text:
    James W. Burke et al., Plaintiffs-Appellants, v. Zipco Oil Company et al., Defendants-Appellees.
    (No. 58444;
    First District (4th Division)
    April 24, 1974.
    Addis E. Hull and Rodney D. Joslin, both of Chicago (Jenner & Block, of counsel), for appellants.
    Peterson, Ross, Rail, Barber & Seidel, of Chicago (Herbert C. Loth, Jr., of counsel), for appellees.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

This is an action pursuant to section 13 of the Securities Law of 1953 (Ill. Rev. Stat. 1973, ch. 121½, par. 137.13) to rescind the sales of working interests in four oil and gas wells. The wells, which are located in Illinois, are known as “Eldorado West #1”, “Burton #1”, “Shick Well # 1” and “McDonald Well # 1”. Plaintiffs James Burke and Patricia Krueger- purchased interests in all four wells. Nathaniel Reed purchased interests in Eldorado West and Burton #1, and Diane and Daniel Gallagher purchased an interest in Eldorado West. In their complaint the plaintiffs alleged that the working interests in these wells were securities and that the defendants sold them in violation of the act by failing to register them with the Secretary of State as required by section 5 (Ill. Rev. Stat. 1973, ch. 121½, par. 137.5). They sought to avoid the sales and recover the purchase prices, plus interest and attorney’s fees.

In their answer the defendants conceded that the interests were securities and that they were not registered with the Secretary of State, but denied that this required them to void the sales. In their answer to interrogatories they claimed that the interests were sold in a transaction exempt from registration under the provisions of section 4H (Ill. Rev. Stat. 1973, ch. 121½, par. 137.4H), which provides essentially that sales of fractional undivided interests in oil and gas leases are exempt if they are made to 25 persons or less within any consecutive 12-month period, or if the aggregate selling price does not exceed $25,000 within any such period; and certain other requirements are met. These include the filing of a report of the sale with the Secretary of State within 30 days.

The parties Bled cross motions for summary judgment based upon the pleadings and the defendants’ answers to interrogatories. With respect to the interests in the Eldorado West well, the court found that the defendants had not registered the sales with the Secretary of State and had not qualified them as exempt under the provisions of section 4H because they had not filed a report of the sale within 30 days. The court entered judgment against the defendants for the purchase price paid by each plaintiff, plus interest at five percent, and attorney’s fees of $1000. The defendants did not appeal this ruling.

With respect to the Burton, Shick and McDonald wells, the court found that the sales were exempt from registration under section 4H and entered judgment in favor of the defendants. The plaintiffs instituted the present appeal from the judgments concerning the Shick and McDonald wells on the theory that the reports of sale filed by the defendants incorrectly stated the prices of the interests sold. They do not dispute that the defendants otherwise complied with the requirements of section 4H and do not appeal from the judgment concerning the Burton well.

The record reveals that the interests in the wells which are the subject of this appeal were conveyed by written agreements, all of which are identical. Each recites that the seller, who is the defendant Zipco Oil Company, has received a certain sum of money from the buyer, who is one of the plaintiffs, for an undivided fractional working interest in the leases named. Ten dollars is designated as the cost of the leasehold, and the remainder of the purchase price is designated as the cost of drilling a well to a specified depth and performing certain tests for the presence of gas and oil. The drilling of the well is the obligation of the seller. The agreements further provide that if a producing well is drilled, the buyer will pay a fixed sum as “completion costs” and a pro-rata share of the monthly expenses of operation.

The agreements covering the Shick well recite that Zipco received $6000 apiece from James Burke and Patricia Krueger in return for respective undivided one-eighth working interests. In their answers to interrogatories the defendants stated that James Burke and Patricia Krueger each paid a total of $12,000, plus operating expenses, for their interests in the well. This sum was paid in two installments of $6000. The first installment represented the price of the leasehold and initial drilling expense. The second represented completion costs, as a producing well was drilled. On their report of the sale filed with the Secretary of State the defendants listed the price of each interest as $6000.

The agreements covering the McDonald well recite the receipt of $4800 each from James Burke and Patricia Krueger. It appears from the defendants’ answers to interrogatories that each actually paid a total of $10,800. This was paid in one lump sum. On their report to the Secretary of State the defendants listed the price of each of these interests as $4800.

The report of sale to the Secretary of State is required to set forth “the name and address of the issuer and of the controlling person, if the sale was for the direct or indirect benefit of such person, the total amount of the securities sold under this subsection H, the price at which the securities were sold, the commissions or discounts paid or given, the names and addresses of the purchasers, and a representation that offers to sell such securities were not made to persons in excess of the number permitted by this subsection.” (Ill. Rev. Stat. 1973, ch. 121½, par. 137.4H.) It is the position of the plaintiffs that the reports filed by the defendants failed to comply with these provisions because the selling prices stated were substantially less than the sums that they actually paid for their interests. They argue that the “entire transaction” with the defendants constitutes the security and that by misstating the price the defendants failed to qualify for the exemption established by section 4H. The defendants contend that the price of a working interest in an oil or gas well does not include completion or operation expenses, and therefore that they satisfied the requirements of the act. They contend further that the definition of “selling price” sought by the plaintiffs would be unworkable in the oil and gas industry. The question to be decided by this court, then, is what constitutes the price of a working interest in an oil or gas well for the purpose of filing the report required by section 4H.

Our research discloses that no court of review in Illinois has considered this precise question. However, the Illinois Secretary of State, acting pursuant to the authority granted by section 11 of the Securities Law (Ill. Rev. Stat. 1973, ch. 121½, par. 137.11) has promulgated rules and regulations which define more fully some of the terms set forth in the statute. These define the term “working interests” as “fractional undivided interests in an oil or gas leasehold which are subject to any portion of the expense of development, operation or maintenance.” (Ill. Sec. of State R.131(a)(3) (1902), 1 CCH Blue Sky L. Rep. §.16,615.) Several decisions of our courts which have considered the nature of a working interest for other purposes have indicated that it is an undivided interest in all of the oil and gas produced upon a particular parcel of land. (See, e.g., Fry v. Farm Bureau Oil Co. (1954), 3 Ill.2d 94, 119 N.E.2d 749; Williams v. Sohio Petroleum Co. (1958), 18 Ill.App.2d 194, 151 N.E.2d 645.) Thus, the emphasis appears to focus upon the interest acquired in the leasehold itself rather than any contemporaneously acquired obligations to bear a portion of the expense of developing it.

Such an interpretation is also implicit in the case of Hammer v. Sanders (1956), 8 Ill.2d 414, 134 N.E.2d 509, which has been cited to us by the defendants. There the court considered whether a number of agreements which conveyed working interests in a group of oil leases in return for the assumption of a portion of the drilling costs constituted a security within the meaning of the Securities Law of 1919. (Ill. Rev. Stat. 1953, ch. 121½, par. 96 et seq.) The subject agreements were similar to the ones in the present case except that the entire consideration was listed as drilling expense. The court noted that each agreement appeared to have two purposes: “(1) to assign or evidence the sale of or promise to assign, an undivided * * * working interest’ in the leases * * *; (2) to evidence an agreement whereby [the defendant] is to drill a test well and [the plaintiff] is to pay [a specified sum] as his share of the cost, with a further provision for the payment of his proportionate part’ in equipping and operating a producing well * * *.” (8 Ill.2d at 419, 134 N.E.2d at 512.) Continuing, the court stated that “[o]n its face, then, the instrument involves the sale of an undivided * * * interest in the leases, coupled with or forming a part of a development contract to procure a test of the land for oil and gas.” 8 Ill.2d at 420, 134 N.E.2d at 512.

From the foregoing it is apparent that the court considered the undivided interest in the leases to be quite distinct from the undertaking to bear a portion of the expense of drilling, completion and operation. This was true even though, as in the present case, the interests were conveyed, arid the obligation to bear the drilling expense incurred, in the same instrument. We hold, therefore, that for the purpose of section 4H, the price of a working interest in an oil or gas well does not include costs of development. Hence the defendants in the present case were not required to state the completion and operating costs in their report to the Secretary of State, and the trial court was correct in concluding that the sales to the plaintiffs were exempt.

We note in passing that our holding would indicate that drilling costs should not be included in the price of a working interest. The defendants in the present case included the drilling cost in their report of the sale, and it appears that this is the practice of the industry where the participation agreement does not state the cost of the leasehold interest separately or where the agreement indicates that the working interest will not be sold unless the investor agrees to undertake a portion of the expense of drilling a test well. Inasmuch as neither party has questioned this practice, we need not reach any decision concerning it.

Our holding will not subvert the purpose of the Securities Law, which is to protect innocent investors from dishonesty and irresponsibility on the part of persons engaging in the sale of securities (Foreman v. Holsman (1957), 10 Ill.2d 551, 141 N.E.2d 31) because the circumstances surrounding the filing of the report required by section 4H are such that no prospective investor could be said to rely upon the information contained therein. The report is not required to be filed until 30 days after the sale, and the information that it contains is confidential except in certain situations involving court proceedings. (Ill. Rev. Stat. 1973, ch. 121½, par. 137.4H.) To require the inclusion of development expenses as part of the price of the working interest would, therefore, serve no useful purpose. It would, in many instances, require the sellers of such interests to do the impossible, since it appears that these interests are commonly sold prior to the time that any drilling is actually commenced, and that hence the drilling, completion and operating expense is unascertainable within the time that the 4H report is required to be filed.

Finally, we note that the plaintiffs in the present case did not seek to avoid the sales until October 2, 1970, almost 2 years after the agreements were entered into. From the income figures set forth in the complaint it may be assumed that within this time the wells were drilled and found to be less profitable than anticipated. We also note that the plaintiffs do not allege that the defendants were guilty of any fraud or misrepresentation, but merely that they violated the Securities Law. We believe that the Securities Law serves a useful purpose and should be construed liberally in this light; however, it is intended to function as a shield for the innocent and not a sword for the investor who, because of the speculative nature of the venture or his own poor business judgment, fails to reap the expected return on his investment.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

DIERINGER and JOHNSON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE BURMAN

license: Public Domain

text:
    Helen Browne, Plaintiff-Appellant, v. Chicago Transit Authority, Defendant-Appellee.
    (No. 58815;
    First District (4th Division)
    April 24, 1974.
    Thompson & Thompson, of Chicago (Thomas J. Keevers, of counsel), for appellant.

      John J. Devine, John J. O’Toole, and James F. Stack, all of Chicago, for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

Plaintiff, Helen Browne, brought an action to recover damages for injuries she sustained while she was a passenger on a bus operated by the Chicago Transit Authority (C.T.A.). The cause was tried before a jury and a verdict was returned finding for the defendant. Plaintiff appeals from the judgment entered on the verdict.

The contentions raised by plaintiff on appeal are that (1) the verdict exonerating the C.T.A. from liability is against the manifest weight of the evidence and should be set aside, and that (2) the court erred in denying plaintiff’s motion for a mistrial when the defense counsel injected racial prejudice into the case, (3) in instructing the jury, and (4) in failing to declare a mistrial when the jury affirmatively indicated to him that they were considering matters outside of the issues in the case.

The undisputed evidence discloses that on Friday, September 20, 1968, at about 6 o’clock in the evening, plaintiff boarded an Archer Avenue bus operated by the C.T.A., paid her fare, and took a seat. At about 6:25 P.M. the bus was proceeding in a southwesterly direction on Archer Avenue near Damen Avenue. The plaintiff rose from her seat and walked toward the front of the bus to get off. As she did so the bus made a sudden stop and she fell to the floor, sustaining injuries.

At the close of the evidence, the trial judge granted plaintiff’s motion for a directed verdict on the issue of contributory negligence. The salient factual issue presented to the jury on the question of defendant’s liability, then, was the cause of the sudden stop. The pertinent evidence is contained in the testimony of certain of the occurrence witnesses testifying at trial.

Joseph Stalilionis testified for the plaintiff that he was a passenger on the bus near the front. He stated that as it approached Damen Avenue, it came to a sudden stop and everybody was jostled. He did not see any other vehicle and testified that the bus came to the sudden stop beyond the east pedestrian walk across Archer Avenue. The bus did not, according to him, come to a stop at or near the intersection of Archer and Damen prior to the sudden stop.

Jerome Sujewicz was also called by plaintiff as a witness and testified that he was a passenger on the bus. It was crowded and people were standing. He was seated on the right hand side behind the exit of the bus. As it approached Damen the signal light was green. He did not think that any passengers got off so the bus kept on going. “[A]11 of a sudden the light changed to red and the bus made a dead stop.” Then he saw an automobile that he did not see before “pull out from the front of the bus * * * to make a right hand turn.” The car had been going in the same direction as the bus. The bus stopped at the comer on the northeast side of the intersection and in the crosswalk.

Florence Havlik, also a passenger, was called as a witness by the defendant. She testified that the bus came to a normal stop at Damen Avenue. The bus started again and came to a sharp stop.and somebody in the aisle fell down. The bus was crowded at the time and people were standing in the aisle. She felt the jerk while she was sitting. Other people were jostled and thrown about the bus. At that time the bus was halfway across Damen. She did not see any car in front of the bus at that point.

Darnell Jones, the operator of the bus, testified that Archer Avenue has two lanes going southwest and two going northeast at the intersection with Damen Avenue. There is a turning lane for north and southbound traffic off of Archer onto Damen. There were traffic signals at the intersection, including left turn signals for cars turning left to proceed north or south on Damen. He said he stopped before Damen Avenue because the light was red. He observed that there were three cars on the opposite side of Damen, facing him, in the turning lane to turn north onto Damen. When these cars had the green arrow to make the turn, two of them went through. The third car did not. “The light changed green for me to go. I proceeded into the intersection and then -the car swerved in front of me * ° *.” He jammed on his brakes to avoid hitting the car. He said that was when the plaintiff fell. He was then in the center of Damen Avenue^ — in about the middle of the intersection.

On cross-examination he stated that he knew that the three cars intended to make left turns at that point. He recognized that when the green arrow allowing a left turn onto Damen is showing, the signal for through traffic on Archer is red. And when the green arrow goes off, the green light for through traffic on Archer comes on immediately with no yellow, thus giving no warning to the turning driver of the arrow going off. He saw the first two cars make their turns with the arrow. He watched the third car continuously because he knew it was in the left turn lane. The car stopped. He started the bus as soon as the light turned green. The third car then came in front’ of him and he had to jam on the brakes to avoid hitting it. He had been a driver for a little over 2 months at the time. Other people besides the plaintiff were jostled about and thrown about the interior of the bus because of the stop. He had a full load of about 70 to 80 passengers, including some standing in the aisle.

The verdict for the defendant will be set aside only if it is against the manifest weight of the evidence. (Lau v. West Towns Bus Co., 16 Ill.2d 442, 451, 158 N.E.2d 63, 68.) In order to so hold we must determine that an opposite conclusion is clearly evident. (Payne v. Kingsley, 59 Ill.App.2d 245, 249, 207 N.E.2d 177, 179.) We fully recognize our duty to carefully and thoroughly examine the record to determine this issue.

As we pointed out, the trial court found — and correctly we believe — that under the evidence as a matter of law the plaintiff was in the exercise of ordinary care for her safety. There was thus no issue as to contributory negligence on her part submitted to the jury. The ultimate issue then was the cause of the sudden stop and whether it constituted negligence. We note that negligence here is not a want of ordinary care. Although not an insurer of the absolute safety of a passenger, a common carrier has a duty to exercise the highest degree of care consistent with the practical operation of its conveyances to protect the safety of the passenger. (Rotheli v. Chicago Transit Authority, 7 Ill.2d 172, 177, 130 N.E.2d 172, 175.) Furthermore, as recognized in Tolman v. Wieboldt Stores, Inc., 38 Ill.2d 519, 523, 233 N.E.2d 33, 35:

“ "The happening of an accident to a passenger during the course of his transportation raises a presumption that the carrier has been negligent. The burden of rebutting this presumption rests upon the carrier. * * * Proof that plaintiff was a passenger, that the accident happened, and that the injury was inflicted, imposes upon the carrier the duty to explain or account for the accident, and to prove that it resulted from a cause for which the carrier should not be held responsible. [New York, Chicago and St. Louis Railroad Co. v. Blumenthal, 160 Ill. 40, 48-49, 43 N.E. 809, 811.] * * *'"

Only two witnesses testified as to the reason for the sudden stop by the bus. Jerome Sujewicz said he saw “a car pull out from the front of the bus * * * to make a right hand turn,” and that it had been going in the same direction as tire bus. On cross-examination the witness admitted giving a statement that he was not in a position to see the other vehicle. The driver testified that he stopped the bus for a red light. While it was standing still he noticed three automobiles waiting for a green arrow to make a left turn north onto Damen. He saw two of the cars go through. He started up “as soon as” his light turned green, although acknowledging that the left turn signal would have simultaneously gone off at the same time without warning to turning drivers. Although he said the third car had stopped, and that he continuously watched it, his only explanation for the abrupt stop was that “[h]e came in front of me, and to avoid hitting him, I had to jam my brakes.”

After carefully considering all the evidence, we hold the verdict finding that the driver used the highest degree of care consistent with the practical operation of the bus to be against the manifest weight of the evidence and find that an opposite conclusion is clearly evident, apparent, and undisputable.

For the purpose of guiding the trial court in the event the cause is retried we shall dispose of one other question presented. However, we do not deem it requires a detailed discussion. We believe the cross-examination of plaintiffs witness, Joseph Stalilionis, by defense counsel, regarding his reference to the bus driver in the statement he gave to plaintiffs counsel improperly and prejudicially injected racial prejudice into the jury’s deliberations. Although bias or prejudice of a witness is material and can generally be shown, it is also recognized that

“if certain evidential material, having a legitimate probative value, tends nevertheless to produce also, over and above its legitimate effect, an infair prejudice to the opponent, or by virtue of the personality of the witness tends to receive an excessive weight in the minds of the tribunal, there is good ground for excluding such evidence, unless it is indispensable for its legitimate purpose.” (VI Wigmore on Evidence § 1864, at 491 (3rd. ed. 1940).)

Here witness Stalilionis’ remark regarding defendant’s black driver, who was not a party to the litigation, that “All them spooks look alike to me,” appearing in a statement taken before trial by plaintiff’s attorney’s investigator, was not indispensable as impeaching evidence. And we feel, under the circumstances here, its use on cross-examination unfairly prejudiced the plaintiff in the minds of the jurors, two of whom were black.

For the reasons given the judgment must be reversed and the cause remanded for such other and further proceedings as are consistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

ADESKO, P. J., and JOHNSON, J., concur.


text:
    James Coates Motors, Inc., Plaintiff-Appellee, v. Avis Rent-A-Car System, Inc., Defendant-Appellant.
    (No. 58908;
    First District (4th Division)
    April 24, 1974.
    Allan N. Lasky, Joel L. Widman, and Howard P. Alterman, all of Chicago, for appellant.

      O’Brien, Hanrahan, Wojcik, and Conniff, all of Chicago (James S. Conniff, of counsel), for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Cook County granting the plaintiff’s motion for judgment on the pleadings. In its complaint the plaintiff alleged that on or about March 30, 1972, it purchased a certain automobile from the defendant, that with the express and/or implied consent and permission of the defendant it left this automobile in the defendant’s care, custody and control, and that on April 3, 1972, it demanded the vehicle’s return, but the defendant failed, was unable and/or refused to deliver it.

The defendant filed an answer and affirmative defense and, later, an amended answer and affirmative defense. Paragraph 1 of the amended answer admitted purchase by the plaintiff of the vehicle referred to in the complaint and stated that this vehicle was purchased along with several others on March 29, 1972, and that the titles to all of the vehicles were delivered to the plaintiff on March 29. Paragraph 2 denied that the plaintiff had left the vehicle in the defendant’s custody with its permission and stated that the plaintiff had agreed to take delivery of the vehicles within twenty-four hours, but had failed to do so. It alleged that the risk of loss had passed to the plaintiff on March 29, when it took title to the vehicles. Paragraph 3 stated that all of the vehicles purchased by the plaintiff were ready for delivery on March 30, as agreed, but that the plaintiff did not take delivery of them on that day. It stated further that the plaintiff took partial delivery on March 31, and returned to take delivery of the remainder on April 2, at which time it was discovered that the vehicle in question was missing. Paragraph 4 denied that the defendant failed to deliver the vehicle and stated that the defendant was ready, willing and able to deliver the vehicle on March 30. The affirmative defense reiterated in substance the allegations contained in the answer, including that the risk of loss had passed to the plaintiff on March 29, and stated further that the vehicles purchased by the plaintiff had been stored on a lot owned by the defendant that was completely enclosed with a barbed wire and chain-link fence and was guarded continually by the defendant’s employees during the hours that it was not locked.

The plaintiff moved for judgment on the pleadings. After a hearing, the court granted the motion and entered judgment against the defendant in the amount of $3250 and costs. The defendant instituted the present appeal from this judgment.

Section 45 of the Civil Practice Act (Ill. Rev. Stat, 1973, ch. 110, par. 45) provides that “[a]ny party may seasonably move for judgment on the pleadings.” The motion raises the question whether there is any issue of material fact present by the pleadings, such as would require a hearing on the merits, and if there is no such issue, which party is entitled to judgment. (Transport Insurance Co. v. Old Republic Insurance Co. (1972), 6 Ill.App.3d 844 286 N.E.2d 755; Baillon v. S. S. Kresge Co. (1972), 4 Ill.App.3d 82, 277 N.E.2d 719.) In ruling on the motion, the court must take as true all well pleaded facts, and all fair inferences drawn therefrom, contained in the pleadings of the party opposing the motion. (Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill.2d 443, 266 N.E.2d 897; Rhodes v. Rhodes (1967), 82 Ill.App.2d 435, 225 N.E.2d 802.) Where the pleadings put in issue one or more material facts, evidence must be taken to resolve such issue or issues, and a judgment may not be entered on the pleadings. A. A. Erickson Bros., Inc. v. Jenkins (1963), 41 Ill.App.2d 180, 190 N.E.2d 383.

On appeal the defendant contends that the court erred in granting the plaintiffs motion because its amended answer and affirmative defense admitted only the sale of several automobiles and that it was unable to deliver the vehicles in question upon request and raised several material issues of fact. These are stated as whether title passed to the plaintiff on March 29 and whether the vehicles were left at the defendant’s lot with defendant’s express or imphed consent. The defendant also contends that the well pleaded facts in its answer and affirmative defense estabhsh that the risk of loss passed to the plaintiff on March 29 and therefore that the defendant, if anyone, was entitled to judgment on the pleadings.

After reviewing the record, we believe that the trial court acted properly in entering judgment for the plaintiff. We agree with the defendant that its answer and affirmative defense raised an issue as to the point at which the risk of loss passed to the plaintiff, but it is our opinion that this issue is not material. The plaintiff’s complaint sounds in breach of bailment rather than breach of the contract of sale. Thus the plaintiff established a prima facie case by alleging merely that it had left the vehicle with the defendant in good condition and that the defendant had refused or been unable to return it when requested, and these allegations were not denied.

It is true that a bailee is not an insurer and is not liable in the absence of negligence. (Vander Beke v. Stone (1957), 14 Ill.App.2d 109, 142 N.E.2d 814.) However, when a baffor estabhshes that a chattel stored in good condition was not returned, a presumption of negKgence arises (Clark v. Fields (1967), 37 Ill.2d 583, 229 N.E.2d 676; Lederer v. Railway Terminal and Warehouse Co. (1931), 346 Ill. 140, 178 N.E.2d 394), which shifts the burden to the bailee to come forward with evidence that he was free from fault. (Vander Reke v. Stone (1957), 14 Ill.App.2d 109, 142 N.E.2d 814.) In the present case the only allegation which appears related to the defendant’s lack of fault is the statement in the affirmative defense that it stored the plaintiff’s vehicles in a fenced and guarded lot. In our view, this by itself was not sufficient to raise an issue as to whether the defendant was negligent. We hold, therefore, that the defendant failed to deliver the plaintiffs vehicle when it was required to do so and that it did not overcome the presumption that this failure was due to its own fault.

We have considered the authorities cited to us by the defendant concerning risk of loss in a sale of personal property, but find them inapplicable in the present case, which we perceive to be founded upon the breach of a bailment created after the sale was completed. For these reasons the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


author: Mr. JUSTICE MEJDA

text:
    Holly Beth Milton, Plaintiff-Appellee, v. Harold F. Britton, Adm’r of the Estate of Joy Ann Pfeiffer, Deceased, Defendant-Appellant.
    (No. 56689;
    First District (3rd Division)
    May 2, 1974.

      Dalton P. Grief and Ellis B. Rosenzweig, both of Chicago, for appellant.
    Peterson, Ross, Rall, Barber & Seidel, of Chicago (Robert G. Schloerb, Terence J. Tykinski, Theodore A. Boundas, and John W. McCullough, of counsel), for appellee.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff brought action in the circuit court of Cook County against Harold F. Britton, administrator of the estate of Joy Ann Pfeiffer, deceased, for injuries sustained while riding as a guest in an automobile owned and being operated by defendant’s decedent near Columbia City, Indiana. Plaintiff and decedent were the sole occupants in the automobile involved in the one-vehicle accident which resulted in the death of the decedent and the injuries to plaintiff. Trial was had before a jury which returned a verdict in favor of plaintiff in the sum of $45,000, and judgment was entered thereon. Defendant appeals.

Defendant contends that the trial court erred in (1) not entering the judgment notwithstanding the verdict in favor of defendant; (2) excluding the testimony of defendant’s accident reconstruction expert; and (3) instructing the jury as to the definition of wilful and wanton negligence according to Illinois law instead of Indiana law. The facts are hereinafter set forth..

The accident, involving only the car in which plaintiff and decedent were riding, occurred on June 24, 1965, at approximately 10 A.M., on U.S. Highway 30, in the State of Indiana, at a point approximately 3 miles west of Columbia City. The highway is a four-lane divided road. The two eastbound lanes measure 22 feet in width and curve slightly to the right; the depressed and sodded median strip measures 30 feet in width; and the two westbound lanes measure 24 feet in width. The posted speed limit is 65 miles per hour. The highway pavement is blacktopped. Along the northern edge of the westbound lanes is a steep embankment which extends down from the highway to an open farm field. Telephone poles were located parallel to the highway, 75 feet north of the westbound lanes. The day was hot and sunny with good visibility, and the road condition was dry.

Larry Yeiter, of the Indiana State Police, testified for the plaintiff that he was the officer who arrived at the scene to investigate the accident. He stated that he inspected the decedent’s automobile and found that the brakes were working and the brake pedal felt normal, but the frame and body were severely bent in several places. All four tires were still inflated and each had about one-third of the tread remaining. He testified that he made measurements and determined the path of the vehicle. There were tire marks in the eastbound lanes for 136 feet. The car then traveled at a 45-degree angle across the median strip for 128 feet and crossed- the westbound lanes at the same angle for a distance of 46 feet. The vehicle came to rest in an open field at a point 131 feet beyond the westbound lanes. The officer further testified that his measurements indicated that the car had traveled 42 feet in the air as it left the westbound lanes, then came in contact with the ground prior to reaching the telephone poles and came to rest 10 to 15 feet north of the telephone wires. Defendant’s objection to the opinion of the witness as to the speed of the vehicle was sustained.

Bessie Bacon testified that she was driving west on Highway 30, accompanied by her two sisters, and observed the accident. She stated that she first saw tire decedent’s automobile traveling in the right or outer lane of the two eastbound lanes. Another car was traveling in the same lane some distance in front of the decedent’s car, but moving at a slower speed. She testified that the decedent’s vehicle began to go around the lead car but instead, it left the highway and went across the median strip, bouncing as it traversed this area, then came up to and across both westbound lanes. After crossing the lanes it flew into the air and passed over the telephone wires north of the highway. As the car went up in the air it was turning over and the doors came off; some suitcases fell out and the plaintiff was thrown from the car while it was up in the air. The witness estimated the speed of decedent’s automobile to be 70 miles an hour as it started around the other car in the outer eastbound lane. She stated that the car landed about 50 feet beyond the telephone wires in an open field, but she did not go close to the car after the accident.

Helen Schroeder testified that she was riding in the right front seat of her sister’s car and she first noticed the decedent’s vehicle bouncing across the median strip. It then came across the westbound lane about 100 feet-in front of her sister’s car when it bounced into the air and began turning over; Both doors came off and both occupants and some suitcases were thrown out. She stated that the car went over the telephone wires and landed 50 or 60 feet from the pavement, and that she never went closer to the car than the edge of the highway pavement. She estimated that as the car crossed the median strip its speed was 75 miles an hour.

Ethel Bach testified that she was riding in the back seat of her sisters car and first observed decedent’s vehicle in the right hand eastbound lanes, going east. The car turned to the north and struck the left edge of the eastbound pavement, then proceeded into the median strip, bounced across to the westbound lanes, then crossed the westbound lanes, bounced into the air, flew over the telephone wires north of the highway and landed in a field. She stated that when the car flew into, the air it rolled over three, or four times, the doors opened and the plaintiff was thrown out of the right front door. She estimated the speed of the car to be 70 miles an hour.

Plaintiff testified that she does not drive and has never possessed a driver’s license. Defendant invoked the provisions of the Dead Man’s Act (Ill. Rev. Stat. 1963, ch. 51, par. 2) to prevent plaintiff from testifying as to any matters occurring prior to or during the course of the accident.

Richard Meredith testified for the defendant that he was with his wife and children, eating breakfast at a roadside picnic area 100 feet south of the eastbound lanes of Highway 30. He stated that upon hearing a screeching sound he looked up and saw decedent’s car traveling across the median strip in a northeasterly direction. He estimated the speed to be 50 to 65 miles per hour. He did not see any other eastbound vehicle. The decedent’s car went across the median strip, turned over and rolled down the embankment on the north side of the westbound lanes. It did not fly over the telephone wires to the north of the highway but went under the wires, although he did see both occupants thrown out of the car and into the air.

Ruth Meredith, wife of the previous witness, testified for the defendant that she looked up at the sound of screeching tires and saw the decedent’s car going sideways down the eastbound lanes at about 60 or 65 miles an hour, facing a northeast direction. She watched it cross the median strip to the westbound lanes where it flipped over and rolled down the embankment on the north edge of the westbound lanes. She said that at no time was the car as high as the telephone wires and that it did not go over the wires.

Following the conference on instructions, plaintiff moved to introduce the testimony of her mother, Janet Milton, as to the careful habits of the plaintiff. The motion was denied by the trial court.

We proceed to a consideration of defendant’s contentions on appeal. His first contention that the trial court erred in denying his motion for a judgment notwithstanding the verdict is predicated on the dual assertion that there was insufficient evidence presented as to the decedent’s alleged willful and wanton negligence and as to the plaintiff's freedom from contributory willful and wanton negligence. In order to prevail on either of these two assertions that a judgment notwithstanding the verdict should have been entered in his favor, the defendant must successfully meet the standard set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504. The standard to be applied is that directed verdicts and judgments notwithstanding the verdicts should be entered only in those cases in which all the evidence, when viewed in its aspects most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.

Defendant’s assertion that the evidence was insufficient to create a jury question as to whether decedent was guilty of willful and wanton negligence is similar to the contention raised by defendant in Larson v. Harris (1967), 38 Ill.2d 436, 231 N.E.2d 421. There, a guest passenger sued the defendant driver, alleging willful and wanton negligence in a one-vehicle accident wherein the plaintiff guest sustained injuries. There were no eyewitnesses, and neither the plaintiff nor the defendant could recall the occurrence due to post-trauma amnesia. The defendant did testify that prior to the accident he was in good physical condition; that his auto was in proper working order, and that the two-lane divided pavement was smooth and dry, the weather clear, and night-time visibility good. An investigating police officer testified that the defendant’s car had gone off the road, down an embankment and struck a culvert. The automobile was found 249 feet from the pavement. No evidence of speed was introduced and no evidence was presented as to the cause of its crossing the center lane and down the embankment on the opposite side of the road. In applying the Pedrick standard the supreme court held that there was sufficient evidence to submit the case to the jury on the question of defendant’s willful and wanton misconduct, and sustained the appellate court’s reversal of a directed verdict for the defendant.

Two subsequent appellate court cases have been decided in reliance on Larson. In Enloe v. Kirkwood (1970), 120 Ill.App.2d 117, 256 N.E.2d 459, a guest passenger brought suit against the defendant driver for injuries sustained in a one-car accident in an occurrence strikingly similar to that in Larson. A witness testified that although the defendant’s car had been traveling in the right or outer lane of a four-lane divided highway at a speed substantially over the posted limit, immediately prior to leaving the pavement the defendant’s vehicle entered the inner lane in a movement described as if it were moving to the left to pass another vehicle. Defendant’s car went off the pavement from the left, or inner lane for a distance of 144 feet to a point 65 feet from the edge of the pavement. After citing Larson, the court held that in applying Pedrick, the trial court correctly denied defendant’s motion for a judgment notwithstanding the verdict, based upon the issue of defendant’s willful and wanton negligence.

Again, in Turner v. Ovall (1970), 132 Ill.App.2d 273, 264 N.E.2d 839, a guest passenger sued the estate of the decedent driver for injuries received in a one-vehicle accident. There were no eyewitnesses to the occurrence and no affirmative evidence was presented as to the decedent. A driver of an oncoming auto did testify that he observed the decedent’s vehicle flip over and become airborne for 30 to 35 feet, eventually landing in a median ship ravine after all the occupants had been thrown out. Evidence was presented that the car left the pavement of the four-lane divided highway and entered the right shoulder for a distance of 150 feet, and that it then returned to the pavement and proceeded 75 feet diagonally across the highway where it struck the left lane guardrail and flew into the air. In sustaining the trial court in its denial of . defendant’s motion for a judgment notwithstanding the verdict, the appellate court stated that the evidence presented on the issue- of willful and wanton negligence, together with the proper inferences drawn from the circumstances, find evidentiary support within the rule of the Larson case.

The defendant has cited Vance v. Picken (1968), 93 Ill.App.2d 294, 235 N.E.2d 266, in support of his argument that there is a failure of proof as to the willful and wanton negligence of his decedent. We find this case not to be persuasive in that the same court later receded from its earlier decision and followed the Supreme Court holding in Larson. Turner v. Ovall, supra.

In the instant case, unlike either Larson or Turner, five eyewitnesses testified at trial as to decedent’s speed, three of whom estimated it to -be in excess of the posted limit. Two of the eyewitnesses testified that prior to the decedent’s vehicle entering the median strip it made a movement toward the left or inner lane, a factor of considerable import in Enloe v. Kirkwood, supra. Testimony was also presented that- the tires and brakes of decedent’s car were in proper operating condition at the time of the accident, and that there were no erratic movements of other vehicles or obstructions on the highway which could have influenced the decedent’s actions. On the basis of the evidence presented and the inferences which could reasonably be drawn by the jury, we cannot say that the evidence so overwhelmingly favors the defendant on this issue that no verdict other than one finding the decedent not guilty of willful and wanton negligence could ever stand.

The defendant’s assertion that there was insufficient evidence of the plaintiff’s freedom from contributory willful and wanton negligence to create a jury question concerning that issue is likewise not persuasive. In a suit alleging defendant’s willful and wanton negligence, the plaintiff’s freedom from contributory willful and wanton misconduct is an essential element which must be pleaded and proved. (Zank v. C.R.I. & P.R.R. Co. (1959), 17 Ill.2d 473, 161 N.E.2d 848; Valentine v. England (1955), 6 Ill.App.2d 275, 127 N.E.2d 473.) Defendant argues that no affirmative evidence was presented at trial as to plaintiff’s conduct at the time of the occurrence and that no evidence is of record as to the careful habits of the plaintiff when riding as a passenger in a vehicle being operated by another. However, it was held in Anderson v. Launer (1957), 13 Ill.App.2d 530, 142 N.E.2d 838, that the presumption in favor of the human instinct of self-preservation and the avoidance of danger was sufficient in and of itself to take the issue of a plaintiff’s freedom from contributory willful and wanton misconduct to the jury. We accordingly so hold. The trial court was correct in denying the defendant’s motion for a judgment notwithstanding the verdict upon the issue of plaintiff’s freedom from contributory willful and wanton negligence.

Defendant next contends that the trial court erred in excluding the testimony of his accident reconstruction expert witness, William Alroth. The trial court sustained an objection to the testimony and defendant made an offer of proof that the testimony of that witness would show that the decedent was traveling at the posted speed limit at the time her vehicle entered the median strip, that the decedent had attempted to regain control of the car after the wheels had left the pavement of the two eastboutid lanes, and that the vehicle did not fly over the telephone wires north of the highway. Defendant argues that since none of the eyewitnesses observed the individual conduct of either the plaintiff or the decedent and only described the path of defendant’s vehicle, Alroth’s testimony was needed by the jury to determine the meaning of the actions of the automobile and the cause of the accident. The defendant also argues that Alroth’s testimony was important to the defense in that it would contradict the testimony of the three sisters who testified for the plaintiff that' the decedent’s vehicle was traveling in excess of the posted speed limit and that it subsequently flew over the telephone wires north of the highway.

In Illinois, accident reconstruction testimony may not be used as a substitute for eyewitness testimony where the latter is available, nor may it be used in addition to eyewitness testimony unless it is necessary to rely upon knowledge and the application of principles of science beyond the ken of the average juror. (Plank v. Holman (1970), 46 Ill.2d 465, 264 N.E.2d 12; Payne v. Holes (1972), 5 Ill.App.3d 433, 283 N.E.2d 329.) In the instant case, five eyewitnesses testified as to the speed and path of decedent’s auto. A sixth witness, the investigating police officer, also testified as to tire path of the vehicle, based upon measurements which he had taken at the accident scene. Although none of the eyewitnesses had observed the actions of either the decedent or the plaintiff while inside the vehicle, this did not present questions for determination by the jurors which required scientific knowledge beyond that of typical jurors. These questions involved the driving actions of the decedent at the time of the accident, and a factual resolution of those questions did not necessitate expert evidence to supplement the eyewitness testimony which had been received. McGrath v. Rohde (1972), 53 Ill.2d 56, 289 N.E.2d 619.

The defendant’s additional argument that the expert testimony was admissible to contradict the prior testimony as to the vehicle’s speed and path of travel is an attempt to justify this testimony, not as an aid to the determination of a fact question beyond the scientific ken of the jury, but as a challenge to the accuracy of previous testimony. Accident reconstruction testimony is not admissible for the purpose of impeaching credible eyewitness testimony. (Payne v. Noles, supra.) We find no error in the exclusion of the accident reconstruction testimony.

Defendant’s final contention is that the trial court erred in instructing the jury as to the definition of willful and wanton conduct based upon Illinois law, whereas the Indiana law should have controlled the substantive issues in the case. The trial court refused Defendant’s Instruction No. 1 which was a modification of a definition of willful and wanton negligence contained in Mazza v. Kelly (1970), 147 Ind.App. 33, 258 N.E.2d 171, and which provided:

“When I use the expression ‘willful or wanton conduct’ I mean perverse conduct which is conscious and intentional and of such a nature that under the known existing conditions injury will probably result therefrom.”

The trial court gave Plaintiff’s Instruction No. 16, I.P.I. Civil 14.01, which provided:

“When I use the expression ‘willful or wanton conduct* I mean a course of action which shows an utter indifference to or conscious disregard for a person's own safety and the safety of others.”

At the time of the accident involved herein, both Illinois and Indiana barred recovery by a guest passenger against the host driver of a vehicle except in cases where the latter committed willful or wanton negligence. The question of what constitutes willful and wanton misconduct is one of substantive law and presented a conflict of law issue for the trial court.

Formerly, Illinois had followed the lex loci delicti doctrine and had mechanically applied to such issues the law of the state where the injuries occurred. In 1970, the Illinois Supreme Court adopted the “most significant contacts” rule as the standard to be applied to conflict of law issues arising in multi-state tort actions. (Ingersoll v. Klein (1970), 46 Ill.2d 42, 262 N.E.2d 593.) Under this rule the local law of the state where the injury occurred should determine the rights and liabilities of the parties unless Illinois has a more significant relationship with the occurrence and with the parties, in which case the law of Illinois should apply. In Ingersoll the court further held that the new standard would apply retroactively to those cases filed in reliance upon the lex loci delicti doctrine unless a retroactive application would result in hardship. In the instant case, both plaintiff and decedent were residents of Illinois traveling together in Indiana. When the present suit was filed the estate of the decedent was then pending in probate in an Illinois court, and the defendant was acting as administrator therein. Indiana’s only relationship was the fortuitous occurrence of the accident within its borders; it would appear to have no interest in this proceeding or occurrence other than in the possible violation of its traffic regulations. On the other hand, Illinois as the forum state and the domicile of all of the parties has a greater and superior interest in the administration of the estate of a deceased citizen, in the regulation of the driver-passenger relationship of its domiciled parties, and in the solution and disposition of the litigation between its residents. In considering the matters of governmental interest and policies and the other connecting factors, Illinois clearly has the more significant relationship with the parties and the occurrence than Indiana.

Defendant has urged, upon oral argument, that a retroactive application of the “most significant contacts” rule to the instant case would result in hardship because the Indiana definition of willful and wanton conduct is more restrictive than that of Illinois. The only benefit the defendant would have if the Indiana definition was applied would be as to the degree of proof required to establish willful and wanton conduct. In our opinion, this does not present the type of hardship referred to by the Supreme Court in Ingersoll which would prevent the retroactive application of the new standard. (Blazer v. Barrett (1973), 10 Ill.App.3d 837, 295 N.E.2d 89; cf. Cardin v. Cardin (1973), 14 Ill.App.3d 82, 302 N.E.2d 238.) Accordingly, the trial court correctly applied . Illinois law in defining willful and wanton conduct.

For the foregoing reasons the judgment of the circuit court is affirmed.

Affirmed.

McNAMARA, P. J., and McGLOON, J., concur.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
      In re Estate of Allen M. Kite—(Dennis S. Kite, Claimant-Appellant, v. Barbara L. Kite, Executor-Appellee.)
    (No. 58247;
    First District (3rd Division)
    May 2, 1974.

      Shaffer, Seelig, Haberman & Shapiro, of Chicago (Ellis Shaffer and Lewis R Shapiro, of counsel), for appellant.
    Dore & O’Toole, of Chicago (John J. O’Toole, of counsel), for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

This matter involves a claim filed in the circuit court of Cook County by Dennis Kite against his father’s estate to recover damages allegedly caused by the failure of his father to maintain in full force certain life insurance policies wherein the claimant was named beneficiary. After a hearing, the trial court granted the estate’s motion to dismiss the claim, and claimant appeals.

The decedent, Allen M. Kite, and June H. Kite were married in 1944. Their son, the claimant, was born in 1945.

On June 29, 1950, a decree of divorce was awarded in Cook County to June Kite against Allen Kite. In addition to providing for alimony, child support and other property rights, the decree provided in pertinent part as follows:

“That defendant (Allen M. Kite) shall pay the premiums necessary to keep in force three (3) life insurance policies previously issued on the life of the defendant, by the State Mutual Assurance Company of Worcester, Massachusetts, each of said policies being in the face amount of Five Thousand Dollars ($5,000.00), and the defendant shall name Dennis Sherman Kite as the primary and sole beneficiary in said policies.”

The decree further provided that on May 25, 1950, the parties had entered into a property settlement agreement. That agreement in pertinent part is as follows:

“First party (Allen M. Kite) agrees that Dennis Sherman Kite shall be named as the primary and sole beneficiary in the following life insurance policies, previously issued on the life of .first party, by the State Mutual Assurance Company of Worcester, Massachusetts, each of said policies being in the face amount of Five Thousand Dollars. ($5,000):
Policy No, 548,081 Ex;
Policy No. 559,983 Ex; and
Policy No. 568,799
First party further agrees to pay all premiums that may be due, or become due, to keep said policies in full force and effect, and agrees that he will not remove the name of the said child as beneficiary of said policies, without the written consent of second party (June H. Kite) first had and obtained.”

Thereafter, decedent never attempted to change the claimant as beneficiary, but did make loans from the insurance company on the three policies. He also failed to pay certain premiums on these policies. The result was that decedent had reduced paid-up insurance with the three companies at the time of his death, July 26, 1971. Instead of the $15,000 recited in the decree and property agreement, claimant received $4,132.93 as proceeds of the three policies.

However, in addition to the aforesaid $4,132.93, the claimant received the proceeds of six other insurance policies taken out by the decedent on his life and naming the claimant as beneficiary. Claimant received total proceeds in the amount of $16,171.30 on these six additional policies taken out by his father. As a result, claimant received total life insurance proceeds of $20,304.23 arising from his father’s death.

Claimant maintains on appeal that the loans against the three policies along with decedent’s failure to pay all of the premiums on the three policies prevented the three policies from remaining in full force and effect, therefore violating the terms of the divorce decree and property settlement agreement, and exposing the estate of decedent to liability for damages in the amount of the total deficiencies of the three policies, $10,867.07.

In interpreting the provisions of a divorce decree and property settlement agreement, the normal mies for the construction of contracts are applicable. (Vinci v. Vinci (1970), 131 Ill.App.2d 496, 266 N.E.2d 379.) We seek to give effect to the intention of the parties. (Brandel v. Brandel (1966), 69 Ill.App.2d 264, 216 N.E.2d 21.) The intentions of the parties must be determined from the language of the instrument itself, unless the instrument is incomplete or the language is ambiguous. (Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill.2d 105, 251 N.E.2d 242.) Where an ambiguity exists, the substance of the agreement, rather than the form, must control, Richheimer v. Richheimer (1972), 9 Ill.App.3d 376, 292 N.E.2d 190.

We observe initially that a literal reading of the divorce decree and property settlement agreement suggests that decedent complied with their terms. He maintained the claimant as his beneficiary. He paid sufficient premiums due to keep the policies in force. Neither document prevented the decedent from borrowing money on the policy. But more importantly than the literal reading of the decree and agreement, an examination of their contents reveals that the parents’ primary intention was that insurance proceeds of $15,000 would be available to the son at the death of his father. Although the three policies were enumerated, the actual dollar amount to be made available clearly was of principal importance to the parties. At the time of the father’s death, claimant expected, according to the terms of the decree and agreement, to receive insurance proceeds in the amount of $15,000. In fact, he received $20,304.23 in proceeds. Even if a violation of the decretal terms existed, claimant has not shown any damages resulting therefrom. Of course, if insurance proceeds in an amount less than $15,000 had been made available to claimant, he would have a proper claim against his father’s estate. Under the facts and circumstances of the present case, the trial court correctly dismissed his claim.

Cases cited by claimant, Sniader v. Sniader (1963), 40 Ill.App.2d 384, 188 N.E.2d 255, and Genung v. Hagemann (1968), 103 Ill.App.2d 409, 242 N.E.2d 790, are clearly distinguishable from the present case. In Sniader the evidence was undisputed that the husband was to pay a specific amount for the premiums involved in a recited number of years, and that the wife was to have ownership of the policy. The court held, therefore, that under such circumstances the decree would not permit the husband to make loans to pay the policy premiums. The case is also distinguishable factually from the instant case. In Genung the court held that a breach of contract by a decedent subjects his estate to a liability for damages. The legal proposition is sound, but even if a decretal violation is conceded in the present case, the claimant has failed to demonstrate any damages.

For the reasons stated, the order of the circuit court of Cook County dismissing claimant’s claim is affirmed.

Order affirmed.

McGLOON and MEJDA, JJ., concur.


author: Mr. JUSTICE McGLOON

text:
    Eleanor Mark Trippel, Plaintiff-Appellee, v. Eleanor Lott, Defendant-Appellant.
    (No. 58386;
    First District (3rd Division)
    May 2, 1974.

      Gates W. Clancy, of Geneva, for appellant.
    Albert F. Hofeld, of Chicago, for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is a personal injury action in which the plaintiff alleged that she was injured as a result of the defendant’s negligent operation of an automobile. After a jury trial the plaintiff was awarded judgment against the defendant in the amount of $56,000.

In this appeal the defendant raises the following issues: (1) whether the verdict is contrary to the manifest weight of the evidence; (2) whether the trial court abused its discretion in (a) suppressing a certain unsigned statement given by the plaintiff because of the defendant’s failure to comply with certain discovery orders, (b) failing to sustain defendant’s objection to certain comments in plaintiff’s closing argument, (c) failing to declare a mistrial because of a certain unresponsive answer of a witness, (d) entering an order barring inquiry into prior medical problems of the plaintiff, and (e) failing to give one of defendant’s submitted instructions.

We affirm.

The pertinent portions of the record on appeal are as follows. In October, 1968, the plaintiff filed a complaint alleging that due to an automobile accident caused by the defendant she had sustained injury to various parts of her body. In August, 1969, after the defendant had answered a Monier order of production was entered which required in part that each party was to produce, within 28 days, any statements given by a party to anyone other than their attorney or insurer. In May, 1972, over 2 years later, but still prior to trial, the defendant notified plaintiff that she had an unsigned four-page statement purportedly given by the plaintiff one day after the accident.

Immediately prior to trial the plaintiff moved to suppress this statement and all references to it during the trial, and this motion was granted by the trial judge. The plaintiff also moved, in limine, and the trial judge ordered that all direct or indirect testimonial references to any injuries suffered by the plaintiff before or after the date of accident which did not relate to the right knee and foot of the plaintiff and which were not supported by medical opinion as being a contributing cause for the present condition of the right leg, were to be excluded. The plaintiff filed an amended complaint dropping any allegation of injury other than to her right knee and foot.

At trial the defendant was called under section 60 of the Civil Practice Act and testified that she was involved in an auto accident on August 15, 1968, at approximately 7:30 P.M. She stated that she was driving her car eastbound on the 31st Street overpass over Route 294 in Cook County, Illinois. At this point on 31st Street the road is four lanes wide, two lanes in either direction separated by a concrete divider curb S inches high. She was driving in the outside, southern-most eastbound lane. It had been raining and the pavement on the overpass was wet. As she proceeded at approximately 30 to 35 miles per hour she suddenly hit something in the road. She did not know exactly what it was but she believed her right front wheel hit a hole in the pavement in tire right hand lane in which she was travelling. She estimated the depth of the hole to be 8 inches to 1 foot. When she hit the hole her car began to skid, the front end going to the right and the back going to the left. In an attempt to straighten the vehicle she turned to the left, or north, and the car went across the inside eastbound lane, the concrete divider strip, and both westbound lanes. When the car came to a stop it had crossed the roadway and rested with the rear half blocking the outside westbound lane¿ and the front half off the road on the shoulder of the westbound lanes. The car was perpendicular to 31st Street facing north.

She further testified that when her car stopped she saw the plaintiffs car coming toward her in the outside westbound lane, travelling at approximately 40 miles per hour. When she saw the car it was about 800 feet away travelling directly toward her. She made no effort to move her car off of the westbound lane. A few seconds later the plaintiffs car hit her car in the right side, passenger door.

The plaintiff testified that on the date of the accident she was driving west on 31st Street at a speed of about 30 to 35 miles per hour. When she approached the overpass she was driving in the northern-most, outside lane of the four-lane roadway. The plaintiff first noticed the defendant’s car when it was two or three car lengths in front of her. The defendant’s car was proceeding east, in the opposite direction, and was in the southern-most, outside lane of the four lane road. She further testified that she then suddenly saw defendant’s car coming at her over the divider in the center of the road. Defendant’s car was travelling in a northerly direction, going across the traffic lanes and was only about 20 feet in front of plaintiff’s car. The plaintiff “slammed on” her brakes but was unable to avoid hitting the defendant’s car in the passenger side. The -plaintiff was injured as a result of the collision and all the parties involved were taken to the hospital by ambulance.

Officer Ralph Rocco of the Cook County sheriff’s police testified that he was called to the scene of the accident and made a report. He arrived at the scene after the parties had been taken to the hospital but before the vehicles had been moved. He stated that in his investigation of the accident scene he found no holes in the road surface. He further stated that he proceeded to the hospital to complete his report. While there he testified he talked to the defendant’s husband, Mr. Lott. During cross and re-cross examination defendant’s counsel vigorously, tested the officer’s recollection of his investigation in an attempt to discredit his testimony. Plaintiff’s attorney then asked the officer how he could remember the fact he had a conversation with Mr. Lott, and the officer responded, “I -stated to him that Mrs. Lott was getting a ticket.” The defendant immediately objected and the trial court sustained the objection and directed the jury to disregard the comment. The trial court denied defendant’s motion for a mistrial with further instructions to the jury to disregard tire question and answer.

Other witnesses testified that on the date of the accident and the following day the road surface of the 31st Street overpass was under repair. Their testimony disclosed that during the day of August 15, 1968, a certain construction company, pursuant to a contract with the State of Illinois, removed certain temporary patching from the road surface preparatory to applying a permanent resurfacing on August 16. Upon ending their work on the afternoon of the 15th the crew did not post warning signs because they had no contractual obligation to do so and it was their policy not to use warning signs where the holes were no deeper than 2 inches.

In this regard, the only witness who testified that there were large holes on the road surface was the defendant herself. Witness Linger, a neighbor of the plaintiff, who observed the bridge on the morning of the accident, and witness Matechick, a State of Illinois road inspector, who inspected the surface of the bridge on May 8, 1968, both testified that no hole on the bridge was deeper than 2 inches. Mr. Lott, defendant’s husband, testified that he took pictures of the bridge surface on the morning of August 16 and he stated.the holes were from 1 to 6 inches deep. He did not see any that were 8 inches to 1 foot deep.

. During closing, arguments plaintiff’s counsel posed a rhetorical question to the jury. After defendant argued that plaintiff had been guilty of contributory negligence in causing the accident, plaintiffs counsel stated, “If they honestly and sincerely believe that, why don’t they counterclaim and sue her [plaintiff]?” The court overruled defendant’s objection and denied her motion for a mistrial, making the - comment, “Proper argument.”

Upon these facts the jury returned a verdict for plaintiff in the amount aforementioned. In this appeal the defendant asks for a reversal of the judgment of the trial court for a number of reasons among which is that the evidence does not support the verdict.

“A reviewing court will not disturb a verdict where the evidence is conflicting unless the verdict is clearly wrong or unless the court is satisfied that the verdict is against a manifest weight of evidence and that an opposite conclusion is clearly evident. A verdict will not be set aside merely because the jury could have found differently or because judges feel that other conclusions would be more reasonable.” (Franks v. North Shore Farms, Inc. (1969), 115 Ill.App.2d 57, 75, 253 N.E.2d 45.) To the same effect are Whitman v. Prescott (1967), 80 Ill.App.2d 49, 225 N.E.2d 384, and Jenkins v. Chicago & E.I. RR. Co. (1972), 5 Ill.App.3d 954, 284 N.E.2d 392.

We have thoroughly reviewed the entire record in this case and find that the verdict is clearly not contrary to the manifest weight of the evidence. Therefore, the verdict will not be disturbed.

The defendant also argues that the - trial court committed certain errors that were so prejudicial to her that the judgment of the trial court cannot stand. First, the defendant argues that the court erred in suppressing all references to the contents of a certain unsigned statement taken from plaintiff by defendant’s insurance investigator on the day after the accident. On plaintiff's motion the trial court suppressed the use of the statement as a sanction against the defendant because- the defendant had not produced the statement within the 28-day time limit on a Monier order that was entered early in the pleading stage of the case.

Supreme Court Rule 219(c) (Ill. Rev. Stat. 1969, ch. 110A, par. 219(c)) provides that if a party unreasonably refuses to comply with any provision of rules 201 through 218 (rules covering discovery and pretrial procedure), the court may enter such orders as are-just as a sanction for the parties noncompliance. Further, it had been held that the particular sanction imposed rests largely within the- sound discretion of the trial court (Garofalo v. General Motors Corp. (1968), 103 Ill.App.2d 389, 243 N.E.2d 691), and this discretion is broad and its exercise will not be interfered with unless it appears that it has been abused. Hearst v. City of Chicago (1973), 9 Ill.App.3d 1085, 293 N.E.2d 738.

• In support of her argument that the trial court abused its discretion by suppressing the statement in the instant case the defendant relies on four cases, all of which deal with a trial court’s decision to suppress or refusal to suppress the testimony of a non-party witness where that witness’ name had not been disclosed to the opposition under the provisions of a similar discovery order. (Buckler v. Sinclair Refining Co. (1966), 68 Ill.App.2d 283, 216 N.E.2d 14; Frozen Food Express v. Modern Truck Lines, Inc. (1967), 79 Ill.App.2d 84, 223 N.E.2d 275; Western Electric Co. v. Bauer Brothers Construction Co. (1971), 131 Ill.App.2d 1028, 268 N.E.2d 445; Johnson v. Chicago Transit Authority (1973), 11 Ill.App.3d 16, 295 N.E.2d 573.) However, these cases are essentially different from the situation in the instant case. In Buckler (supra), Frozen Food Express (supra) and Johnson (supra), all cases where the appellate court rejected the appellant’s demand for a new trial because of the trial court’s refusal to bar a witness’ testimony, the court specifically found that there was no evidence that the appellee’s nondisclosure was intentional and that appellant’s further investigation was at least part of the reason for their alleged surprise. In Western Electric the court found that the testimony of the undisclosed witness was the same as would have been adduced from a previously disclosed witness, and therefore, there was no surprise to the complaining party.

In the instant case the defendant did not deny that she was in possession of the unsigned statement from the very beginning of the case, and it appears that the trial court could have based its decision to suppress on the fact that defendant’s noncompliance was intentional or wilful.

Whether this court would have reached a conclusion different from that of the trial court is not controlling in such cases. (Wofford v. DeVore (1966), 73 Ill.App.2d 92, 98, 218 N.E.2d 649.) Based on the record before us, we cannot say that the trial court abused its discretion.

Further, we specifically reject the defendant’s suggestion that the plaintiff was under a duty to further enforce the original Monier order that she caused to be entered, and that her failure to do so until a short time prior to trial somehow excused the defendant from producing the statement until then. Although certain unique factual situations (Buckler and Johnson) have caused courts to hold that where counsel has prior independent knowledge of the existence of a certain witness any prejudice in allowing this otherwise undisclosed medical testimony was due, in part, to counsel’s failure to inquire further as to the significance of the doctor’s examination or the extent of plaintiff’s injuries, these cases do not bring down upon all litigants a general duty to further enforce Monier orders. Were we to adopt the defendant’s suggestion we would not only be responsible for further lengthening the already considerable delay in personal injury actions in this district, but we would do violence to the spirit and intent of the Monier decision itself (Monier v. Chamber lain (1966), 35 Ill.2d 351, 221 N.E.2d 410) and the Supreme Court rules that implement that holding.

Next, defendant contends that the trial court erred in refusing to sustain certain of her objections to plaintiffs closing argument. During closing argument, and allegedly in response to the defendant’s argument that plaintiff was contributorily negligent, the plaintiff rhetorically asked the jury why the defendant had not sued the plaintiff for her injuries if defendant believed the plaintiff to be negligent. The defendant’s objection was overruled and her motion for a mistrial denied, whereupon the trial judge commented, “Proper argument.” The defendant contends that this exchange was prejudicial.

Concerning the conduct of the trial court, we will adhere to the established principle that not every comment or statement made by a trial judge is reversible error, despite assertions of counsel to the contrary, unless prejudice is clearly shown. (Johnson v. Cunningham (1969), 104 Ill.App.2d 406, 412, 244 N.E.2d 205.) Although it is improper and ill advised for counsel to question why one was not sued (Downs v. Camp (1969), 113 Ill.App.2d 221, 230, 252 N.E.2d 46; Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill.2d 591, 294 N.E.2d 689), such comment does not necessarily produce reversible error. Gatto v. Curtis (1972), 6 Ill.App.3d 714, 735, 286 N.E.2d 541.

In the instant case we believe that plaintiffs counsel’s statement to the jury was improper and that the court erred in not sustaining the defendant’s objection. However, we do not believe that the comment constituted reversible error. The attitude and demeanor of counsel and the general atmosphere of the trial are observed by the trial court and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during closing argument, and unless clearly an abuse of discretion its ruling should be upheld. (Elizer v. Louisville & N. RR. Co. (1970), 128 Ill.App.2d 249, 254, 261 N.E.2d 827.) We have considered all the contentions of counsel in regard to this issue and studied the record in this regard and reject the defendant’s contention that she was deprived of a fair trial by any statement of counsel or the court. We find no reversible error in the closing argument.

Next, the defendant argues that the trial court erred in not declaring a mistrial based on the allegedly prejudicial response of witness Rocco. During examination by the plaintiff and in response to the question as to how he remembered he had a conversation with the defendant’s husband, Officer Rocco stated that he told Mr. Lott that Mrs. Lott was getting a ticket. The defendant immediately objected and her objection was sustained. Further, the jury was twice advised to disregard the answer. After argument outside the presence of the jury on defendant’s motion for a mistrial, her motion was denied. The defendant now argues that the denial of the motion was reversible error. We cannot agree.

The trial court struck the testimony and instructed the jury to disregard it. In this case we believe that this action cured the alleged error. (Scully v. Otis Elevator Co. (1971), 2 Ill.App.3d 185, 275 N.E.2d 905; Hall v. Chicago & N.W. Ry. Co. (1955), 5 Ill.2d 135, 151, 125 N.E.2d 77.) For this reason there was no error in the denial of defendant’s motion.

Next, the defendant contends that the trial court erred in entering and enforcing an order in limine barring inquiry into any prior medical problems of the plaintiff not related to her right knee and foot injury allegedly caused by the accident. As a result of this order fire plaintiff amended her complaint dropping all allegations as to injuries from the accident other than to the right knee and foot. At trial the defendant attempted to introduce certain evidence as to a prior condition of plaintiff’s hands that may have affected her driving ability on the day of the accident. The court sustained the plaintiff’s objection commenting that this alleged condition of the hands was “so far removed and so foreign to anything involved in this case that it is just absolute conjecture.”

The admission of evidence rests largely in the discretion of the trial court and its decision should be reversed only when such discretion has been clearly abused. (Department of Public Works & Buildings v. Dalessio (1968), 101 Ill.App.2d 187, 198, 242 N.E.2d 324.) While it is true that physical defects of the driver of an automobile may, in some cases, be considered in determining the question of liability (Bensman v. Reed (1939), 299 Ill.App. 531, 20 N.E.2d 910), it is also true that courts may reject evidence which it feels is of little probative value because of its remoteness, uncertainty or conjective nature. (Hagerman v. National Food Stores, Inc. (1972), 5 Ill.App.3d 439, 283 N.E.2d 321.) The record does not disclose any abuse of the trial court’s discretion in rejecting- this evidence.

Finally, the defendant argues that the court erred in refusing to give her offered instruction No. 18 which read: “The State of Illinois Highway Department has a duty to use ordinary care to maintain streets in a reasonably safe condition.” The defendant cites no authority for her position but argues that in view of the fact that the court gave instruction No. 11, which stated that the conduct of some person other than the defendant constituting the sole proximate cause of the injury -justified a verdict for defendant, the court should also have given her instruction No. 18.

Unless it appears that the rights of the complaining party have in some way been prejudiced by the giving or failure to give instructions the case will not be reversed on such ground alone. (Campbell v. Ragel (1955), 7 Ill.App.2d 301, 129 N.E.2d 451.) We find no prejudice to the defendant in the instant case. Instruction No. 11 stated that a verdict should be for the defendant if some third party’s conduct was the sole proximate cause of injury to the plaintiff.

We have reviewed the entire record in this case and conclude that none of the rulings considered above, or all of them combined, were so unfair or prejudicial to the defendant as to require reversal of the judgment of the trial court. The following quotation is particularly relevant to cases such as the instant case.

“The ultimate question here is not whether the trial was scrupulously free from error, but whether any error occurred which operated to the prejudice of the defendant or unduly affected the outcome below. Considering the evidence which supports the jury’s verdict, as well as the law applicable to the alleged trial errors raised here, it is our conclusion that there is no error which would justify a reversal in this case.” Nelson v. Union Wire Rope Corp. (1964), 31 Ill.2d 69, 118, 199 N.E.2d 769.

For these reasons the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

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


author: PER CURIAM.

text:
    Harry Robbins, d/b/a Robbins Sporting Goods & Ski Shop, PlaintiffAppellee, v. Seay & Thomas, Inc., as agents for Benjamin Grais et al., Executors of the Estate of Ruben Grais, Deceased, Defendants-Appellants.
    (No. 59542;
    First District (3rd Division)
    May 2, 1974.

      John C. Kiely, of Chicago (Donald G. Newman, of counsel), for appellants.
    Claude B. Kahn, of Chicago, for appellee.
   PER CURIAM.

DEMPSEY, J., took no part.


author: Mr. PRESIDING JUSTICE McNAMARA.

text:
    Lee V. Olenz, Plaintiff-Appellant, v. Patrick J. Cleary et al., Defendants-Appellees.
    (No. 59577;
    First District (3rd Division)
    May 2, 1974.

      Rehearing denied May 28, 1974.

      Lee V. Olenz, pro se.

    William J. Scott, Attorney General, of Chicago (Jerry E. Felsenthal, Assistant Attorney General, of counsel), for appellees.
   Opinion by

Mr. PRESIDING JUSTICE McNAMARA.


author: Mr. JUSTICE DRUCKER

text:
    Frank Frangos, d/b/a F&F Restaurant, Plaintiff, v. United States Fidelity & Guaranty Company et al., Defendants—(United States Fidelity & Guaranty Company, Third-Party Plaintiff-Appellee, v. North Suburban Inc., Third-Party Defendant-Appellant.)
    (No. 58168;
    First District (5th Division)
    May 3, 1974.

      McKinley, Price & Fako, of Chicago (Edwin A. Strugala, of counsel), for third-party defendant-appellant.
    Clausen, Hirsh, Miller & Gorman, of Chicago (Frank L. Schneider, James T. Ferrini, and William N. Sneckenberg, of counsel), for third-party plaintiff-appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

This appeal is from a judgment entered in favor of United States Fidelity & Guaranty Company, counter-plaintiff (hereinafter plaintiff) and against North Suburban Inc., counter-defendant (hereinafter defendant), the agent of plaintiff. It is contended on appeal that plaintiff failed in its burden of proving that the negligent omissions of defendant caused its liability under a policy of fire insurance.

In 1968 Frank Frangos bought the M & M Restaurant located at 349 North Clark Street in Chicago, renamed it the F & F Restaurant and, approximately 18 months later, moved the business to 415 North Clark.

A fire insurance policy written by plaintiff in the amount of $7500 and held by the former owner was assigned to Frangos when he acquired the business. The policy provided in its “Description and Location of Property Covered” that coverage was afforded:

“On contents of the three (3) story brick, sprinklered, mercantile building, occupied as a restaurant and
SITUATED:
349 North Clark Street
Chicago, Illinois”

That portion of the policy dealing with tire warranty of description and location states:

“IN CONSIDERATION * * * this Company * * * does insure the insured * * * against all DIRECT LOSS BY FIRE * * * to the property described herein while located or contained as described in this policy * * * but not elsewhere.”

Attached to the policy was a “sprinkler” endorsement which provided:

“This policy is being written at a rate based on the protection of the premises by the sprinkler system, it is a condition of this policy that, insofar as the sprinkler system and water supply therefor are under the control of the Insured, due diligence shall be used by the Insured to maintain them in complete working order, and that no change shall be made in said system or in the water supply therefor unless immediate notification is given to the Rating Bureau.”

On December 29, 1969, the restaurant was destroyed by fire. Frangos sued plaintiff on the insurance policy alleging that, through his broker, he had notified plaintiff of the relocation of the business, and that as a consequence thereof coverage was extended to the new premises. In its answer plaintiff denied having received notice and filed a third-party complaint for indemnity against defendant, its agent, alleging that if defendant received notice of the change of location, it breached its obligation to transmit this information to the insurer and thereby plaintiff was denied the right to decide “whether or not to extend coverage to a new location.” On the original claim a jury returned a verdict in the amount of $8379.94 (the amount claimed under the policy plus interest and costs) in favor of Frangos. Thereafter the trial court granted plaintiff’s motion for judgment against defendant in the identical amount of $8379.94.

At trial it was adduced that in late September 1969, shortly after Frangos moved the restaurant to the new location, he called his insurance broker, Earl Hallman, who met with him at 415 North Clark.

Hall testified that he immediately saw that the new location, which did not have a sprinkler system, presented a “different type of risk.” A restaurant “should have sprinklers * * * for an insurance company to insure them.” He immediately called Merton Berman, the president of defendant, advised him of the change of location and the fact that the new building did not have sprinklers and requested an inspection. He was informed by Berman that it would take at least 30 days before the building could be inspected. On October 3, 1989, he sent a written memo to defendant, again drawing its attention to the change of location. He contacted defendant a third time on this matter at “the end of Ocober or beginning of November.”

Hallman wanted an inspection to be made on the property as soon as possible “to establish whether the policy could continue in force or it would be terminated or that the premium would increase because of the circumstances of the risk.” With regard to the “sprinkler” endorsement it was his belief that it was “a provision that’s put on a policy only where there’s a sprinkler system in operation. * * * A building not having a sprinkler would not be eligible for that particular form.” Based on his experience, it was Hallman’s opinion that the restaurant at the new location might still be insurable under the old policy “if * * * [it] passed an inspection in all other respects.”

Other testimony adduced at trial tended to corroborate that given by Hallman on the question of whether he informed defendant of the fact that the F & F Restaurant had been moved to a new location.

Berman testified that restaurant fire insurance was extremely difficult to place. Due to the high loss risk insofar as “making endorsements on policies issued on restaúranos]” was concerned, it was his agency’s practice in 1969 “not to issue endorsements but [rather] to refer to the company.”

OPINION

Defendant does not contest the finding made below that it had knowledge of the restaurant’s new location and consequently breached its fiduciary duty to plaintiff by failing to inform the insurer of a material change in risk. Rather, defendant argues that plaintiff failed to meet its burden of proving that its damages resulted from the wrongful omissions of its agent. Specifically, defendant contends that this burden included a showing that, if properly notified, plaintiff would not have written the policy.

A review of the record reveals that restaurants, apparently even those with sprinkler systems, have difficulty securing fire insurance. As defendant readily admits, the change of location of the F & F Restaurant involved a substantial change in risk to the insurer since the building at 415 North Clark was not equipped with sprinklers. The insurance policy here in question expressly limited coverage to the “sprinklered” building situated at 349 North Clark, and plaintiff’s reliance on the importance of such safety devices was clearly manifested by the sprinkler endorsement hereinabove reproduced.

Defendant breached its duty to plaintiff by failing to notify it of the change of location and thus denied it the opportunity to decide whether it would extend coverage on the substantially altered risk. By its inaction defendant bound plaintiff to an extension of coverage which it had no opportunity to assume or reject. By so subjecting its principal to liability, defendant became liable to it for the resultant loss. Restatement (Second), of Agency, section 401; cf. Bank of Antigo v. Union Trust Co., 149 Ill. 343, 36 N.E. 1029; Dazey v. Roleau, 111 Ill.App. 367; Spalding v. Heideman, 96 Ill.App. 405; Germania Fire Insurance Co. v. Harraden, 90 Ill.App. 250.

We further find that plaintiff having proven the existence of a breach by defendant and its resulting liability, the burden was then shifted to defendant to prove that even absent its negligent omissions the loss still would have occurred. (Cf. Bank of British North America v. Cooper, 137 U.S. 473.) Defendant has argued that it had, in fact, met this burden. Specifically, it points to the testimony of Hallman to the effect that even without sprinklers plaintiff might have extended coverage albeit for a higher premium. However, Hallman had previously testified to the importance of sprinkler systems in determining whether a fire insurance policy would be written, and that such coverage would be extended to Frangos if “the restaurant at the new location passed an inspection in all other respects.” Of course, plaintiff, as noted above, was precluded from making such an inspection.

For the foregoing reasons the judgment is affirmed.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.