NE2d 300 (1959). The difference between the defendant’s weight and height as described by Grossman to the police and as given in the police arrest slip and stated by the defense witness, is not of crucial significance. Davis was bending over and was reaching into the automobiles at the time Grossman saw him. The variation in the weight and height does not destroy the credibility of the eyewitness but only goes to the weight to be given his testimony. Minor imperfections in the descriptions were factors for the jury’s determination. People v. Robinson, 30 Ill2d 437, 197 NE2d 45 (1964); People v. Morgan, 28 Ill2d 55, 190 NE2d 755 (1963).

We also do not agree with the defendant that the cross-examination of Grossman, the sole identifying witness, was unduly limited by the court. We have examined the record and it is apparent that the cross-examination was particularly thorough. All the circumstances surrounding Grossman’s observations at the scene and at the lineup were carefully gone into. The defendant makes much of the fact that initially Grossman did not remember the exact description he had given the police at the time of the theft, and the defendant complains that the court did not permit his counsel to go into this description. The fact that at the time of the trial Grossman did not remember the details of an oral unrecorded statement given by him two years earlier does not make his testimony unworthy of belief. People v. Brown, 16 Ill2d 482, 158 NE2d 579 (1959). He remembered making a written statement at the time of the showup and when questioned about this recalled the description he had given in that statement. The defendant’s attorney on recross-examination asked him if this was the same description he had given the police in the parking lot of the restaurant. The court sustained an objection to the question. While we believe the question should have been permitted we find no substantial error in the court’s ruling. The witness had stated on cross-examination that he did not remember exactly what he told the police at the restaurant but that he hoped the earlier and later statements were the same. The question asked on recross was repetitious, exploratory and without factual basis. The defense attorney at no time contended that he had proof that the two statements were contradictory or inconsistent.

The evidence established the defendant’s guilt beyond a reasonable doubt and, since the record is free of prejudicial error, the conviction will be affirmed.

Affirmed.

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


author: JUSTICE CREBS.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mary Jane Spears, Defendant-Appellant.
    Gen. No. 65-48.
    Fifth District.
    May 12, 1966.
    Rehearing denied June 3,1966.
    Paul H. Ferguson, Ferguson & Ferguson, of Decatur, for appellant;
    Robert Lee Bowman, State’s Attorney, of Shelbyville, for appellee.
   Opinion by

JUSTICE CREBS.

Not to be published in full.