dissenting:
In reversing the decision of the trial court, the majority directed its attention primarily to the question of whether the minor defendant intended or expected to burn the automobile when he ignited the discolored area under or behind the rear of the motor vehicle. It was concluded that the burning of the automobile was the intended result or, in the case of the specially concurring opinion, the expected result of an intentional act and that the finding of the trial judge was against the manifest weight of the evidence. It is from this holding that I must respectfully dissent.
The evidence shows that in the early afternoon of September 6, 1972, the defendant Robert Sapp was visiting his friend Brian Moberly who lived about 1% blocks from where the vehicle in question was parked. At approximately 1 P.M. the defendant began walking to nearby Andrews Park where he was joined by Brian who followed close behind. There they met two girls, Mary Drnek and Pam Heron. About 15 minutes later the four went to pick grapes on the property where the Cadillac was located. Shortly thereafter the girls left and began walking back to Andrews Park. Defendant then asked Brian for cigarettes and matches. Brian did not have cigarettes but he did have matches which he gave to the defendant. Defendant testified that he saw a discoloration about one-half foot behind the bumper of the car. He and Brian referred to it as an oil spot, although at that time they were not exactly sure what it was. Claiming that he was angry because Brian did not have any cigarettes, defendant flicked several lighted matches at the spot from about 6 to 8 feet away. The third match thrown ignited the spot and defendant fled in the direction of Mary Drnek and Pam HerOn. When he got to them he told them the spot under the car had fit, realizing at that time that it had to be gasoline since oil would have required greater heat to ignite. The girls apparently returned to the scene of the fire where Brian had unsuccessfully attempted to scrape out the flames.
Shortly thereafter Officer Lindquist arrived to investigate the incident. Brian, Pam and Mary were standing together and Officer Lindquist had a conversation with the three of them in the yard next to the car. Portions of the statements taken of these persons as well as that of defendant are set out in the text of the opinion and much emphasis has been placed upon their content by the majority.
Among other things, these statements seem to indicate that defendant was aware of a gasoline leak before flicking the matches at the discolored area and that he had spoken of throwing lighted matches at the gasoline or of lighting the car. These statements, however, are those of young teenagers taken in the context of what appears to have been a joint conversation. They are fragmented and at times inconsistent. Moreover, they were almost totally contradicted by the in court testimony of Robert Sapp and Brian Moberly.1
In his testimony, Brian Moberly clearly stated that there had been no conversation between defendant, himself or the girls about harming or causing injury to the vehicle in any way nor any discussion about any substance on the ground when- the girls were present. Moreover, he testified that he had not seen any gas leaking from the car and that there had been no discussion about gasoline prior to the ignition of the car. Brian admitted making the signed statement given to Officer Lindquist but claimed that he did not read it carefully before signing it. He was unable to remember telling Officer Lindquist anything about a gas leak and stated that it was only after the spot had ignited that he became aware of the presence of gasoline.
Robert Sapp testified in a similar fashion. He claimed that there had been no mention of any gasoline dripping from the car nor any discussion about injuring the car in any way. He further claimed that he had not noticed any gasoline dripping from the car nor the smell of any gasoline prior to the car’s ignition. He had not realized that the spot was gasoline until after it had ignited and it may be inferred from his testimony that any subsequent references he made to the presence of gasoline were based upon this after-the-fact realization.
Defendant refuted his signed statement, claiming that he did not tell Officer Lindquist that he saw something leaking from the car, that he did not notice Officer Lindquist put the word “gas” in the statement and that it was Officer Lindquist who used the term “gas” in his conversation with him. Defendant clearly stated that if he had known that the spot was gasoline he would not have flipped matches at it and, upon initial investigation, he told Officer Lindquist that he did not mean to bum the car.
The trial judge commented, at length, regarding the fact questions to be decided. He stated that in his belief defendant flipped the matches at the oil spot intending to light the oil; however, he indicated that when the matches were flipped at the oil spot defendant did not intend to burn the Cadillac. The judge stated:
“I might say I am mindful of the fact that this boy was fourteen years of age, and his expectation and intention was somewhat affected by the Court’s view of the subjective regard for what he was thinking of. And I’m not unmindful of the fact that the police felt that the result of burning the Cadillac was unexpected. The officer said that in so many words.”
The court concluded its commentary with the finding that defendant expected the oil spot to ignite but did not expect the Cadillac to burn. This conclusion is reiterated in the court’s order of March 30, 1973, wherein it was stated.
“6. The evidence adduced at trial establishes that ROBERT SAPP did not intend or expect to set fire or damage the 1966 Cadillac * *
The trial judge’s acceptance of the credibility of witnesses despite existence of impeaching evidence is peculiarly the function of the trier of fact who has the superior opportunity to see and hear testimony and determine its truthfulness and therefore the amount of weight which should be attributed to it. (See Albertina v. Owens (1971), 3 Ill.App.3d 703, 704-705.) His findings under such circumstances are entitled to great weight on appeal and should not be set aside unless they are palpably erroneous. (See Fisher v. City of Aledo (1974), 23 Ill.App.3d 190, 192; Smith v. Realcoa Construction Co. (1973), 13 Ill.App.3d 254, 260.) Here, the question of intent was an issue of fact (see also Jannes v. Microwave Communications, Inc. (1973), 16 Ill.App.3d 582, 591) determined in a close case where the evidence was conflicting. In such cases, where findings of fact must necessarily be dictated to a large extent by impressions of credibility received by the trial judge from his observations of the witnesses, it is particularly true that an appellate court may not disturb the findings of the trial court unless they are manifestly against the weight of the evidence. Marcano v. Chicago Transit Authority (1974), 22 Ill.App.3d 427, 431; see Geist v. Lehmann (1974), 19 Ill.App.3d 557, 561.
In order that the judgment be against the manifest weight of the evidence, it must appear that conclusions opposite to those reached are clearly evident (Marcano v. Chicago Transit Authority (1974), 22 Ill. App.3d 427). This is simply not true of the conclusions reached by the trier of fact in the present case. Rather it seems clear from the evidence that defendant was engaged in horseplay. (See Vermont Mutual Insurance v. Dalzell (1974), 52 Mich. App. 686, 218 N.W.2d 52.) Although he may well have been guilty of gross negligence or acts amounting to an utter indifference to or conscious disregard for the property of another, it does not follow, ipso facto, that he was guilty of deliberate or intentional destruction of property (see Cowan v. Insurance Company of North America (1974), 22 Ill.App.3d 883, 895). Certainly it cannot be concluded on the facts adduced that this youth, age 14, without any apparent motive, did in broad daylight and in the presence of several other persons, intentionally bum the automobile in question. And so the trial court held.
An analysis of the several insurance cases cited in the court’s opinion (see also Phoenix Insurance Co. v. Helton (Fla. App. 1974), 298 So. 2d 177; Hartford Fire Insurance Co. v. Wagner (1973), 296 Minn. 510, 207 N.W.2d 354; Rankin v. Farmers Elevator Mutual Insurance Co. (10th Cir. 1968), 393 F.2d 718; Kraus v. Allstate Insurance Co. (3d Cir. 1967), 379 F.2d 443; State Farm Fire & Casualty Co. v. Muth (1973), 190 Neb. 248, 272, 207 N.W.2d 364; and Terito v. McAndrew (La. App. 1971), 246 So.2d 235) manifests a distinction between those types of actions which have yielded an “intended” or an “intended or expected” result and those which have not. The acts of defendant are not comparable with murder (Hartford Fire Insurance Company v. Wagner (1973), 296 Minn. 510, 207 N.W.2d 354), a deliberate battery (Terito v. McAndrew (La. App. 1971), 246 So.2d 235), the explosion of a bomb (Kraus v. Allstate Insurance Company (3rd Cir. 1967), 379 F.2d 443), or a purposeful motor vehicle collision (Rankin v. Farmers Elevator Mutual Insurance Company (10th Cir. 1968), 393 F.2d 718). I am unable to conclude, therefore, that a result other than that reached by the trial court is clearly evident.
Here the trial judge has observed the witnesses, heard the testimony, viewed the exhibits and made careful and complete findings of fact. It is his conclusion that defendant neither intended nor expected the Cadillac to bum and I would affirm that holding.
Neither Pam Heron nor Mary Dmek were called as witnesses.