text:
    Village of Midlothian, a Municipal Corporation, Plaintiff-Appellee, v. Village of Robbins, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 50,849.
    First District, Fourth Division.
    March 10, 1967.

      McCoy, Ming & Black, of Chicago (Walter K. Black, of counsel), for appellant.
    Elbert F. Elmore, of Midlothian, Village Attorney, and Robert J. Nolan, Special Counsel, of Chicago, for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Defendant appeals from a decree approving a Master’s report and entering a declaratory judgment in favor of plaintiff. A water supply contract between plaintiff and defendant was declared null and void because of impossibility of performance, and plaintiff was excused from further obligations thereunder.

Plaintiff moved to dismiss this appeal, and we took the motion with the case. That motion is now denied, as we shall decide the appeal on its merits.

The contract was entered into on July 8, 1953, and provided in pertinent part:

(1) Robbins agrees to sell to Midlothian and Midlothian agrees to purchase from Robbins a supply of water subject to the provisions hereof.
(2) Midlothian agrees to use Robbins’ water exclusively during the period of this contract.
(9) The supply of water to be furnished Midlothian by Robbins hereunder shall not exceed an annual average of 400,000 gallons per day and not to exceed 500,000 gallons in any one day, for a period of ten years (10), after which time a new annual average and maximum day requirement shall be determined.
(10) This contract shall be in full force and continue in effect for a period of thirty (30) years from the date hereof.

For the purpose of showing the estimated population and water consumption figures on which the parties based the terms of the contract in question, plaintiff introduced into evidence, without objection by defendant, the 1953 report of an engineering firm hired by defendant, which report revised and brought up to date a 1951 report by the same firm. As found by the Master and Chancellor, also without objection or exception by defendant, the estimated population and water needs of the two villages as contained in this 1953 report formed the basis for the contract provision relating to maximum water requirements. Among other things, the report projected population growth and water consumption for both villages during the thirty-year period to be covered by the water supply contract. Robbins was purchasing water from the City of Chicago for its own use and, under the contract, for resale to Midlothian. The contract provided that Robbins was to construct piping and pumping facilities sufficient to meet the needs of the two villages. Specifically, it called for construction of a 12" line and pumping facilities considered adequate in the light of the following forecasts made by the report:

Water Needs Per Day
1953 1982
Robbins 336,000 1,071,000
Midlothian 227,500 535,500
Totals 563,500 1,606,500
Maximum Water available through 12" line
1,600,000 Gallons
per 24 hours
This is equal to Average 1982 day.
Year Population Population . . .
(Robbins) (Midlothian)
1953 5,200 CONSTRUCTION YEAR
1954 6,000 3,490
1962 11,060 5,410
1964 11,580 5,890
1983 15,920 7,730

It was apparent from this engineering advice that the maximum supply of water which Robbins was required to furnish Midlothian during the first ten years of the contract (“ . . . an annual average of 400,000 gallons per day and not to exceed 500,000 gallons in any one day, . . .”) would be well within the limits of water needs for that period, since it was based upon population figures projected for the thirtieth year of the contract. As found in the decree, however, the rapid growth of population and related water needs far exceeded engineering estimates and the expectations of both parties, and within ten years had gone beyond their contemplation at the time of the contract for the end of the thirty-year period.

The 1983 population of Midlothian was projected at 7,730, but a letter from the Bureau of the Census certified that in 1962 (according to a special census) “the population of the village of Midlothian, . . . was 8,749.” Further, in the testimony of the Mayor of Midlothian, he estimated that as of 1964, the population had risen to 11,183. Water consumption had risen at an even greater rate, and in the first six months of 1964, Midlothian’s daily average was 753,000 gallons, 162,000 gallons of which were acquired under emergency arrangements with the City of Blue Island. Again, this figure is far in excess of the projected Midlothian requirement of 535,500 gallons for 1982.

Returning to the date of the contract in 1953, when the 12" pipe and pumping facilities were constructed, it seemed reasonable to expect they would be sufficient for the intended purposes. As noted, the capacity of the system was estimated to be about 1,600,000 gallons per 24 hours. That this was a sound approximation of capacity is borne out by the testimony of an engineer who made a study of both the 1953 report and the supply system as it existed in July 1963. He testified that his study . . shows that the water required for Robbins and Midlothian in May of 1963 was about 1,700,000 gallons on an average per day” and that the system’s capacity “from an engineering . . . and . . . public health standpoint” would be only 1,400,000 gallons in a twenty four hour period. His opinion was that “. . . the facilities of the Village of Robbins to supply the Villages of Midlothian and Robbins are greatly inadequate.” This opinion was shared by two other experts whose testimony was relied upon by the Master in his recommendations and adopted in the Chancellor’s decree. It is important to note also in this regard the testimony of the Water Superintendent of Robbins. He said: “The amount of water supplied to Midlothian is the most we can supply them.”

By the end of the first ten-year period of the contract there had thus been no substantial increase in the Robbins piping and pumping facilities. Nor had the parties determined a “new annual average and maximum day requirement” as called for by the contract.

On cross-examination, the Mayor of Robbins admitted that at a conference held in January, 1964, the Mayor of Midlothian had requested additional supplies of water to the extent of one million gallons per day. This January conference was not the first attempt by Midlothian to alert Robbins to its increased needs. The Mayor of Midlothian testified that after his taking office in 1962, there had been about three meetings, telephone calls, and four or five letters, all in “an attempt in the last two years to get an increased water supply from Robbins.” In the early summer of 1962, Midlothian officials, with the permission of the Mayor of Robbins:

. . . put in a new pump, a 500 gallon per minute pump. We rewired the pump house. We hooked up their chlorinators and we rebuilt their other pump and reinstalled it. The purpose of doing all this was so we could get water. They weren’t able to pump it that time, with no pumps. This work cost the Village of Midlothian around $5,000.00.

In that same year, Midlothian found it necessary to go to the Village of Markham for water on three different occasions. At other times during the existence of the contract with Robbins, Midlothian had been forced to obtain additional water from Posen and Blue Island, as well. These outside sources were on an emergency basis, however, and could not be relied on routinely. All during the time that Midlothian was pumping additional water from these other sources, the water was coming into the Midlothian reservoirs in a continuous supply from Robbins at maximum capacity rate. If the reservoirs had filled, the supply from Robbins would have been automatically shut off, but this hadn’t occurred for at least two years prior to 1964. On one occasion subsequent to the January 1964 meeting, the Mayor of Midlothian had to place an emergency call to the Mayor of Robbins for water because of a fire at a time when Midlothian had only 250,000 gallons of water at its disposal.

Further support for the conclusion that the Robbins water system was inadequate to supply both villages, was specified in the Master’s findings as adopted verbatim by the Chancellor:

7) The water supply to Midlothian from Robbins became erratic when the population exceeded the estimated maximum population of that village and in 1962 no water was delivered to Midlothian on five days, in 1963 it was without water on nine days and for the first nine months of 1964 there was no water delivered for six days. On 400 days out of the two years, the amount of water delivered by Robbins to Midlothian was exceeded by the amount used by Midlothian.
9) The Defendant, Village of Robbins, in order to protect its own water supply had on occasions prior to 1962 shut off the supply of water to Midlothian and Midlothian secured an injunction requiring Robbins to leave its valves open at all times. After the injunction was served upon Robbins, its officials left all valves open, which admitted water from Chicago and permitted Midlothian to acquire water from Robbins so that the amount of water delivered to Midlothian during the period subsequent to 1962 is the maximum amount available from the Robbins water supply. During the period Midlothian left all its valves open at all times and took all the water from Robbins which the Robbins system could supply it.
11) These actions did not result in a sufficient supply and Midlothian purchased the additional amount needed for its inhabitants from all sources available to it, including an average purchase ranging from 125,000 gallons per day to 162,000 gallons per day in 1964 from the City of Blue Island during those months when that City had a supply in excess of its own needs and purchasing additional amounts from the Villages of Markham or Posen as supplies were available and emergencies required their purchase.

In seeking to improve Midlothian’s water supply, its authorities were not merely attempting to meet their personal or political obligations to the residents of the village. Subject to a fine of $100 to $1000 and/or imprisonment up to five years, custodians of public water supplies are required by statute to maintain a continuous supply of water, safe in quality and adequate in quantity. Ill Rev Stats (1963), c 111%, §§ 121.g. and 121.n.

Concern over potential compliance with this statute was expressed as early as 1962 by both the Illinois Department of Public Health and the Cook County Department of Public Health, as well as by the Water Distribution Division of the Bureau of Water of the City of Chicago. During the period from December 1961 to June 1964, at least six separate inspections were made by State health officials of the Robbins facilities and the results sent to Village officials emphasizing and reemphasizing the progressive state of inadequacy into which the system had fallen. The public health officials repeatedly drew attention to the statute referred to above. One of these reports noted that: “For quite sometime the Village of Midlothian has suffered periodical drought” and that the responsible conditions “may subject the public water supplies of Robbins and Midlothian to contamination.” Particularly applicable here is the following sentence:

The Midlothian public water supply is subject to further possible contamination due to the inability of Robbins to provide a regular satisfactory quantity of water.

Continuing with the language of the decree, the court further found:

16) The Defendant has known at all times since 1962 of its inability to perform because of the repeated requests of the Plaintiff for additional water supply, the acts of the Plaintiff in voluntarily improving the Robbins water system and the reports of the City of Chicago and the State Department of Public Health about its water supply. The Village Of Midlothian has taken all steps reasonably required of a contracting party not only to attempt performance of its contract but also to assist the other contracting party so as to make performance by that party possible.

Defendant alleges that both the Master’s report and the decree improperly interpreted the contract and are therefore erroneous as a matter of law; that the complaint and evidence in support thereof failed to show a justiciable controversy requiring a declaration of the rights of the parties; that if a breach of the contract has occurred, plaintiff has an adequate remedy at law for damages; and that the remedy of equitable rescission based on impossibility of performance was improperly invoked in this case.

We find the Master and Chancellor to have properly interpreted what we consider to be the key clause of the contract requiring Midlothian “to use Robbins’ water exclusively during the period of this contract.” Defendant argues unconvincingly that “exclusively” as used in this clause means “exclusively” up to the limits of “an annual average of 400,000 gallons per day and not to exceed 500,000 gallons in any one day,” and that if Midlothian needed more water, they could go elsewhere to obtain it without breaching the contract. While we agree with defendant that paragraph (9), quoted above, is as much a part of the contract as paragraph (2), we cannot ignore the use of the word “exclusive.” Consolidated Coal Co. v. Peers, 150 Ill 344, 348, 37 NE 937; American Medical Ass’n v. Board of Review of Dept. of Labor, 392 Ill 614, 622, 65 NE2d 350; Black’s Law Dictionary, “Exclusive.” Illinois Cent. R. Co. v. Beebe, 174 Ill 13, 21, 50 NE 1019; Woods v. Great American Ins. Co., 265 Ill App 20, 23, and cases cited therein are not to the contrary. Assuming that Robbins was bound to supply and Midlothian to purchase the actual needs of Midlothian, but not in excess of the limits prescribed in paragraph (9), that arrangement has been of no effect post-1963 since those limits expressly applied only during the first ten years of the contract. The presently applicable language of paragraph (9), “after which time a new annual average and maximum day requirement shall be determined . . .” has not been complied with (through no fault of Midlothian). But that fact does not release Midlothian from the “exclusive” provision in paragraph (2) and its obligation thereunder to buy all of its water from Robbins. Although the parties would be free to negotiate a new contract on terms now contended for by Robbins, and under which Midlothian would draw only part of its supply from the present system, that problem is not within the province of this court (Pioneer Life Ins. Co. v. Alliance Life Ins. Co., 374 Ill 576, 590, 30 NE2d 66) and cannot be permitted to affect our decision. We conclude that the contract was properly voided because of impossibility of performance. Williston on Contracts (rev ed), pp 5410-5411; Restatement, Contracts, § 288; Fisher v. United States Fidelity & Guaranty Co., 313 Ill App 66, 39 NE2d 67. That impossibility is accentuated by the parties’ statutory duty to furnish an adequate water supply to their respective villages. (Ill Rev Stats (1963), c 111%, § 121.g.; 17 Am Jur2d, “Contracts,” § 210; Ideal Bldg. Material Co. v. Benson Concrete Co., 273 Ill App 519, 525; City of Vernon v. City of Los Angeles, 45 Cal2d 710, 290 P2d 841.)

We do not agree with defendant’s second contention that the complaint and proofs in support thereof fail to show a justiciable controversy. Although the factual situation in A. S. & W. Club v. Drobnick, 26 Ill2d 521, 524, 187 NE2d 247, is distinguishable from this record, we find the reasoning of the court in Drobnick to be applicable here:

It is clear from these allegations that the parties have taken an adverse position with respect to the meaning of the deed and plaintiff’s duties thereunder. The dispute does not relate to a hypothetical case but is clearly an actual controversy calling for adjudication of present rights.

There is certainly a controversy between the parties to this cause as to whether for another sixteen years the Village of Midlothian is to remain tied exclusively to the insufficient water supply currently being furnished by the Village of Robbins, or whether it may seek an adequate supply elsewhere. We fail to see how, in this situation, Midlothian could be given appropriate relief by recourse to damages at law, particularly when we bear in mind the statutory penalties for failure to meet its obligations to its citizens.

Defendant’s last contention that plaintiff has improvidently utilized equitable rescission is likewise unavailing. The situation presented by this action is not one of “subjective impossibility” as argued by defendant from Gulf, M. & O. R. Co. v. Illinois Cent. R. Co., 128 F Supp 311, affd 225 F2d 816 (5th Cir, 1955), cert den 350 US 932-933; 84 ALR2d 12, 29-30; and Restatement, Contracts, § 455. The case before us presents, rather, an objective impossibility. The water system as constructed and maintained without substantial expansion, represented the contemplation of the parties as they viewed the future at the time of the contract. As must have happened many times in our burgeoning suburbs, it was built upon estimates and projections made in 1953 which have subsequently been shown to be seriously deficient. The evidence clearly establishes that the contract cannot be performed, and the remedy granted was proper.

Nor does this conclusion run counter to general principles of equity. In buying water from Chicago and reselling it to Midlothian, Robbins is not exercising its own governmental function, but is simply engaged in a venture for the making of money. As in the case of any responsible businessman, it is therefore not unreasonable that it be required to produce in quality and quantity sufficient to satisfy the contract needs of its customer. This it has failed to do, despite more than ample warnings of its progressive inability to meet even its current obligations.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.

       Letter to the Village President and Board of Trustees of Robbins, Illinois, from the Director, State of Illinois, Department of Public Health, dated May 24, 1963, reporting the results of an engineering survey made during the early months of 1963 pursuant to an agreement between officials of Robbins and Midlothian.


source: Caselaw Access Project

author: MR. JUSTICE DRUCKER

license: Public Domain

text:
    The People of the State of Illinois, Defendant-in-Error, v. Edwin J. Conrad, Plaintiff-in-Error.
    Gen. No. 51,025.
    First District, Fourth Division.
    March 10, 1967.

      Richard L. Verkler, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Zagel, of counsel), for defendant in error.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

After a jury trial defendant was convicted of murder and was sentenced to the penitentiary for life. Defendant sued out a writ of error in the Supreme Court and the case was transferred to this court.

Contentions on Appeal

1. Defendant was not proven guilty beyond a reasonable doubt in that he was insane, as a matter of law, at the commission of the murder; and

2. Defendant did not receive a fair trial.

Evidence

On January 4, 1960, defendant was a journeyman pipe-fitter, thirty-nine years of age. He resided on South Moody Avenue in Chicago with Margaret Conrad, his wife of approximately three and one-half years, and Mrs. Conrad’s two daughters from a previous marriage: Margaret Nowicki, the decedent, who was fourteen years old, and Elaine Nowicki, age twenty.

According to the evidence adduced by the prosecution, Elaine Nowicki left early in the morning for work. Defendant then drove his wife to work and returned home. The decedent was at home and was supposed to accompany defendant to the union hall where the latter was to seek employment, as he had been laid off from his job two days before. At one-thirty that afternoon Elaine called home and spoke with defendant. She recalled that defendant said that he had gotten a new job and they discussed the possibility that she could now ride to work with him. She also stated that defendant appeared anxious to end the conversation and, in response to her inquiry as to the reason for his haste, defendant replied that he had a great deal of housework. There was also some discussion of a gift that she was going to buy and defendant stated that Margaret was watching television. Margaret Nowicki’s body was found at 6:00 p. m„ that evening by her mother when she returned from work. The body was prone on the living room floor with the hands outstretched, covered with a blanket. It was clothed in a torn white blouse, or pajama top, and a pair of panties which were inside out and backward. A babushka was worn loosely about the neck. The handle of a knife protruded from the area of the fifth rib, the blade having penetrated the heart and left lung in an oblique, upward direction. There were several contusions on the body: on the left side of the face, the front of the neck, the right thigh, right arm and at least one wrist. There was a swollen lip and a bloody discharge in the mouth, and a scratch appeared at the base of the left thumb. The contusions were sustained prior to death, not more than eighteen hours before infliction of the wound.

Defendant testified as to his activities in the house after driving his wife to work. He stated that when he returned home Margaret was still in bed; that he told her to dress so that she could accompany him to the union hall; that she expressed reluctance in leaving the house because a thirty-five year old neighbor was coming over for a “Christmas drink.” Defendant advised her to forget any arrangement with the neighbor and Margaret made an indiscernible response. Defendant then testified that he drank a large amount of beer and wine, but Margaret still was not ready. He took a butcher knife from the kitchen and went to the basement to cut some cardboard to put on top of the Christmas tree box but, finding no cardboard in the basement, he returned to the kitchen. Defendant carried with him a length of clothesline from the basement. Defendant drank additional amounts of liquor, placed the knife on the table and attempted to remove knots from the clothesline. He called to Margaret again but she told him that he would have to come up and drag her out. After advising her that he would, she replied that he wouldn’t dare. Defendant ascended the stairs and entered her bedroom. After he tugged on the corner of the quilt on the bed, she sat up in bed and playfully swung her fist at him. Defendant grabbed her hands and tied them together with the clothesline which he had brought from the basement. He loosened his hold on the line when she complained of being hurt, and Margaret began to tug on it. Defendant then dropped the clothesline, went downstairs to the kitchen and drank more whiskey. He then picked up the butcher knife, went into the living room and began counting Christmas cards hanging in an archway. He became dizzy and his head began to ache. He became aware that something was in back of him and swung around with the knife still in his hand. Defendant admitted that the decedent had on occasion snuck up behind him and tugged on his belt. (In his statement to the Chicago Police defendant admitted that he knew it was Margaret behind him and that he remembered only that the knife was going towards her.)

The next event that he was able to recall was the phone ringing (the call from his other daughter, Elaine). Defendant’s only recollection of the conversation that transpired in that call was that it dealt with whether something was wrong, in that Elaine had perceived a strange quality in his speech. After concluding that telephone conversation defendant, becoming aware of an unusual silence in the house, walked into the living room and found Margaret on the floor. Defendant touched her, discovered blood, determined that Margaret was dead and collapsed in bewilderment in a living room chair. He then went to the bedroom to obtain a blanket with which to cover the body. Subsequently he took some checks from a dresser, cashed them at a bank, packed a suitcase and took a taxi to the railway station. Defendant next was able to recall only that he found himself in a depot in Milwaukee.

Defendant remained in Milwaukee for six days, living under an assumed name in a hotel and drinking alcoholic beverages. He then told his story to a priest who advised him to go to the police, which defendant did. Defendant hailed a police car. The testimony with regard to defendant’s statements to the police officers in Milwaukee are in conflict. Defendant testified that he told Officer Parys (the policeman who was driving the squad car which he hailed) that he was wanted in Chicago for the death of his daughter; that the officer questioned him as to his health and whether he hadn’t been drinking too much; that he was finally placed in the squad car, driven into an alley, and further questioned as to his sobriety; that he asked Officer Parys to take him to someone with authority, and was then taken to the police station in another police vehicle (referred to by defendant as a “wagon”) called by the policeman.

Officer Bernard Parys testified that defendant told him “I killed my stepdaughter.” He further stated that defendant was immediately placed in the squad car, taken to a side street and then was conveyed in another vehicle to the police station. The next day defendant was taken into custody by the Chicago Police, who returned him to Chicago. Defendant’s statement to them was rendered the following day.

With regard to defendant’s relationship with his stepdaughters, Mrs. Conrad testified that:

At night when they used to go up to bed they used to kiss him good night and he used to say, “now, kiss me the way you are supposed to.” He didn’t want to kiss them like a dad. He wanted them to really kiss him.
A lot of times Margie [the deceased] would go to kiss him and back away and he would grab her and he would say, “Kiss me. Let me show you how.” And he did the same with Elaine and Elaine said, “If you don’t want me to kiss you, Dad, I won’t kiss you at all,” and she went upstairs.

Mrs. Conrad’s testimony was corroborated by her daughter, Elaine.

On January 5 a postmortem examination was performed by two coroner’s pathologists, one of whom was Dr. Leo Pevsner. He testified that in addition to the various other injuries to the body of the deceased as aforesaid, on the inside of the right thigh there was a contusion encompassing a circular area slightly less than one inch in diameter; the hymen was not intact and there was evidence that it had been perforated quite recently. Sperm was found in the vagina which, according to the witness’ opinion, had been deposited within the last 48 to 72 hours.

Opinion

(1) Defendant contends that the trial court erred in failing to direct a verdict in his behalf since he was insane when the crime was committed, in that he suffered a blackout prior to the murder and regained his senses subsequent thereto when Elaine Nowicki phoned.

The law presumes all men to be sane. People v. Kenzik, 22 Ill2d 567, 177 NE2d 162. The effect of that presumption is to require a defendant whose defense is insanity to introduce evidence tending to prove insanity. Only when that is done does the burden devolve upon the prosecution to prove beyond a reasonable doubt that at the time of committing the act the accused had sufficient mental capacity to distinguish between right and wrong and that he was capable of exercising the power to choose between right and wrong. People v. Munroe, 15 Ill2d 91, 154 NE2d 225. According to defendant’s evidence: he had been afflicted with severe headaches since suffering a head injury in 1957; he had also experienced a sudden temporary paralysis; in 1959 he suffered from a painful nerve condition in his neck which required hospitalization and extensive medical treatment. In addition, defendant stated that about two or three years prior to the incident he exhibited peculiar behavior; one winter evening, around midnight, he was discovered walking barefoot down a snow-covered alley, clad only in pajamas; and that other times he had done unusual things followed by a total lack of recall as to what had taken place. This was contradicted by the testimony of defendant’s wife, who testified that after defendant had gone outside in his pajamas he returned to bed and stated that “it was awfully cold outside, and he knew where he was.” Defendant’s wife also related an incident which happened when defendant “had a few drinks” and stated that she knew of no other unusual incidents. According to the testimony of Mrs. Conrad, defendant drank often, could not hold his liquor but always knew what he was doing.

Defendant also adduced the testimony of Dr. William Haines, the court’s psychiatric examiner who made a pretrial examination of defendant five months after the murder. He testified in response to a hypothetical question embodying defendant’s version of the pertinent evidence and stated that in his opinion the actor in the hypothetical question at the time of the murder was unable to distinguish between right and wrong or to choose whether or not to do an act. However, Dr. Haines admitted on cross-examination that the hypothetical actor became unable to choose between right and wrong only at the time he blacked out. Therefore, if the jury did not believe defendant’s testimony as to the blackout, then Dr. Haines’ answer to the hypothetical question would be of no significance in establishing insanity. Because of significant conflicts in the evidence, the jury could have disbelieved defendant’s testimony as to the blackouts. While defendant testified that on various occasions he exhibited unusual behavior three years prior to the incident in question and didn’t know what he was doing, his wife stated that defendant indicated to her that he always knew what he was doing. While defendant also testified that a moment after he felt someone pull or touch his back he remembered nothing until the telephone rang a few hours later, according to his own statement to the Chicago Police he blacked out after he swung around at Margaret and the knife was going towards her. As stated by the court in People v. Davis, 73 Ill App2d 386, 220 NE2d 75, where the defendant claimed to have no recollection of events which had occurred in several periods of his life (including such a period which included the date of the incident for which he was on trial), “his testimony as to ‘amnesia’ is open to serious question.”

We find that the question of defendant’s sanity at the time of the murder was properly submitted to the jury for its determination.

(2) Defendant also contends that he did not receive a fair trial, and in support thereof asserts that: (a) prejudicial photographs were erroneously admitted into evidence; (b) testimony as to the finding of sperm in the vagina of the deceased was improperly allowed; (c) the prosecution was allowed to improperly cross-examine defense witnesses; (d) improper restraints were placed upon defendant in his cross-examination of various witnesses for the prosecution; (e) the closing argument of the prosecutor was improper and prejudicial; (f) the court improperly sustained objections to the closing argument of defendant; (g) the jury was improperly instructed; and (h) the trial judge was prejudiced against and hostile to defendant.

(a) The photos in question were of the body of the deceased from various angles and were introduced over the objections of defendant. These photos showing the disheveled appearance and bruised condition of the decedent were of substantial probative value in that if the jury disbelieved defendant’s testimony as to the blackouts it could have concluded that defendant stabbed the decedent while assaulting her. Moreover, the photos corroborated the testimony of the prosecution witnesses as to the extent of the bruises on decedent’s body. In People v. Jenko, 410 Ill 478, 102 NE2d 783, a murder case, the court held that photographs of the decedent were properly admitted and stated at page 482 that:

The fact and cause of death, the number and location of the wounds, the manner in which they were inflicted, and the wilfulness of the acts in question are all material to the offense charged. . . . Evidence having a natural tendency to establish the facts in controversy should be admitted. A party cannot have competent evidence excluded merely because it might arouse feelings of horror and indignation in the jury.

In People v. Hoffman, 32 Ill2d 96, 203 NE2d 873, the court held that the trial judge did not abuse his discretion in allowing photographs of a similar nature as those of the instant case to be introduced into evidence, stating at page 100:

The photographs show the deceased from three different angles as she was found nude on the bed. Two of the pictures were taken from the left side of the body and show it exposed from the hips to the head. The third picture was taken from the feet, which were spread apart wide and show the body exposed from the calves to the breasts.
We are of the opinion that neither the admission nor exclusion of these photographs could, as a matter of law, be held to be an abuse of discretion. The pictures depict a brutal and intentional crime by a sadist and are bound to arouse feelings of horror and disgust in a normal person. We feel, however, that the description of the nature and extent of the wounds and burns inflicted upon the deceased could easily portray a much more gruesome image than that revealed by the photographs.

We find that the trial judge in the instant case did not abuse his discretion in allowing the photographs to be introduced into evidence.

(b) Testimony as to the finding of sperm in the vagina of the deceased was properly allowed. The test of admissibility of evidence is the connection of the facts proved with the crime charged, and whatever testimony tends directly to show the defendant guilty of the crime charged is competent although it tends to show him guilty of another offense. The party cannot by multiplying his crimes diminish the volume of competent testimony against him. People v. Cione, 293 Ill 321, 127 NE 646. The court in State v. Johnson, 37 NM 280, 21 P2d 813, held that testimony as to the extent of bruises on the decedent’s body was properly admitted in a murder trial, stating at page 815 that:

The objection is clearly untenable. The criminal assault was a concomitant part of the transaction which resulted in the slaying of deceased, and was admissible under one of the well-recognized exceptions to the general rule excluding proof of other independent crimes, both as tending to show motive for the homicide, and also as a part of the res gestae of the crime charged. . . .

The body of Margaret Nowicki bore extensive bruises, her clothing was tom and, in addition, her panties were inside out and backward. Even defendant would not have us believe that the decedent had dressed herself in this manner. From the evidence adduced by the prosecution the jury could have concluded that defendant had sexual intercourse with the deceased, and that the sexual intercourse was a motive for, or was part of the res gestae of, the homicide charged in the indictment.

(c) Defendant asserts that defense witnesses were improperly cross-examined. In his brief defendant argues that he was asked on cross-examination to describe what happened on various occasions when be blacked out; defendant stated that he did not know; and the court compelled him to answer and to describe events of which he had no personal knowledge; and that at no prior time in his testimony did defendant mention that he had ever exhibited “anomalous or uncontrollable behavior.” According to the record, however, defendant testified that: “I sometimes found that I had trouble controlling myself if I took too much alcoholic beverages. ... I would say that I was unable to control myself after taking too much alcohol on perhaps four or five occasions in four years.” There is no reference to a blackout in any question by the prosecution. The prosecution merely sought to ascertain what defendant did when, with knowledge, he could not control his actions. In his answer defendant gave an articulate reply apparently based upon personal knowledge since there is no reference to what someone else told him he did. Therefore, the cross-examination of defendant was not improper.

Nor did the prosecution improperly cross-examine Dr. Haines. Upon an examination of the record we find that the purpose of the cross-examination in question was either to explain, modify or discredit the testimony of the witness and was therefore proper. People v. Del Prete, 364 Ill 376, 4 NE2d 484.

(d) Defendant next contends that improper restraints were placed upon his cross-examination of various witnesses for the prosecution.

One of the witnesses, Officer Parys, testified that when defendant first approached him he stated that he had killed his stepdaughter. Officer Parys admitted that prior to trial, to refresh his recollection, he referred to a notebook in which he had contemporaneously written defendant’s statement to him, but the trial judge refused defendant’s request to produce the notebook in court. However, on cross-examination the witness read aloud to the jury from Defendant’s Exhibit 2 for identification, which was a report prepared by Officer Parys for his commanding officer, as follows:

On Sunday, January 10, 1960, subject [defendant] stopped us on North Third and West Wisconsin Avenue and said he was wanted — he wanted to give himself up, that he was wanted for the murder of his stepdaughter, Margaret Nowicki.

The report contained no reference that defendant actually admitted to killing his stepdaughter. Officer Parys contended that there was no discrepancy between the report and his testimony; that defendant did admit to killing her; and that the defense attorney had misinterpreted the aforesaid words of the report. In light of the fact that the jury had an opportunity to consider whether or not the aforesaid report contradicted the testimony of Officer Parys with regard to defendant’s oral confession, we find that no prejudicial error was committed by the trial judge in refusing to order the notebook to be produced in court. We also find defendant’s contention with regard to the cross-examination of other witnesses to be without merit.

(e) In support of his contention that the prosecution’s closing argument was prejudicial, defendant alludes primarily to the prosecutor’s query: “What does he justly deserve for raping her?” An objection was sustained and the jury was immediately instructed to disregard the remark. At the time of the murder Margaret Nowicki was only fourteen years old and sperm had been found in her. Under the law in force at that time Margaret Nowicki would have been raped if a male had carnal knowledge of her, with or without her consent (El Rev Stats 1959, c 38, § 490). According to the State’s evidence the decedent had been severely beaten and sperm was found in her vagina. Evidence was also adduced to the effect that her body was found clad only in a torn white blouse or pajama top and a pair of panties which were inside out and backward; defendant had been in her bedroom while the decedent was still in bed, tussling with her and applying a rope to her wrists allegedly to pull her out of bed; on various occasions defendant wanted his stepdaughters to “really kiss him” and not to kiss him like one kisses a father. (According to defendant’s testimony, “Margie was a good girl. She did not date very often.”) Statements of counsel and argument based upon proven facts and circumstances, or upon legitimate inference therefrom, do not exceed the bounds of proper debate and are not to be discountenanced by the courts. People v. Miller, 13 Ill2d 84, 148 NE2d 455. In view of the admonition of the trial judge and under all of the circumstances of this case, we do not believe that this remark was sufficient to prejudice the jury.

Defendant attempts to raise on appeal for the first time the alleged prejudicial nature of other statements made by the prosecutor. However, since no objection was made at trial the issue is waived. People v. Winters, 29 Ill2d 74, 80, 193 NE2d 809; People v. Switalski, 394 Ill 530, 69 NE2d 315.

After considering all of defendant’s properly raised assertions of impropriety, we find no merit in his contention that the prosecutor’s closing argument was prejudicial.

(f) Defendant argues that the court improperly prevented him from calling to the jury’s attention the deficiency in the evidence offered by the State to meet his affirmative defense of insanity; and that the natural consequence was to imply to the jury that it was the court’s opinion that the evidence of insanity had been sufficiently rebutted. The pertinent statement of defense counsel was:

. . . Dr. Haines told you that based upon the question that we asked, it was his opinion that the hypothetical person, and I don’t think you have to be a mindreader to know who the hypothetical person is, the hypothetical person did not understand at that time the difference between right and wrong and he had no power of selection.
Of course, if the facts in the question are not true, then the doctor’s opinion isn’t true. That is obvious and no one is going to fool you. But have you heard any evidence to the contrary? You have heard fairy tales. You have heard fiction. You have heard some of his dreams but you haven’t heard any evidence to the contrary.

An objection was sustained as to that portion of the argument relating to “fairy tales,” “fiction,” and “dreams.” The jury was subsequently instructed to make no inference from any of the court’s rulings. We find no merit in the argument that defendant was prejudiced by the sustention of the prosecutor’s objection.

Defendant also claims that in his argument he was not allowed to question the probative value of the photographs of the decedent lying on the floor. That portion of the closing argument in question is as follows:

Now, let’s forget for a moment the evidence as to having anything to do with the death and let’s see what evidence they have of a sexual assault because what they are trying to do to you, and I will say that I haven’t tried that many cases, but I have never seen such bloody and gory pictures offered by the State to a jury, because what do they tend to prove.

An objection to the aforesaid was sustained. The court merely precluded defense counsel from offering personal testimony and questioning the admission of the photographs. The trial judge did not preclude counsel from questioning the probative value of the photographs had he proceeded in the proper manner and therefore no error was committed.

(g) As to instructions, defendant first complains of Instructions Nos. 5 and 6, submitted by the prosecution. Each of these concerned the definition of malice under the old statutory definition of murder as a killing with malice aforethought. Instruction No. 6 was a recitation of the statutory provision (111 Rev Stats 1959, c 38, § 358), and included the language that “malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.” Defendant argues that this instruction conveyed the erroneous implication that all instances in which one person takes the life of another without prior provocation involve malice aforethought within the contemplation of the statute. Defendant argues that instruction No. 5 was defective in the same manner. It provides:

The Court instructs the jury, as a matter of law, that the words “malice aforethought” do not necessarily imply the lapse of considerable time between the malicious intent to take life and the actual execution of that intent; whether the design to effect death was formed on the instant or had been previously entertained is immaterial, for the malicious killing, if proven by the evidence beyond a reasonable doubt, in either case is murder under the law of this State.

In support of his argument defendant relies upon People v. Penman, 271 Ill 82, 110 NE 894, and People v. Jarvis, 306 Ill 611, 138 NE 102. However, in each of those cases the instruction was condemned because it wholly ignored the defendant’s plea of self defense. In the instant case no defense of the defendant is ignored in giving those instructions and therefore we find that no error was committed.

Defendant also urges that under the circumstances the court erred in refusing to substitute Defendant’s Instruction 17 in place of People’s Instructions 5 and 6. It provides:

The jury are instructed that "malice aforethought” is an essential element of the crime of murder and the prosecution must prove beyond all reasonable doubt such malice aforethought. While malice may be presumed where one person deliberately injures another, it is the deliberation with which the act is performed which gives it character. Malice is the opposite of an act performed under uncontrollable passion, which prevents all deliberation or cool reflection in forming a purpose, and if you believe from a consideration of all of the facts and circumstances in evidence in this case that the prosecution has failed to prove beyond all reasonable doubt that the defendant acted with malice aforethought you must find the defendant not guilty of murder.

The elements of that instruction were criticized by the court in People v. Spranger, 314 111 602, 613, 145 NE 706, and therefore we find no error in the court’s ruling. No other instruction as to the definition of malice was tendered by defendant.

Defendant next argues that People’s Instruction No. 3 imposed upon the jury the duty to find him guilty in the absence of reasonable doubt of his innocence. The instruction provides in relevant part that:

If you are convinced from the evidence in the case beyond all reasonable doubt that the defendant is guilty as charged in the indictment, it is your duty to find such defendant guilty. If you are not convinced from the evidence beyond all reasonable doubt of the guilt of the defendant, it is your duty to find such defendant not guilty.

The instruction does not require the jury to find defendant guilty in the absence of a reasonable doubt of his innocence, and was therefore proper.

Defendant alludes to various other purported errors in the instructions given, and refused to be given, to the jury. After a thorough examination of his arguments we find that no prejudicial error was committed.

(h) With regard to defendant’s final point, we find that the trial judge was neither prejudiced against nor hostile to defendant.

Holding on Appeal

Counsel for defendant has meticulously scrutinized the record and, after retrospectively evaluating the innumerable rulings of the court and the lengthy arguments of the prosecution, urges in this appeal many errors. These comprise generally, among others, of restricted cross-examination, prejudicial comments and the role of the judge. The purpose of review in a criminal case is not to decide whether the record is perfect, but to determine whether the defendant had a fair trial free from substantial and prejudicial errors, and whether his conviction is based upon evidence establishing his guilt beyond a reasonable doubt. People v. Caldwell, 79 Ill App2d 273, 224 NE2d 634. After a careful consideration of all the circumstances of the instant case, we are not convinced that defendant was prejudiced by any action of the judge or prosecutor. The jury returned a just verdict; indeed it was the only reasonable conclusion to reach upon the basis of the evidence adduced. We find that defendant received a fair trial; that the verdict is supported by the evidence and no prejudicial error intervened to require a new trial. The judgment of the trial court is affirmed.

Affirmed.

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

       In its transfer order the Supreme Court stated that:
      The defendant claims that his confession [a statement to the Chicago police] was improperly admitted in evidence. This argument is founded upon the contention that the confession was obtained after prolonged questioning at a time when the defendant was without counsel and also upon the claim that the defendant was denied his right to a prompt preliminary hearing. There is no showing that the defendant had ever requested counsel and the defendant did not object to the admission of the confession in the trial court on the ground that it was involuntary. We find no substantial constitutional question presented by this argument.
      Therefore, we will not consider defendant’s contention that his constitutional rights were violated nor will we consider his argument that the confession was involuntary.

       The decedent’s mother had great difficulty in entering the house and a neighbor had to be summoned to break the glass in the storm door.


author: PRESIDING JUSTICE STOUDER.

text:
    Mary Berry, Plaintiff-Appellee, v. Vivian Lewis, Defendant-Appellant.
    Gen. No. 66-45.
    Third District.
    March 14, 1967.

      John David Zwanzig, of Ottawa, and Orner & Wasserman, of Chicago, for appellant; Peter F. Ferracuti, of Ottawa, for appellee.
   Opinion by

PRESIDING JUSTICE STOUDER.

Not to be published in full.


author: MR. PRESIDING JUSTICE LYONS

text:
    Bernard H. Sokol, Plaintiff-Appellee, v. Bernard Mortimer, Defendant-Appellant.
    Gen. No. M-51,045.
    First District, Second Division.
    March 14, 1967.

      Harry G. Fins, of Chicago, for appellant.
    George C. Rabens, of Chicago, for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment entered on a jury-verdict in favor of the plaintiff, Bernard H. Sokol and against the defendant, Bernard Mortimer, for $5,000, for an attorney’s fee.

Plaintiff, Bernard H. Sokol, is an attorney at law-licensed to practice in Illinois and the United States District Court and had specialized in the defense of federal tax litigation for approximately seventeen years. Defendant, Bernard Mortimer, was a medical doctor specializing in gynecology.

In April of 1963, the plaintiff was called to defend a case involving an alleged failure by the defendant to report certain income on his federal tax returns over a period of years. Pursuant to conversations had between the two parties, the plaintiff’s specific attention was directed by defendant to an alleged irregular practice by certain nurses in his employ, during the period in question. The alleged irregularity concerned the nurses’ failure to post receipt of patients’ fee payments on the patients’ respective records maintained in the doctor’s office. As a consequence, plaintiff contends he focused his investigation and defense of the defendant on a thorough audit of these records and the corresponding bank deposits relating to them. The fulcrum of the investigation was to account for certain unreported income of the defendant, and attribute such to the misconduct of the nurses.

Prior to October of 1963, plaintiff was employed by defendant in this case with a retainer of $1,500, pursuant to an oral agreement between them. In October of 1963, plaintiff proposed to defendant that they enter into a written agreement for the payment of attorney’s fees in the sum of $10,000, half of which, ($5,000), was to be a bonus, contingent upon the defendant’s discharge or acquittal, and pursuant to which plaintiff agreed to undertake the investigation. This agreed upon sum included the previous $1,500 retainer. The proposal was submitted to defendant in the form of a written letter of advice dated October 10, 1963, and was signed by both parties. Thereafter, plaintiff continued his investigation and preparation of the case.

In December of 1963, defendant was indicted for income tax evasion. Plaintiff continued to pursue the procurement of information and affidavits relating to the nurses’ posting procedures. In March of 1964, two weeks before the defendant’s trial, plaintiff was notified by the federal prosecutor that his office had procured 158 money orders of defendant’s totaling some $152,000, which had been purchased by the doctor with over a thousand of his patients’ checks, none of which had been deposited in his bank account so as to evidence income. Plaintiff contends that this revelation necessitated an entirely new theory of investigation for the proper preparation of the defendant’s defense, the substance of the investigation having theretofore been devoted to the misconduct of the nurses and not that of his client.

Subsequently, the two parties conferred in regard to this new development. Plaintiff sharply criticized his client for having concealed such vital information from him, maintaining that the importance of his prior investigative efforts of several months had thus been minimized or wasted. The doctor denied having wilfully concealed the information, asserting that he had every right to assume that the checks in question had been properly posted before negotiating them for the money orders. John F. Kelly, who had assisted plaintiff in his preparation of the case, testifying for plaintiff, stated that he was of the opinion at that time the money orders were not material to the government’s proof of the doctor’s income.

The resulting commencement of an entire new series of investigations caused plaintiff to submit, in a writing dated March 17, 1964, six days before the trial, that the contingent portion of their prior fee agreement should be voided, and that the attorney’s fees totaling $10,000 be paid to him regardless of the final determination of the tax evasion trial. This alteration in the fee agreement was agreed to by defendant, in writing. Whether defendant agreed to the change without protest is a fact in much dispute.

Defendant was tried for income tax evasion and convicted. An unsuccessful appeal was taken by counsel other than plaintiff. United States v. Mortimer, 343 F2d 500, 65-1 USTC If 9301 (1965). After repeated demands, defendant refused to pay plaintiff the $5,000 balance of his fee. The plaintiff instituted this action and judgment was entered on a verdict in favor of plaintiff for $5,000. Defendant filed motions for a judgment notwithstanding the verdict and for a new trial, both of which were denied and from which defendant appeals.

It is defendant’s theory: (1) that such attorney-client fee agreements are presumptively fraudulent, thereby making it incumbent upon the attorney to sustain the burden of proof as to the agreement’s validity, (2) that the trial court erroneously instructed the jury as to such burden of proof, (3) that the trial court erred in refusing the defendant’s instructions relating to a presumption of the honesty and the credibility of defendant, (4) that the trial court prejudiced defendant’s case by insulting his wife while she testified, (5) that the court below erred in admitting, over objection, certain confidential communications between the attorney and his client, (6) that plaintiff, having violated Canon 37 of the Canons of Professional Ethics, is not entitled to compensation, (7) that the judgment is not supported by the allegations and proofs, and (8) that the verdict is contrary to the manifest weight of the evidence.

Plaintiff responds: (1) that attorney-client fee agreements are not presumptively fraudulent, and thus the jury instruction on burden of proof was proper, (2) that the rule prohibiting testimony as to confidential communications is inapplicable to the facts of this case, (3) that the court did not err in refusing defendant’s tendered instructions on honesty and credibility, (4) that no prejudice was created by the court in reprimanding defendant’s wife while on the stand, and (5) that the verdict and judgment are consistent with and supported by the allegations and evidence.

Defendant maintains that attorney-client fee arrangements, due to the fiduciary capacity in which the attorney negotiates, are presumptively fraudulent, making it thereby incumbent upon such attorney to sustain the burden of proof as to his utmost good faith and freedom from the exercise of undue influence during such negotiations. He further alleges that it was thus error for the court below, by way of instructions to the jury, to cast the burden of proof as to matters of consideration, undue influence and the like, upon him. In this conjunction, defendant relies principally upon the cases of Elmore v. Johnson, 143 Ill 513, 32 NE 413 (1892); Miller v. Lloyd, 181 Ill App 230 (1913); Woods v. First Nat. Bank of Chicago, 314 Ill App 340, 41 NE2d 235 (1942); Jordan v. Ray Schools-Chicago, Inc., 49 Ill App2d 1, 199 NE2d 827 (1964) and Awotin v. Abrams, 321 Ill App 304, 52 NE2d 827 (1944).

This court takes full cognizance of the holdings and reasoning of these cases, but after careful examination, can find no underlying rule which establishes that attorney-client fee agreements create a presumption of fraud per se. No such rule obtains from this line of cases because: (1) such a rule would necessarily exculpate a client from dealing in an open and above board fashion with his attorney and impose upon such attorney an unwarranted and inequitable burden, and (2) the cases relied upon for imposition of such a rule are readily distinguishable from the facts of the instant case.

As the court in Comerford v. Loewenbein, 227 Ill App 321 (1923) said:

The general rule above referred to has usually been applied in connection with proceedings in equity brought by a client, involving some transaction between him and his attorney, having to do with the client’s property or property rights or some interest in the subject matter of the litigation in connection with which the attorney was retained.
The case of Elmore v. Johnson, 143 Ill 513, 32 NE 413, is that sort of a case. . . .

The Miller case is equally not in point. There the court held that a subsequent agreement secured by the attorney increasing his compensation from that which had been theretofore agreed upon was invalid and unenforceable. The court, however, was very clear in pointing out that the attempted change occurred after practically all the work had been performed pursuant to the prior agreement. Such a situation does not appear in the instant case.

The Woods case is inappropriate because there the action for fees was based purely upon an account stated. The Awotin case, where the attorney sought additional fees due to unforeseen difficulties, is equally unpersuasive for there the court specifically ruled that the attorney had contemplated to see the case through irrespective of subsequent developments. Again, such are not the facts as presented before this court. Moreover, not one of the aforementioned cases relied upon by the defendant involve a situation in which the propriety of the conduct of the client, as well as that of the attorney, is at issue and is treated in relation to its effect upon the presumptive fraud theory of the case.

This is not to say, of course, that this court ignores the existence of the fiduciary relationship between the parties and seeks to exonerate the attorney of a duty of professional responsibility and good faith toward his client. Rather, the fairness of the conduct of the attorney in negotiating for his fee, coupled with the circumstances surrounding the amending of the agreement itself, are clearly questions of fact and not law in each specific case. It cannot be said that a presumption of invalidity permeates the negotiation of every attorney-client fee arrangement.

This basic tenet was clearly recognized by this State’s highest court in Rolfe v. Rich, 149 Ill 436, 35 NE 352 (1893), where the court said:

While the law is, that dealings between attorney and client, resulting in advantage to the former, will be closely scrutinized, and the attorney be required to show the most good faith and fairness, and that the client dealt with full knowledge of his rights, it does not prohibit all dealings between them, or declare all contracts made by the attorney with the client ipso facto void, or voidable at the instance of the client.

Similarly, in Morrison v. Smith, 130 Ill 304, 23 NE 241 (1889), the court reasoned:

. . . , and though transactions between them (attorney and client) will be closely scrutinized, yet those which are obviously fair and just will be upheld. (Insert supplied.)

It necessarily follows that the court did not err in refusing defendant’s tendered instructions on burden of proof. We do not think that any greater duty devolves upon an attorney seeking collection of his fees once he has established, by going forward with the evidence, 'the fairness and reasonableness of that fee under the attendant circumstances. The burden of proof to establish fraud, undue influence, or lack of consideration, not unlike any other affirmative defense, must necessarily rest upon the party asserting it. Ward v. Yancey, 78 Ill App 368 (1898), Comerford v. Loewenbein, 227 Ill App 321 (1923). The liability to pay for legal services stands upon the same footing as other agreements. Klein v. Chicago Title & Trust Co., 295 Ill App 208, 14 NE2d 852 (1938). In actions by attorneys to recover compensation for professional services performed under an alleged contract, the usual rules as to defenses in actions ex contractu apply. Caplow v. Hershon, 331 Ill App 267, 72 NE2d 868 (1947).

Defendant also contends that he was a victim of what his counsel terms “automatic duress,” in that he had no choice but to submit to the plaintiff’s demands. We believe this to be without merit, for nothing appears of record, which could have precluded him from discharging his counsel and instituting a breach of contract action against plaintiff.

The propriety of defendant’s own conduct was unquestionably at issue, raising a proper question of fact for the jury to weigh. It is not the province of this court to substitute its judgment for that of a jury in absence of patent error wherein the weight of the evidence demands a contrary conclusion. Niman v. Pecatonica Livestock Exchange Inc., 13 Ill App2d 144, 141 NE2d 327 (1957). Viewed from this proper perspective, it cannot be said that the jury was manifestly in error in agreeing that defendant had not sustained his burden of proof.

The tendered instructions of defendant relative to the presumption of honesty and the credibility of the defendant were properly refused. Both instructions singled out defendant, casting upon him favorable inferences by omitting similar reference to plaintiff, and as such, if accepted, would have been prejudicial to plaintiff.

While a prior conviction for federal income tax evasion cannot be said to be a conviction of an infamous crime within the meaning of our rules of evidence, this court is of the opinion that no error was committed by the lower court in allowing plaintiff to make mention of such conviction in his closing argument. The statement was in response to defendant’s argument that the $152,000 in money orders was not material to the government’s proof of defendant’s income. The reference, when examined in context, indicates that it would not tend to impeach or discredit defendant as he so maintains. This is substantiated by the fact that plaintiff made no attempt to introduce the record of the prior conviction into evidence.

Defendant further contends that the court erred in permitting plaintiff, an attorney, to testify to certain privileged and confidential communications between himself and defendant, his former client. This contention is equally without merit, for an exception to the general rule, which prohibits disclosure by the attorney of confidential communications of his client, is recognized, where such a disclosure becomes necessary for the protection and preservation of the attorney’s own rights inter se. Horowitz v. LeLacheure, 81 RI 235, 101 A2d 483 (1953). This exception has commonplace application in Illinois to cases involving actions for attorney’s fees based upon a quantum meruit, as a matter of fairness. It has been equally applied to offers of testimony of an attorney relating to the construction of provisions of the contract he had negotiated with his client. Funk v. Mohr, 185 Ill 395, 57 NE2d (1900).

To reach a contrary conclusion would be to permit an attorney to be charged with conduct fatal to his cause of action, yet render him incompetent to answer in response to the attack upon his professional integrity. Moreover, all the matters involving the testimony of plaintiff which made reference to the nurses’ posting procedures and the money orders had already been made a matter of public record as a result of defendant’s tax evasion trial, thereby removing the shroud of secrecy placed over it. For this court to bar such testimony of the attorney as violative of a confidence reposed in him by his client, as to these matters, would be useless and meaningless.

Plaintiff has not violated Canon 37 of the Canons of Professional Ethics as defendant maintains.

The court’s comment to defendant’s wife while on the witness stand in his behalf, “. . . eradicate that smirk from your face, madam,” was not sufficient, in and of itself, to sustain a charge of prejudice warranting reversal. The record reveals that the witness’ conduct clearly evidences a contumacious attitude. Rejecting the authority of the court, she displayed a manifest absence of respect for the judicial proceeding to the extent that the witness was even admonished by defendant’s counsel, who called her to the stand. Having acted with proper justification, yet without expressing a judicial opinion as to her credibility or the weight to be afforded her testimony, the court clearly acted within the realm of sound discretion and the powers available to it. Reeds v. Sands, 11 Ill App2d 355, 137 NE2d 553 (1956); Schaffner v. The C. F. Massey Co., 270 Ill 207, 110 NE 381 (1915). Cf. People v. DeStefano, 64 Ill App2d 368, 212 NE2d 368 (1965).

A review of the record of the proceedings below clearly indicates that the verdict is supported by and is consistent with the pleadings and the proofs. The verdict and judgment thereon are not contrary to the manifest weight of the evidence and hence will not be disturbed.

For the above reasons, the judgment is affirmed.

Judgment affirmed.

BURKE and BRYANT, JJ., concur.


author: MR. PRESIDING JUSTICE ENGLISH

text:
    Charles Jenkins, Plaintiff, Respondent-Appellee, v. Jean D. Jenkins, Defendant, Petitioner-Appellant.
    Gen. No. 50,307.
    First District, Fourth Division.
    March 15, 1967.

      David Linn, B. John Mix, Jr., and Abrams, Linn and Mix, of Chicago, for appellant.
    George B. Collins, of Chicago, and Harry B. Bainbridge, of Chicago Heights, for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Petitioner appeals from denial of her petition to modify a divorce decree so as to grant her the custody of her son.

Petitioner and Respondent were married in 1953, and were separated in January 1963 after a series of violent family quarrels, following one of which Respondent required several stitches in his head. At the time of the separation, the daughter (age three) went with Petitioner to live in her maternal grandmother’s home, and the son (age eight) remained with his father, who rented another abode and leased the family house to third persons. On April 19, 1963, Petitioner received from Respondent’s attorney a proposed stipulation in connection with contemplated divorce proceedings, under the terms of which the mother would retain custody of the little girl and the boy would live with the father. On June 21, 1963, the Respondent filed his complaint seeking divorce on the ground of cruelty. An appearance, answer, and the stipulation referred to above were filed on behalf of the Petitioner. The case was heard as a default matter on June 22, 1963, and a decree of divorce was entered July 11, 1963, awarding custody of the daughter to her mother, and custody of the son to his father.

At the hearing on Petitioner’s request for modification of this custody arrangement, she testified that at the time of the divorce she and Respondent had entered into an oral agreement that she would have custody of both children, notwithstanding the decree, once she got settled and was able to support and care for them. Respondent denies the existence of such an agreement. Petitioner also testified that she asked Respondent but was refused permission to live with both their children in the jointly-owned house.

In November 1963, Petitioner had left the daughter with her grandmother in Chicago and gone to Arizona to work at a resort. While there, she met her present husband, Mr. Golston, to whom she was married in January 1964. Shortly after their marriage, she took her daughter to live with them in Mr. Golston’s large, modern home in Casa Grande, Arizona.

During the Christmastime immediately prior to her marriage to Mr. Golston, Petitioner had returned to Chicago for a week. She visited her son and allegedly discussed a change in his custody with Respondent. She next saw the boy when he went to spend his vacation, during the summer of 1964, with Petitioner and her second husband. It is not contested that Mr. Golston is financially more secure than Respondent, but it is admitted by both parties that economic affluence will not of itself justify modification of the custody provisions in the decree.

This petition was filed on October 24, 1964, and Petitioner alleged in the trial court, as she does here, that: (1) the primary concern of a court in custody cases must be the welfare of the child; (2) in cases involving children of tender age, where both parents are fit, custody of the child should be granted to the mother; (3) the court has power to modify custody provisions of a divorce decree notwithstanding the fact that it had incorporated the custody arrangement set forth in a written agreement between the parties; and (4) in determining who should have custody, it is of considerable importance that children of the same parents should live together as members of one family.

Respondent contends that: (1) a change in custody is justified only after a change in circumstances of the child and there is no such change in this case; (2) the decision of the trial court as to what is best for the child should stand, since he saw and heard the witnesses at trial; (3) the rule favoring the mother in questions of custody does not apply when the mother has voluntarily given up a child; (4) the separation of brother and sister was brought about by the Petitioner and there is no rule of law requiring that the children live together, particularly where the boy has adjusted to the conditions of separation.

The trial court agreed generally with Petitioner’s first two contentions and also with the argument that the decree is not permanently binding and may be modified under proper circumstances. As to petitioner’s fourth argument, the court pointed out that “the ideal situation” would be for the children to live together and with both of their parents, but when this is impossible the court must seek a satisfactory alternative, and in so doing “the Court cannot accept the blanket solution that in all cases ... it is best for a brother and sister to always be together but must be modified by circumstances in each case.” The court emphasized that it felt both parties were fit parents, then held:

Now, as to the boy, the Court has to consider the fact that he has lived with the father for the last almost year and a half; that he seems to be getting along well; is being kept in a proper manner and that he has some roots which have grown with his living with his father in respect to schoolhood playmates, to the educational system, to acquaintanceships, his familiarity with his surroundings; and the Court feels that to take the chap from that situation at this time would be unwise and would result in too much trauma to the child.
I do not think that there has been a sufficient showing of a change of circumstances or a need for a return to the mother to justify saying that the welfare of the child requires this change. In fact, I think the opposite at this time would be true.

We affirm the decision of the trial court. Because of his first-hand opportunity to observe and hear the witnesses and parties, the trial court is ordinarily in a position superior to that of this court for reaching the most equitable solution in this kind of case. We would not hesitate to disturb a lower-court finding if we were convinced that an injustice was being committed in light of the evidence, or if we found the trial court had incorrectly applied principles of law, but we find neither circumstance in this case. It must be emphasized that custody cases present among the most vexing and difficult situations facing a trial judge in the discharge of his duties. Generally, no decision a court makes in such cases can be considered either “right” or “wrong.” The responsibility of a judge is, instead, to exercise his own best judgment in attempting to find the most satisfactory solution under all the circumstances in each case. The conscientious chancellor in the instant case recognized his proper function in this regard, and, after doing so, determined that it would be best to leave the boy with his father in familiar surroundings to which he had satisfactorily adjusted and become accustomed. We concur in that conclusion and find nothing in fact or law which would warrant our disturbing the order of the trial court.

The principal cases cited by Petitioner are either distinguishable or support Respondent’s position. Nye v. Nye, 411 Ill 408, 105 NE2d 300, is cited for the proposition that custody awards should favor the mother when, as here, she is found to be a fit parent. In that case the court held that the chancellor had abused his discretion in transferring custody of child from mother to father. The mother is to be favored, the court said, when the issue is custody of a child of tender years, and to justify a modification of the original decree, there must be “compelling evidence” that custody should not remain with the mother. The factual situation in that case, however, was the converse of that in the instant case. The court noted that the husband had voluntarily accepted the agreement embodied in the prior decree and did not later allege any misconduct by the mother of which he had been unaware at the time of the decree. The chancellor based his decision on changed circumstances, but the Supreme Court found none to have been shown to adversely affect the best interests of the child. The order for modification of custody was therefore not warranted and was reversed.

The decision in Nye is not compelling as authority for petitioner’s argument here, since, as can be seen from recital of the issues involved, that decision, and the many in which it has been followed, did not declare as an immutable rule of law that a child should be awarded to its mother in every case in which she is found to be a fit parent. It held only that it is “usual” in such cases (page 414), but that “ [t]he guiding star is and must be, at all times, the best interest of the child,” and that a post-decree change in circumstances is required to justify a custody modification (page 415). On this last principle see, also, Mabbatt v. Mabbatt, 78 Ill App2d 455, 223 NE2d 191.

Petitioner also cited Szczawinski v. Szczawinski, 37 Ill App2d 350, 185 NE2d 375, where this court reversed a modification order which had taken custody away from a mother who refused to honor visitation provisions in a divorce decree granting her sole custody. As in Nye, however, the Szczawinski decision was not based merely on the advantages to be found in maternal supervision of the child. That decision recognized (as do we) that child custody orders must be reviewed and modified from time to time as the unfolding circumstances may require, but held that the contumacy of the mother would not justify punishment of the child through alteration of the original decree. Since there had been no showing that the mother was unfit or that the circumstances of the child’s custody had become so adversely altered as to warrant a change, the chancellor’s order of modification was held to be an abuse of discretion. We reaffirm what we said in Szczawinski at page 353:

It is the policy of courts of review to recognize a broad discretion in a chancellor called upon to award custody of children, . . . but this policy cannot properly admit that a definite award of custody has no permanence or finality whatsoever. (Maupin v. Maupin, 339 Ill App 484, 492, 90 NE2d 234 (1950).) It has been repeatedly stated that “a decree fixing the custody of a child is final on the conditions then existing and should not be changed afterwards unless on altered conditions since the decree, or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child.” Thomas v. Thomas, 233 Ill App 488, 493 (1924).
“A child’s welfare is at stake, and nothing is more injurious to that welfare than to have the child shuttled between contesting parents.” (Bulandr v. Bulandr, 23 Ill App2d 299, 303, 162 NE2d 585 (1959).) This statement aptly covers the situation here.

For cases in which the change in circumstances was held sufficient to justify a change in custody, see Dunning v. Dunning, 14 Ill App2d 242, 144 NE2d 535; Frank v. Frank, 26 Ill App2d 16, 167 NE2d 577; and Mabbatt v. Mabbatt, 78 Ill App2d 455, 223 NE2d 191.

We find the trial court’s decision to be amply supported by the record. In the absence of clear and convincing evidence that manifest injustice has been done, or that the trial court has abused its discretion, reviewing courts should not reject the findings and decisions of the trial courts in cases of this character because in so doing we would merely be substituting our own personal judgments for those reached from a far better vantage point. Mabbatt v. Mabbatt, 78 Ill App2d 455, 228 NE2d 191; Wade v. Wade, 345 Ill App 170, 102 NE2d 356; Dunning v. Dunning, 14 Ill App2d 242, 144 NE2d 535; Bateman v. Bateman, 337 Ill App 7, 85 NE2d 196; Hahn v. Hahn, 69 Ill App2d 302, 216 NE2d 229.

The order of the Circuit Court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.

       The following is found in the record as part of the statement made by the trial court at the conclusion of the hearing:
      ... I want all of you to know that my decision in a case like this is one of the worst burdens that I have to face as judge. When a Court makes decisions respecting money or property rights, or similar matters, of course those judgments are important; but they don’t in any way approach the gravity of such a decision or ruling that I may make here. Of course, it is going to affect the lives of these children and affect the lives of the litigants here. The Court is not infallible. It doesn’t have a crystal ball. In effect, it’s being asked to play God to these children and to these parents: and the nearest the Court can come to making a sound judgment is to have listened to the witnesses on the stand, seen their demeanors, to have read the law submitted to me; to read other law that the Court on its own initiative thought pertinent; to have listened to the arguments of Counsel; reviewed the proceedings in the case and then tried to make some sort of concerted judgment.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Allen Colston, Defendant-Appellant.
    Gen. No. 50,679.
    First District, Fourth Division.
    March 15, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald Katz, 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, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged

Robbery.

Judgment

Upon a jury verdict finding defendant guilty, the trial court sentenced him to a term of four to ten years.

Contentions on Appeal

(1) The evidence relating to identification of defendant was insufficient to establish guilt of defendant beyond a reasonable doubt.

(2) Since defendant did not testify, the State’s introduction of evidence concerning prior crime by defendant constituted reversible error.

(3) Denial of defendant’s request for production of witness’ statement to police and police report concerning same, to be used for impeachment purposes, was also prejudicial error.

Opinion

(1) We have examined the record on the question of identification, and conclude that there was sufficient testimony, if believed, to support the jury’s conclusion that defendant was the man who perpetrated the robbery.

(2) and (3). As to points (2) and (3), as set forth above, the State’s Attorney has confessed error, and requested reversal and remandment. Since this calls for exercise of our judicial function, we have been required to examine the record in this regard also. People v. Kelly, 66 Ill App2d 204, 209, 214 NE2d 290.

During the State’s case in chief, a police officer testified concerning an address to which he had gone in an attempt to locate defendant. Despite an anticipatory objection by defense counsel, the State’s Attorney was permitted to ask the witness where he had obtained the address, and the officer responded: “From the Illinois State Parole Office.” Objection and motion for a mistrial were overruled.

The inferences to be drawn from this testimony are so patent as to be obviously prejudicial to defendant who did not testify, and who therefore did not open up the question of his prior criminal record as it would relate to his credibility as a witness. We consider this to be sufficient grounds for reversal. See People v. Williams, 72 Ill App2d 96, 102, 218 NE2d 771 and cases there cited.

As to point (3), the State’s principal witness testified that she had given the police a description of defendant prior to his arrest, and that this statement had been written down by one of the officers. A timely request that this statement be made available to defense counsel for cross-examination and impeachment was denied by the court after objection by the State’s Attorney. This also constitutes reversible error. People v. Wolff, 19 Ill2d 318, 327, 167 NE2d 197; People v. Beard, 67 Ill App2d 83, 89, 214 NE2d 577. The fact that the witness had not signed the statement (the point which the trial court apparently considered determinative) is of no consequence. People v. Jolliff, 31 Ill2d 462, 466-467, 202 NE2d 506; People v. Neiman, 30 Ill2d 393, 397, 197 NE2d 8; People v. Williams, 72 Ill App2d 96, 101, 218 NE2d 771.

Decision

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

Reversed and remanded.

DRUCKER and McCORMICK, JJ., concur.