author: Mr. PRESIDING JUSTICE McNAMARA Mr. PRESIDING JUSTICE McNAMARA

text:
    Francine Klingman, Plaintiff-Appellee, v. Melvin E. Levinson, Defendant-Appellant.
    (No. 59660;
    First District (3rd Division)
    July 3, 1974.

      Supplemental opinion on denial of rehearing September 5, 1974.

      Melvin E. Levinson, pro se.

    Samuel E. Hirsch, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Melvin E. Levinson, appeals from an order of the circuit court of Cook County adjudging him guilty of contempt of court and sentencing him to 60 days in jail. Defendant initially contends that the trial court erred in holding him in contempt since he had purged himself of any contemptuous conduct. He argues in the alternative that the court erred, in a civil contempt proceeding, in ordering him to serve a definite term in jail without the right of purgation.

The present proceedings have developed as the aftermath of a decision by this court involving a case between the same parties. In Klingman v. Levinson (1972), 9 Ill.App.3d 179, 292 N.E.2d 111, plaintiff, as settlor of a trust, had filed suit seeking an accounting and turnover of the trust assets by the defendant, the trustee. The trial court entered a pre-trial order directing defendant to file an accounting and to turn over the trust res to the Harris Trust and Savings Bank of Chicago. The bank was to hold the property in escrow during the pendency of the litigation. When defendant refused to comply, the court held in contempt and ordered him imprisoned until he complied with the order. On appeal, we affirmed the trial court’s orders.

On July 11, 1973, defendant filed a verified petition stating that he would comply with the court’s orders. He provided therein a brief history of the investments he had made as trustee, and requested 30 days to file a verified accounting. He also alleged that he had tendered the trust assets to the named escrowee bank but that the bank had refused to accept them. Accordingly, he requested the trial court to vacate the order of contempt and quash the commitment order on the ground that his actions constituted a purgation of his contempt. A hearing was set on the petition for July 13. However, on July 12, on plaintiffs motion, the court, without notice to defendant of his attorney, issued a capias. On July 18, 1973, the trial judge issued the following order:

“THIS MATTER coming on to be heard upon the Petition of defendant, MELVIN E. LEVINSON, to vacate the orders of contempt entered herein, and to quash the order of attachment heretofore issued, good and proper notice having been served upon the attorneys for all of the parties herein, the defendant MELVIN E. LEVINSON having surrendered to the Sheriff of Cook County, and before the Court, the matter being presented to the Court, and the Court upon consideration thereof,
IT IS HEREBY ordered that defendant’s Petition to discharge defendant from contempt * * * is denied;
IT IS FURTHER ORDERED that the defendant MELVIN E. LEVINSON is sentenced to sixty (60) days in the County Jail, Cook County, Illinois, for contempt of this Court, exception to be stayed for a period of thirty (30) days, for the purpose of in hospital psychiatric treatment; * *

The record does not contain a report of proceedings for July 18, 1973.

On August 17, defendant’s counsel appeared before the trial court and moved to vacate the order of July 18. It was ascertained that at this time defendant was receiving the in-hospital treatment contemplated by the July 18th order. After being assured that 30 days had not elapsed since the entry of the order, the trial court appeared willing to conduct a hearing on defendant’s motion. However, plaintiffs counsel interjected that plaintiff had filed a notice of appeal of the July 18 order and hence the trial court no longer had jurisdiction to consider defendant’s motion to vacate. Plaintiff’s counsel stated that the basis of the appeal was that the order of July 18, sentencing defendant to 60 days imprisonment, vacated an earlier order committing defendant to jail for 6 months for contempt, and that the reduction in the sentence amounted to an abuse of the court’s discretion. The trial court ruled that plaintiff s filing of a notice of appeal deprived it of jurisdiction to consider defendant’s motion to vacate. Defendant subsequently filed this appeal.

We initially observed that the record fails to reflect the existence of any order of the trial court sentencing defendant to 6 months in jail for contempt. The only order of commitment is that of July 18, sentencing him to 60 days.

We next point out that plaintiff has not filed a brief, abstract, or appearance in this court either in relation to her own or defendant’s appeal. Not only do such actions constitute an abandonment of her own appeal but they also empower this court to reverse the judgment of the circuit court pro forma. (See Matyskiel v. Bernat (1967), 85 Ill.App.2d 175, 228 N.E.2d 746.) Appellee’s failure to file a brief does not foreclose the exercise of our discretion in considering the case on the merits. Daley v. Richardson (1968), 103 Ill.App.2d 383, 243 N.E.2d 685.

In our judgment, the most equitable manner to dispose of the present controversy involves neither a pro forma reversal nor a decision on the merits of the issues posed by defendant. We believe that the prime issue is the correctness of the trial court’s decision on August 17 that its jurisdiction to consider defendant’s motion to vacate had been abated by the plaintiff’s filing of a notice of appeal.

The trial court’s jurisdiction over a cause will generally abate upon the passage of 30 days after the entry of a final order or upon the proper filing of a notice of appeal within the 30-day period. Where an appeal is predicated upon an order or judgment that has no basis in the record, the appeal will be dismissed. Gilson v. Gaerdner (1920), 295 Ill. 337, 129 N.E. 76; Eaton v. Shields (1959), 21 Ill.App.2d 126, 157 N.E.2d 708.

As we have indicated, this record does not reveal that the trial court ever sentenced defendant to 6 months in jail for contempt. Consequently, the plaintiff’s filing of her notice of appeal has absolutely no basis in the record, and could not operate to deprive the trial court of jurisdiction to consider defendant’s motion to vacate the order of July 18. Indeed, plaintiff’s inaction in this court appears to be recognition that her notice of appeal concerned an order not reflected in the record.

Since the trial judge indicated a willingness to conduct a hearing on defendant’s motion and since, as we have found, the court had jurisdiction to consider the motion, the appropriate relief is to remand the cause to the trial court for a full hearing on defendant’s motion to vacate. Such a hearing cannot but clear up the confusion surrounding the orders entered.

For the above reasons, the order of the circuit court of Cook County denying defendant’s motion to vacate the order of July 18 is reversed, and the cause is remanded for further proceedings not inconsistent with the holdings of this opinion.

Reversed and remanded.

DEMPSEY and MEJDA, JJ., concur.

SUPPLEMENTAL OPINION

Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Although plaintiff had not filed an appearance or answering brief in this matter, her counsel has filed a petition for rehearing. In that petition, he maintains that we overlooked our earlier decision dealing with the same parties and, in part, with the same issues. (Klingman v. Levinson (1972), 9 Ill.App.3d 179, 292 N.E.2d 111.) Counsel argues that in tire earlier case defendant appealed from an order sentencing him to 6 months in jail for contempt, and that therefore our present holding is incorrect.

Counsel’s claim is unsupported by the record. The record in the earlier appeal clearly reveals that defendant appealed from an order holding him in contempt and imposing the following punishment:

“It is ordered that the defendant, Melvin E. Levinson, be and he is hereby committed to the County Jail of Cook County until such time as he shall purge himself of such contempt by complying with the aforesaid orders of July 7, 1970 and August 5, 1970.”

An examination of the entire record fails to disclose any order of the trial court which sentenced defendant to 6 months in jail. As a result, plaintiff’s filing of her notice of appeal from a non-existent order had no basis in the record, and did not operate to deprive the trial court of jurisdiction to consider defendant’s motion to vacate the order of July 18, 1973.

Consequently, we adhere to our holding, and the cause is remanded for further proceedings not inconsistent with the holdings of this opinion.

DEMPSEY and MEJDA, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harry Manushaw, Plaintiff-Appellee, v. Checker Taxi Company, Inc., et al., Defendant-Appellant.
    (No. 59880;
    First District (5th Division)
    August 9, 1974.

      Jesmer and Harris, of Chicago (Robert Jesmer and Marvin Lanzel, of counsel), for appellant.
    Jacobs, Lieberman and Aling, of Chicago (Eugene Lieberman, of counsel), for appellee.
   PER CURIAM.


text:
    Richard J. Daley, Mayor and Local Liquor Control Commissioner of the City of Chicago, Plaintiff-Appellee, v. Harland E. Ferguson et al., Defendants-Appellants.
    (No. 59183;
    First District (5th Division)
    August 9, 1974.

      Daniel D. Mangiamele, of Chicago, for appellants.
    Richard L. Curry, Corporation Counsel, of Chicago (Daniel Pascale and Ann Acker, Assistant Corporation Counsel, of counsel), for appellee.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
      In re Sandra Sciara, Respondent—(The People of the State of Illinois, Petitioner-Appellee, v. Sandra Sciara, Respondent-Appellant.)
    (No. 59585;
    First District (5th Division)
    August 9, 1974.

      James J. Doherty, Public Defender, of Chicago (Suzanne M. Xinos, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal arises from an order finding respondent in need of mental treatment and placing her in the care and custody of her husband for 1 year, with authority to commit her to the Chicago Lake Shore Hospital.

On appeal, respondent contends (I) the standard of proof for civil commitment should have been proof beyond a reasonable doubt, or clear and convincing proof, and that under either of these standards, the evidence was insufficient to establish that she was a person in need of mental treatment; and (2) she was denied her right to a jury trial.

This matter began with the filing of a petition by respondent’s husband for her hospitalization, which was supported by certificates of need for hospitalization by two doctors. At the hearing on the petition, the public defender, appointed to represent respondent, informed the court, “We are ready for hearing, Your Honor. Jury is waived.” Thereupon, a psychiatrist, Dr. Dushkin, testified he had examined respondent several times in the past and found “she presents all of the symptoms of a severe schizophrenic, paranoid type.” He also testified she was “psychotic, delusional, hallucinatory, autistic, and unpredictable in her ability to care for herself or her children.” She had delusions that “if she were to be touched by individuals she would dissolve into nothing or die and that all meat is representative of death, not to be eaten, not only by herself or by her children.” He stated her hallucinations were manifested by the fact that before answering questions “she would look to the side and always to the same area and then either answer or refuse to answer as if she was being warned. When he inquired whether she was being warned not to answer, she “smiled a little bit in a knowingly fashion.” The doctor stated she demonstrated her autism (thinking based on wishes rather than on reality) by “her feeling that nothing actually that was happening really meant anything, that she should be able to be permitted to leave the hospital and go into a full life, that if her husband were to come back everything would be nice and happy.”

According to the witness, her unpredictability with reference to the care of herself and her children was indicated by her inability to handle her affairs at home or to take care of herself in the hospital. He admitted that his opinion concerning her inability to care for her children was based on a report by her pediatrician, but that his opinion that she could not care for herself was based on his own observation of her. He also admitted that she was not a violent person and was not a threat to others, other than to her child and then only because of her inability to care for said child. He admitted also that his opinion that she could not take care of her affairs at home was based on the fact that others described her as “not too good of a housekeeper”, and on her pediatrician’s report that “her infant was not doing or thriving as well as he should.”

Dr. J. Herbert Maltz did not testify but stated in a certificate of need for hospitalization, that “she is withdrawn, has difficulty in responding to questions, has some bizarre ideation (about eating meat or having rat poison on her floor) at times she smiles (apparently in response to some internal stimuli) unable to adequately care for herself.”

The husband of respondent testified they had been separated for 6 months and he petitioned for her hospitalization because “she seemed to me at that time to be in a deep need of help.” He based this belief on the fact that their 18-month-old boy had his chin split open and a bum on his leg, had recently lost a little over a pound in weight and was being fed bread, rice and beans instead of a “normal balanced diet” and was being neglected by respondent “but not like she wanted to hurt him or anything like that” but that “nine times out of ten he’d be naked on the floor.” He stated that the older child, 6 years of age, was allowed to play outside as late as 10 P.M. and that respondent was not giving milk to her children. He also stated that respondent told him she heard voices which told her there was rat poison on the floor and that she said on one occasion, “We are tinning into cannibals and we are going to start eating one another” and on another occasion told him that meat would kill him. He testified that he worried about her when she was on the street because “she gets so wrapped up into these things that she doesn’t know what she is doing and doesn’t know what street she is on.” He stated that before her marriage she tried to slit her wrists and that she had been in hospitals on other occasions for mental problems, the last time being 9 months earlier for a few weeks. He stated her condition had “worsened” in the last 6 months and that he was presently living with the children and that he was giving respondent $15 a week for clothing and groceries and that he also “paid all the bills of every nature.” He admitted respondent never threatened to harm him.

Respondent testified she had not been helped during her previous hospitalization and during her current 3-week stay at Lake Shore Hospital she was being tormented. She does not eat meat and “they [the staff] insist that I have meat.” The staff seemed “a little bit demented.” Prior to her going to the hospital, the other child lived with her husband because she could not control him. The younger child, who lived with her until her hospital commitment, was on a diet of scalloped potatoes with cheese, brussel sprouts, broccoli and beans. When the younger child lost some weight, the pediatrician was unable to find anything wrong with him. She did not agree with Dr. Dushkin that she should go to the hospital because “I feel that they are infringing too much on my rights, my mind. I have a right to — I am not a dangerous person. I wanted to start painting or — I sketch and — I feel that — like they might destroy my mind with insulin shock treatments.” She further stated she could take care of herself and needed work, suggesting she could be a housekeeper, babysitter or a waitress at night. When asked if she heard “any other voices of persons or things that are not present in the room at the time,” she responded, “I did on one occasion close to a year ago.” She stated her only other hallucinatory experience since then was to see a ghost once in a while. She testified that the cut on the younger boy’s chin occurred when he tripped over raised linoleum in her apartment and that when the apartment was warm, she kept the younger child in a diaper and underwear.

During oral arguments, we were informed that respondent, after the adjudicatory hearing on November 29, 1972, was committed to the Lake Shore Hospital but released within 2 months, and that on June 7, 1974, in a separate proceeding brought on a petition for hospitalization by one Yvonne Stephens, respondent was found not in need of mental treatment. It is also noted that the order of November 29, 1972, expired by its own terms on November 29, 1973.

OPINION

The State first contends that this appeal should be dismissed because the case is now moot, and in support thereof points out (1) respondent was released from the hospital; (2) the adjudication order has expired by its own terms; and (3) respondent was found not in need of mental treatment on June 7, 1974.

It is true that when a case is moot, the appeal should be dismissed. (Wheeler v. Aetna Casualty & Surety Co., 57 Ill.2d 184, 311 N.E.2d 134.) However, it appears that two exceptions have developed to this rule; first, where a mootness ruling would eliminate an entire class of cases from appellate review (People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769) and second, where there are collateral legal consequences which survive the expiration of the order under review (Sibron v. New York, 392 U.S. 40, 20 L.Ed.2d 917, 88 S.Ct. 1889, In re Ballay (D.C. Cir. 1973), 482 F.2d 648).

We understand the argument of respondent to be that she comes within the collateral consequences exception. She refers us to the fact that she was involuntarily committed on two separate occasions and, while this appeal has been pending, another petition for her commitment was filed. It is argued by her counsel that, in the light of her delusions and the medical testimony indicating a likelihood of their persistence, the prospect of other commitment proceedings is not remote.

In opposing the application of the collateral consequences exception, the State invites our attention to the fact that the June 7, 1974, order found respondent not in need of mental treatment, and concludes “it appears almost certain that the record will have no adverse affect on future proceedings since, as stated earlier, die presumption of continuing sanity and competence operates to fully protect Mrs. Sciara.”

The State also argues that a finding of need of mental treatment or an admission to a hospital does not entail collateral legal consequences because section 9 — 11 of the Mental Health Code (Ill. Rev. Stat. 1973, ch. 91%, par. 9 — 11) explicitly provides that such a finding or admission to a hospital is not an adjudication of legal incompetency, does not deprive the person of his right to exercise all his civil rights, and does not create any presumption that such person is incompetent. The State further argues that since (1) diminution of employment opportunities does not fall within the collateral legal consequences category of Sibron, except to the extent that tire individual seeks public employment (Hewett v. State of North Carolina (4th Cir. 1969), 415 F.2d 1316); and (2) there is no statutory provision requiring custody to be denied to a parent who has been adjudicated in need of mental treatment, respondent is not affected by consequences non-legal in nature and, therefore, there is no reason to continue the litigation of the November 29, 1972, order.

We are of the belief, however, that the question of the application of the collateral consequences exception must be considered on a case-to-case basis. In considering whether it is appropriate here, we have noted that it was the testimony of Dr. Dushkin that he recommended deep-coma insulin therapy, and that if she didn’t receive it, “she’ll be a resident of institutions like this and possibly be discharged after 20 to 30 years in a backward situation”, and he stated further that even if she received this treatment, his prognosis was “still guarded, nothing guaranteed.” We note also that respondent’s husband testified, “This is a common thing with my wife, where she will show some progress and then backslide to where she was or even worse.” In addition, the record discloses that the petition filed in June, 1974, states “the patient has inappropriate affect, is delusional, and unable to care for herself.” Thus, in view of this recent petition and the prior commitments, it is conceivable that the condition of respondent is such that other petitions for her hospitalization may be filed and the reasoning of the court in Ballay then becomes significant. There, it was stated at page 651:

“There is yet another independent reason why the present appeal is not moot — the collateral consequences of being adjudged mentally ill remain to plague appellant. We recently had occasion to consider whether the standard applied in criminal cases, that a ‘case is moot only if it is shown that there is no possibility that any collateral legal consequence will be imposed on the basis of the challenged conviction,’ Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1900, 20 L.Ed2d 917 (1968) (emphasis added), is applicable to contested civil commitment adjudications. We answered in the affirmative relying upon the multitude of legal disabilities radiating from the label ‘mentally incompetent.’ [Citations]”

The Ballay court then listed some of the restrictions and limitations that may affect an individual adjudicated to be mentally incompetent and stated at page 652:

“Indeed, such an adjudication, while not always crippling is certainly always an ominous presence in any interaction between the individual and the legal system.”

We are aware that Ballay involved an adjudication of mental incompetency; whereas, here respondent was committed as a person in need of mental treatment. We are also aware that in Illinois one is presumed competent until the contrary is shown. People ex rel. Drury v. Catholic Home Bureau, 34 Ill.2d 84, 213 N.E.2d 507.

Nevertheless, in our consideration of the totality of the circumstances here, we believe that the adjudication might continue to plague respondent in some future proceeding and could also affect her adversely in other respects, including her efforts to obtain employment and, contrary to the contention of the State, in child custody proceedings which might be filed in the future. Therefore, we are of the opinion that the collateral consequences exception should be applied, and we will consider the merits of this appeal.

In this regard, respondent first contends that depriving one of her liberty by a mere preponderance of the evidence, the civil standard of proof, is repugnant to the fundamental principle of equal protection when a higher standard, proof beyond a reasonable doubt, is required in a criminal proceeding. While maintaining that commitment, should at least be based on clear and convincing evidence, she also argues that under either the clear and convincing standard or a preponderance of evidence requirement, the proof presented in the instant case is insufficient to establish that she was a person in need of mental treatment.

We note that respondent assumes, although there is no such indication in the record, that the trial court applied the preponderance of the evidence standard. In any event, we point out that this court in People v. Sarisone, 18 Ill.App.3d 315, 309 N.E.2d 733, applied the requirement of clear and convincing proof in a commitment proceeding. There, at page 326, the court stated:

“Where the issue involved is not the occurrence of an event, but the determination of an individual’s mental condition, the State must prove that the individual is in need of mental treatment by clear and convincing evidence. The facts upon which a medical opinion is based must be established by clear and convincing evidence, and the medical testimony upon which the decision to commit is based must be clear and convincing.”

We have examined the record here in the light of that standard, and initially we note that section 1 — 11 of the Mental Health Code (III. Rev. Stat. 1971, ch. 91V2, par. 1 — 11) requires that the petitioner first establish that respondent was a person afflicted with mental illness.® We interpret the phrase in this section “not including a person who is mentally retarded” to mean that such a person, as defined in section 1 — 12, is not to be considered a person in need of mental treatment within the meaning of section 1 — 11. It is our belief however that the Mental Health Code intends that a mentally retarded person, who also has a separate mental illness, could with the proof required by section 1 — 11 be found to be a person in need of mental treatment.

After establishing respondent was a person afflicted with mental illness, petitioner then was required to prove that, as a result of such mental illness (a) she was reasonably expected, at the time the determination was being made or within a reasonable time thereafter, to intentionally or unintentionally physically injure herself or other persons; or (b) she was unable to care for herself so as to guard herself from physical injury or to provide for her own physical needs.

It appears to us that the evidence clearly and convincingly established that respondent was afflicted with mental illness. Dr. Dushkin testified respondent “presents all of the symptoms of a severe schizophrenic, paranoid type”, and that “she is psychotic, delusional, hallucinatory, autistic and unpredictable in her ability to care for herself or her children.” Both he and Dr. Maltz, in their certificates of need for hospitalization, gave opinions that respondent was in need of mental treatment.

Concerning the requirement that petitioner establish respondent was reasonably expected to intentionally or unintentionally physically injure herself or others, we are of the opinion that the only testimony having relation thereto is clearly to the contrary.

We turn now to the remaining question of whether or not there was clear" and convincing proof of the requirement of the Code that, as a result of her mental illness, she was unable to care for herself so as to guard herself from physical injury or to provide for her own personal needs. The only testimony appearing in the record is in the testimony of Dr. Dushkin and respondent’s husband. The doctor testified “she is unpredictable in her ability to care for herself * # and he stated this opinion was based upon his observation of her at the hospital. Her husband testified, “I am a little afraid for her when she is on the street because she gets really so wrapped up into these things that she doesn't know what she is doing. She will be walking down the street and she doesn’t know what street she is on.” In addition, he testified that before they were married she had slit her wrists. We note that Dr. Dushkin was not asked and did not provide any facts which were the basis of his statement of unpredictability. Neither was any inquiry made to him as to the possible significance of respondent’s wrist slitting experience to her mental condition as he described it at the hearing. In any event, Dr. Dushkin gave no testimony indicating that respondent was unable to care for herself so as to guard herself from physical injury or that she was not able to attend to her own physical needs. The testimony of respondent’s husband that sometimes “she doesn’t know what street she is on” falls far short of the proof required to establish that she is unable to guard herself from physical injury. Furthermore, we have found no evidence in the record concerning any inability on her part to provide for her own physical needs.

For the reasons stated, it is our opinion that petitioner failed to clearly and convincingly establish that respondent was a person in need of mental treatment.

In view of this holding, it will not be necessary to consider the remaining contention of respondent.

The order finding respondent to be a person in need of mental care is reversed.

Reversed.

BARRETT and DRUCKER, JJ., concur.

       The pediatrician did not testify, and his report was not offered.

       “ “Person In Need of Mental Treatment’, when used in this Act, means any person afflicted with mental illness, not including a person who is mentally retarded, as defined in this Act, if that person, as a result of such mental illness, is reasonably expected at the time the determination is being made or within a reasonable time thereafter to intentionally or unintentionally physically injure himself or other persons, or is unable to care for himself so as to guard himself from physical injury or to provide for his own physical needs.”

       Section 1 — 11 of the Mental Health Code was amended effective January 1, 1973, after the trial of this matter, so that the words "mental illness”, where they appeared in that section, now appear as “mental disorder”.


author: Mr. JUSTICE LORENZ

text:
    Style Builders, Inc., Plaintiff-Appellant, v. Steven Fuernstahl et al., Defendants-Appellees.
    (No. 59462;
    First District (5th Division)
    August 9, 1974.
    Gerald R. Slutsky, of Chicago (Harry G. Fins and David M. Gerson, of counsel), for appellant.
    Donald W. Ford, of Wheaton, for appellees.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff appeals from an order vacating its judgment by confession contending that: (1) the judgment by confession was not void by being rendered in Cook County; (2) defendants’ motion to vacate failed to comply with section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72) and defendants were not diligent in presenting their motion; and (3) the validity of the judgment by confession had already been adjudicated.

On February 24, 1972, plaintiff filed a verified complaint in the Circuit Court of Cook County alleging that it owns a note containing a confession of judgment clause executed by defendants and further alleging that defendants owned property in Cook County. The note was attached to the complaint and judgment by confession was entered. Plaintiff initiated garnishment proceedings on this judgment against the Itasca State Bank, which is located in Du Page County, where defendants had a bank account.

On March 15, 1972, defendants appeared and filed a motion, together with a supporting affidavit, to vacate the judgment by confession. On April 14, 1972, they filed an amended motion to vacate alleging that they reside in Du Page County; that they had contracted with plaintiff for reconstruction work on their home; and that the contract, consummated in Du Page County, had no relationship to Cook County. They further alleged that plaintiff violated the statute regarding judgments by confession by filing its action in Cook County; that plaintiff had not performed on the contract and therefore there was no consideration for the note; and that plaintiff knowingly failed to inform them that they were signing a confession note. Defendants’ affidavit, filed with their motion, further indicated that plaintiff”s work on their home was stopped by order of the Village of Wood Dale because of numerous building code violations resulting from plaintiff’s work.

On April 28, 1972, plaintiff’s answer to defendants’ amended motion to vacate admitted that defendants reside in Du Page County; that their residence was the subject matter of the contract; and that the contract, consummated in Du Page County, had no relationship to Cook County. It further denied defendants’ other allegations and stated, citing May v. Chas. O. Larson Co., 304 Ill.App. 137, 26 N.E.2d 139, that the limitation regarding the county in which judgments may be confessed may be waived and was waived here; that since defendant Steven Fuernstahl is employed in Cook County he owns property there; and that defendants’ affidavit was defective in that it failed to allege a meritorious defense.

No reply to plaintiff’s answer was filed and the hearing on defendants’ motion was set for June 22, 1972. On that date, defendants not appearing, their motion was stricken.

On January 17, 1973, defendants filed a motion (1) “to set for hearing the Motion to Vacate the Judgment by Confession previously filed herein,” (2) for leave to amend that motion to one for opening the judgment, and (3) for leave to file an amended affidavit. The motion stated that defendants had been diligent in the matter. A signed and verified amended affidavit and copy of the Village of Wood Dale’s inspection report finding numerous building code violations resulting from plaintiff’s work were also filed. The motion sheet for January 17, 1973, indicates that the motion was “[t]o reset motion to vacate judgment by confession and file amended petition.” Plaintiff answered on the same day stating that defendants’ motion was “to set for hearing a prior Motion to Vacate * * that defendants did not appear for hearing on their previously set motion and that defendants were not diligent in the matter. The record indicates that the court “DENIED” a “motion to vacate the Judgment by Confession entered herein FEBRUARY 24, 1972 # # # » No appeal was taken from the court’s ruling. The record does not include any report of proceedings for January 17, 1973.

On June 15, 1973, defendants filed a motion to vacate the “ex parte” judgment entered against them without notice or, in the alternative, to allow them to file a counterclaim stating that the judgment was void because the transaction arose in Du Page County and because defendants reside in Du Page County; that defendants have a good and meritorious defense to the judgment; and that they were diligent in preserving their rights. Attached thereto was an unsigned and unverified but otherwise exact copy of the amended affidavit previously filed on January 17, 1973. Also attached to the motion was the Village of Wood Dale’s inspection report. Plaintiff filed lengthy objections to defendants’ motion raising essentially the same arguments it now raises on appeal.

A hearing was held on July 10, 1973, on the merits of defendants’ motion at which time defendants’ counsel admitted that he had failed to appear on June 22, 1972, and that Steven Fuernstahl was employed in Cook County. The court, in sustaining defendants’ motion of June 15, 1973, held that “the Judgment by Confession entered herein FEBRUARY 24, 1972, in the sum of FORTY ONE HUNDRED TWENTY TWO and 20/100 DOLLARS ($4122.20) be and the same is hereby vacated, set aside, and for naught esteemed”; granted defendants leave to file a counterclaim; and set that matter for hearing on August 3, 1973. Plaintiff appeals from this order.

OPINION

Plaintiff contends that the judgment by confession was not void by being brought in Cook County. Section 50(3) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 50(3)) provides:

“Any person for a debt bona fide due may confess judgment by himself or attorney duly authorized, without process. The application to confess judgment shall be made in the county in which the note or obligation was executed or in the county in which one or more of the defendants reside or in any county in which is located any property, real or personal, owned by any one or more of the defendants. A judgment entered by any court in any county other than those herein specified has no force or validity, anything in the power to confess to the contrary notwithstanding.” (Emphasis added.)

Plaintiff’s complaint alleged that defendants owned property in Cook County and defendants’ counsel admitted that Steven Fuemstahl was employed in Cook County. It is clear that the right to receive wages is a property right. (Mowrey v. Mowrey, 328 Ill.App. 92, 65 N.E.2d 234.) Thus, according to the statute, plaintiff was entitled to have judgment confessed in Cook County.

We need not deal with plaintiff’s other contentions. The order of the trial court vacating the judgment by confession is reversed and the cause remanded to the trial court with directions to reinstate the judgment.

Reversed and remanded with directions.

SULLIVAN, P. J., and DRUCKER, J., concur.


author: Mr. JUSTICE HALLETT

text:
    John L. Goulden et al., Plaintiffs-Appellants, v. Midwest Emery Freight System, Inc., et al., Defendants-Appellees.
    (Nos. 56046, 56339 cons.;
    First District (1st Division)
    August 5, 1974.

      James P. Chapman and Sandra W. Bixby, both of Chicago, for appellants.
    Gerrard and Gerrard, of Chicago (Allen S. Gerrard and Michael A. Gerrard, of counsel), for appellees.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The plaintiffs, John L. Goulden and his wife Florence, appeal from a judgment entered upon a directed verdict for the defendants in a personal injury action arising out of a rear-end truck collision which occurred in Porter County, Indiana. This appeal has been consolidated with the plaintiffs’ appeal from the denial of a petition for a new trial under section 72 of the Civil Practice Act. That petition urged that the judgment in favor of the defendants be vacated as it was based, at least in part, upon their amended and supplemental answer, which was filed after the close of all the evidence. The plaintiffs contend: 1) that the trial court improperly allowed the defendants to amend and supplement their answer after all the testimony had been concluded; 2) that the plaintiff John Goulden was not as a matter of law guilty of contributory negligence; and 3) that there was sufficient evidence for the jury to consider whether or not the defendants were guilty of negligence. We agree on contention 2 but not with 1 or 3 and therefore affirm.

At approximately 2:45 A.M. on April 2, 1965, the plaintiff John Goul-den (hereinafter called the plaintiff) was driving a tractor-trailer eastbound from Chicago on Indiana State Highway No. 6 in Porter County, Indiana. The highway had no artificial lighting, but the night was clear and the pavement dry. The incident in question took place on a section of this highway known as Beverly Hill, which is approximately Vá-mile long, in two stages with a dip between the two major inclines. At the base of the hill the highway widens from two to three lanes, one westbound and the other two moving in an easterly direction. The speed limit on this portion of the roadway is 50 m.p.h.

At the time of the occurrence the plaintiff was proceeding up Beverly Hill, when he was passed by a beverage hauler which was owned by Beverage Transport of Milwaukee, Wisconsin, and driven by Mr. Jess Soncek. After passing the plaintiff, the beverage truck returned to the outside lane and was passed by an automobile. Immediately behind the plaintiff and moving up on the inside lane was a tractor-trailer unit driven by Edward Pullins, who was also an eyewitness to the incident. The defendants’ vehicle, a tanker used to haul liquids, was ahead of Soncek’s vehicle in the outside lane. Soncek testified that he passed the plaintiff at the beginning of the three-lane stretch of highway at the foot of Beverly Hill. He then returned to the outside lane between the plaintiff and the defendant Pollitt (hereinafter called the defendant) to permit an automobile to pass him. He then eased out and passed the defendant’s vehicle and cleared it prior to the accident. He testified that the defendant was moving very slowly with his four-way warning flashers operating as well as the usual head and tail lights. Soncek also testified that when he passed the defendant, the defendant signaled with his headlights that the beverage hauler had cleared his vehicle. On cross-examination Mr. Soncek conceded that the vehicle could have been stopped.

Edward Pullins, the driver of the vehicle following the plaintiff, testified that he was driving his truck up the first stage of Beverly Hill, moving up on the preceding vehicles, when the accident occurred. He stated that he saw two freighters (Soncek and Goulden) ahead of him. As he gained on these vehicles, he was able to identify the defendant’s vehicle ahead of the other two, and he observed that it had its four-way flashers going. He stated that the vehicle was stopped, but he could not say for what period of time. He also testified that he had observed Soncek’s freighter make a wild swing to the left and pass the tanker immediately prior to the accident. He then saw the second freighter (the plaintiff), move toward the left, just getting its wheels on the lane marker, and then returning back to the middle of the outside lane. It was within seconds after the plaintiff pulled back that the collision occurred. On cross-examination Mr. Pullins, questioned about his statement that he was approximately 125 feet behind and to the left of the plaintiff at the time of the occurrence, testified that he could not remember telling a state trooper investigating the accident that he was about 600 feet behind the plaintiff at the time of the mishap.

The defendant driver testified that he was proceeding up the second stage of Beverly Hill, moving at a rate of 10 to 15 miles per hour and that his tanker was fully illuminated, including his four-way flashers. He observed the plaintiff’s vehicle coming up behind him and saw the plaintiff attempt to move over to the inside lane and then return back to the right hand one. He testified that there was nothing that he could do to avoid the impending collision, because he would have gone over an embankment had he attempted to move to the right, as there was no shoulder at that point on the road. He also testified that prior to being passed by the Soncek vehicle he had not observed the Werner truck behind him, so that he had no opportunity to take any precaution prior to the occurrence.

Plaintiff testified that he had been following Mr. Soncek’s truck up the first stage of the hill in the outside lane, when that vehicle made a sudden swing to the left into the passing lane, in order to pass the tanker. He then made an attempt to pass but pulled back, because he feared that the Puffins truck was approaching him from the rear too rapidly in the middle lane. The collision occurred almost immediately after his unsuccessful attempt to pass the tanker.

The Indiana state trooper, Carl Freeman, who investigated the incident, testified that when he arrived on the scene all the fights on the tanker were operative, including the flashers, and that there were no skid marks on the pavement. He also stated that when he later questioned the plaintiff in the hospital, the plaintiff told him that all he could remember about the accident was the fights suddenly appearing in front of his vehicle.

The first issue is whether the trial judge erred in permitting the defendant to file an amended and supplemental answer at the conclusion of all the testimony, which raised the defense that the plaintiff had been following the defendant’s truck within 300 feet in violation of an Indiana statute. Plaintiff contends that the amended answer took him by surprise and that he was unable adequately to show that the matters raised in the answer were inapplicable to the factual situation in this case. Section 46(1) of the Civil Practice Act (Ill. Rev. Stat. 1971, eh. 110, par. 46 (1)), provides:

“(1) At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand.”

This amendment, although made after the testimony was in, was made prior to the entry of the final judgment in this case, and we con-elude that the trial judge did not abuse his discretion in permitting the defendant to raise the defense of contributory negligence, particularly since it is clear from the record that the asserted defense actually came as no surprise to the plaintiff. We therefore find no merit in this contention and affirm the judgment on the section 72 petition.

The second issue is whether the plaintiff was guilty of contributory negligence as a matter of law.

In the amended answer, the defendant cites Burns Indiana Annotated Statutes, chapter 47-2019(b), IC 1971, 9-4-1-73(b) which reads as follows:

“The driver of any motor truck or motor truck drawing another vehicle or tractor-trailer combination, when traveling upon a roadway outside of a business or residence district * * * shall not follow within three hundred [300] feet of another motor truck, motor truck drawing another vehicle, or a tractor-trailer combination. The provisions of this subsection shall not be construed to prevent overtaking and passing, nor shall the same apply upon any lane especially designated for use by motor trucks.” (Emphasis added.)

At trial, however, the plaintiff testified that the right hand lane of the two eastbound lanes on that particular portion of the highway was designated for use by trucks and slow moving traffic. It is also clear from the material presented in the plaintiff’s section 72 petition that that section of the highway was so designated by the Indiana State Highway Commission, and the defendant has offered no evidence to the contrary. Therefore there is nothing in the record to support the conclusion that the plaintiff was contributorily negligent as a matter of law in following the preceding vehicle within 300 feet, in violation of said statute.

The foregoing conclusion, however, does not compel a reversal and leads us to the third issue, which is whether sufficient evidence was presented at trial to require the judge to submit the question of the defendant’s negligence to the jury. Both parties concede that the test to be applied to the evidence presented was outlined by our supreme court in the case of Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, where it is stated at 510, that:

“Rather, we believe the rule is best which in some form finds favor in other States heretofore indicated and which has, in part, been heretofore recognized in this State. In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelming favors movant that no contrary verdict based on that evidence could ever stand.”

The plaintiff urges that, if the testimony presented is viewed in the aspect most favorable to his case, there was more than sufficient evidence for the jury to have concluded that the defendant was guilty of negligence as alleged in the complaint. To support this contention the plaintiff cites portions of the Indiana statutes which pertain to the stopping of motor trucks along the traveled portion of a highway. Chapter 47-2120 of Burns Indiana Annotated Statutes reads in part:

“Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, # * #.”

And chapter 47-2236 of the same statutes further provides that:

“Whenever any motor truck, passenger bus, truck tractor, trailer, semitrailer or pole trailer is disabled upon the traveled portion of any highway or the shoulder thereof outside of any municipality at any time when lighted lamps are required on vehicles, the driver of such vehicle shall display the following warning devices upon the highway during the time the vehicle is so disabled on the highway except as provided in paragraph (b):
1. A lighted fusee, a lighted red electric lantern or a portable red emergency reflector shall be immediately placed at the traffic side of the vehicle in the direction of the nearest approaching traffic.
2. As soon thereafter as possible but in any event within the burning period of fusee (15 minutes), the driver shall place three (3) liquid burning flares (pot torches), or three (3) lighted red electric lanterns or three (3) portable red emergency reflectors on the traveled portion of the highway in the following order:
(I) One (1), approximately 100 feet from the disabled vehicle in the center of the lane occupied by such vehicle and toward traffic approaching in that lane.
(II) One (1), approximately 100 feet in the opposite direction from the disabled vehicle and in the center of the traffic lane occupied by such vehicle.”

Assuming that evidence that one or both of these statutes had been violated would be grounds for letting the jury pass on whether the defendant had been negligent, let us consider the testimony to see whether the plaintiffs assertions can be supported. Chapter 47-2120(a) requires in part that no vehicle shall be parked on the traveled portion of a highway where it is practicable to pull the vehicle off to the side of the roadway. In his testimony, defendant Pollitt emphatically stated that there was no shoulder on the roadway at the point where the accident occurred, and that even if he had tried to avoid the accident, he would have only fallen over an embankment. There is no testimony in the record to contradict this.

The second statute cited by the plaintiff concerns a requirement that if it is impossible to pull off the traveled portion of a highway, then the driver of the disabled vehicle shall as soon as possible illuminate the vehicle by means of flares and reflectors. Thus even if we draw the most favorable inferences from the testimony, that the defendant had come to a stop on the highway, there is no showing that it was possible for him to have pulled off the highway, as his testimony regarding the shoulder is undisputed. Also, even if he had come to a stop, there is certainly no evidence in the record that he had been stopped for a sufficient period of time to enable him to illuminate a disabled vehicle with flares or reflectors. If anything, the testimony might indicate that he may have come to a momentary stop and he had taken the immediate precaution of illuminating the emergency four-way flashers on his truck. We therefore conclude that, even if the most favorable inferences from the testimony are considered in the aspect most beneficial to the plaintiff, the evidence is not sufficient to support a finding that the defendant was guilty of negligence in the operation of his vehicle and that the court correctly directed the verdict for the defendant.

We therefore affirm both judgments.

Judgments affirmed.

EGAN, P. J., and GOLDBERG, J., concur.


author: Mr. JUSTICE DEMPSEY

text:
    Susan Gabosch, Plaintiff-Appellee, v. Howard Tullman et al., Defendants-Appellants.
    (No. 58409;
    First District (3rd Division)
    August 1, 1974.

      McKenna, Storer, Rose, White & Haskell, of Chicago (John C. Bartler and Robert S. Soderstrom, of counsel), for appellants.
    Fred Lambruschi and Herbert P. Veldenz, both of Chicago, for ap-pellee.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

Susan Gabosch was struck by an auto driven by Howard Tullman. She brought this personal injury action against Tullman and against Morton Weiss, the lessee, and Eastern Auto Leasing, the lessor and owner of the auto. Weiss and Eastern were dismissed from the case and the jury returned a verdict against Tullman, who appeals.

He contends that the trial court erred in denying his motions for directed verdicts and his motion for judgment notwithstanding the verdict. He also contends that a new trial should be granted because: the jury was improperly instructed on the statutory right-of-way of pedestrians at a crosswalk; the attorney for the plaintiff improperly questioned two defense witnesses, and the court made an incorrect comment about the evidence.

Miss Gabosch testified that about 11 P.M. on an evening in August 1967, after finishing her work at the Evanston Hospital, she walked toward Central Street, Evanston, with the intention of taking an elevated train home. The elevated station was located a block or two away on the south side of Central, an east and west street. Upon leaving the hospital grounds, she walked south on Girard Avenue, a street which ends at Central. When she got to the corner of Girard and Central, she crossed from the east to the west side of Girard and prepared to cross Central diagonally because the entrance to the station was west of the intersection. Before starting across, she looked in both directions for approaching cars. She saw the defendant’s car to the east about 200 feet or a quarter of a block away. She proceeded across Central without looking in the defendant’s direction again. Several hospital employees who had taken the same path were about 10 to 15 feet in front of her. When she was about 3 feet from the center of the street, she was struck by the defendant’s car, which she said she did not see or hear from the time she started to cross Central until she was struck. She was helped to the side of the street and was then driven to the Evanston Hospital by two policemen. She did not remember talking to any policemen after the accident.

On direct examination Miss Gabosch testified that when she was struck by the automobüe she befieved that she was still in the crosswalk. She was referring to a crosswalk across Central from the northwest corner of Girard. However, there is no marked crosswalk from the northwest corner. There is a marked crosswalk from the northeast corner of Girard, and there is one about 70 feet west of the northwest corner which extends to the entrance of the elevated station. On cross-examination the plaintiff said that she was hit when she was on the east edge of the latter crosswalk. The defense counsel then asked whether the angle at which she was crossing Central would bring her into the crosswalk leading to the station entrance. She replied that it would not and that she did not enter that crosswalk.

Tuffman testified that he was driving at about 30 miles per hour and that he was familiar with Central Street because he had driven on it often. He said that he saw the plaintiff step out into the street when she was between 50 to 100 feet ahead of him. He testified that he applied his brakes but could not stop before the left side of his car struck her.

Officer Mathew Rzepecki, who was called by the defense, testified that in investigating the accident, he talked to Tullman and to James Drish at the scene; that he measured the skid marks left by Tullman’s car and talked to the plaintiff at the Evanston Hospital right after the accident. He stated that he believed that the plaintiff told him at that time that she was not in a crosswalk at the time of the accident. When cross-examined by plaintiff’s counsel, he testified that he did not note the length of the skid marks in his accident report because the marks did not evidence speed.

He also stated during cross-examination that he wrote in his report that the accident occurred 50 feet west of Girard Avenue. He was asked whether he measured the distance from the west side of Girard to the east edge of the station crosswalk. The officer replied that he did not recall measuring that distance. Plaintiff’s counsel then asked, “If I were to tell you that was measured from the west curb of Girard Avenue to the east edge of that crosswalk, and the measurement was 49.6 inches, would that be correct?” The defendant objected to the question, but the witness was allowed to answer that he would not know if that was correct without measuring it himself. Plaintiff’s counsel then asked, “Well, if I were to tell you there was a measurement made with a 50-foot measure from the west curb of Girard to the east edge of that crosswalk, it measures exactly 49 feet 6 inches-” The defense objected that there was no specification of who had measured the distance or when it was measured. Plaintiff’s counsel then said, “You are looking at him right now, and I will prove it. I will take the stand, your Honor.”

The trial judge sustained the defense objection and the plaintifFs counsel rephrased the question: “Your police report shows and your investigation, that the impact • took place 50 feet west of Girard. Now, if a measurement is made and the measurement shows that if the distance between the west curb of Girard and the east edge of the crosswalk under the ‘L’ is 49 feet 6 inches, then the impact between Mr. Tullman’s automobile and Miss Gabosch was in the crosswalk underneath the ‘L’, is that right?” The defense objected that the question was argumentative and assumed facts but the question and answer were allowed. Although the plaintiff’s counsel referred three times to a measurement of 49 feet 6 inches between Girard Avenue and the station crosswalk, the measurement was never introduced into evidence.

On redirect examination, the defendant’s counsel asked Officer Rzepecki why he did not record the length of the skid marks. Plaintiff’s counsel objected that the question had been asked and answered on cross-examination. At that point the court said, “Personally I think I have a great deal of illumination from the cross-examination on that particular point,” but it allowed the question. Defense counsel then asked, “Did the length of the skid marks indicate the speed of the car?” and the witness answered that there were not enough skid marks to prove speed. Plaintiff’s counsel objected to the question and answer, and in the ensuing discussion the court said, “I don’t want to argue with you, but I think in view of the fact that the witness has testified there were not enough skid marks for him to base anything on, that question based upon the skid marks-” Defense counsel objected to the court’s comment on the ground that the witness’ testimony was misinterpreted. There was a conference outside the hearing of the jury after which the defendant’s counsel discontinued that line of questioning.

James Drish testified that he was standing in front of a restaurant east of the intersection of Girard Avenue and Central Street when the accident occurred. He said that he had been watching a group of hospital employees crossing Central Street when he saw the plaintiff. He stated that she walked about 20 feet west on Central Street and then “walked right into the street before she got to the crosswalk, and the guy who was driving the car — I heard the brakes jam, and it was too late. He hit her.” He said that the accident occurred when the plaintiff was about 15 feet east of the crosswalk to the “L” station enhance and that she walked into the street without looking either way.

During cross-examination, Drish was asked, “Incidentally, at the time of this occurrence you were unemployed, is that right?” The witness answered, “That’s right.” The question was objected to as irrelevant, but when plaintiff’s counsel promised to connect it up to relevant inquiry, it was allowed. The witness was again asked whether he was unemployed at the time of the accident and after replying affirmatively, he was asked whether he was presently unemployed. An objection to the question was sustained. The court instructed the jury to disregard the question and answer about the witness being unemployed at the present time. Drish was asked at a later time in the cross-examination if he was paid to fly to Chicago from California where he was then residing. He answered that his air fare and his transportation to and from the airport were paid for. He was asked whether he was paid for loss of wages to which the witness replied that he was not because he was unemployed.

The defense moved for directed verdicts following the close of the plaintiff’s case and after the close of all the evidence; the motions were denied as was the motion for judgment notwithstanding the verdict. The defendant contends that the motions should have been granted because there was no evidence of the plaintiff’s due care.

Whether the plaintiff was guilty of contributory negligence is a close question. The jury thought she was not and said so in its answer to a special interrogatory. Although the jury’s finding is not controlling it is entitled to great weight and it is the decisive factor in our determination of the issue. The cold record points to the lack of due care on the part of the plaintiff, but the jury had the duty of judging the credibility of the witnesses and this must be considered in the total evaluation of their testimony. Because of this consideration, we cannot say that the evidence when viewed most favorably toward the plaintiff, so overwhelmingly established her negligence that no verdict in her favor could ever stand. Moore v. Checker Taxi Co. (1971), 133 Ill.App.2d 588, 273 N.E.2d 514.

However, the closeness of the evidence on the question of due care in combination with errors committed during the trial, compel a reversal of the judgment and a remandment for a new trial. When the issue of liability is so close that the jury might reasonably have returned a different verdict, the trial must be free of errors which might have influenced the verdict.

The questioning of Officer Rzepecti by plaintiffs counsel regarding the measurement between the west side of Girard Avenue and the east edge of the crosswalk under the elevated tracks was improper. Without entering that measurement into evidence, the attorney effectively conveyed to the jury that a measurement had been made that would have placed the plaintiff in the crosswalk when the accident occurred. A statement by counsel regarding facts not in evidence is improper and may be prejudicial. Jacobson v. National Dairy Products Corp., (1961), 32 Ill.App.2d 37, 176 N.E.2d 551.

Tlie court in commenting on Rzepecki’s testimony misconstrued what the witness had said. Rzepecki stated that he did not measure the skid marks because they did not evidence speed. The court remarked that there were not enough skid marks to base anything on. The remark had the effect of nullifying the favorable inference to the defendant which could have been drawn from the officer’s testimony. A court should be conscious of the fact that it is the dominant figure in the courtroom in any jury proceeding and that an inadvertent comment on the evidence, or its attitude of belief or disbelief can influence the jury. Hickey v. Chicago Transit Authority (1964), 52 Ill.App.2d 132, 201 N.E.2d 742.

It was not error for plaintiff’s counsel to ask the witness James Drish about his occupation. It is proper to show a witness’ occupation as reflecting on his credibility. (People v. Suriwka (1971), 2 Ill.App.3d 384, 276 N.E.2d 490.) Furthermore, it is proper to show that the expense of a witness in attending court is being borne by an interested party. (Paden v. Rockford Palace Furniture Co., 220 Ill.App. 534, cert, denied (1921), 257 U.S. 645.) However, it was unnecessary for the witness’ unemployment to be elicited three times. The repetition unduly emphasized the fact that he was not working either at the time of the accident or at the time of the trial and to that extent was prejudicial.

Inasmuch as the case must be remanded, we will comment on the defendant’s contention that error was committed when the jury was instructed that a pedestrian in a crosswalk has the right-of-way. The plaintiff herself admitted that her direction in crossing Central would not have brought her within the station crosswalk. It is argued that while there was no marked walk across Central from the northwest comer of Girard a crosswalk may be presumed at this location, and that the plaintiff testified that she believed she was in this crosswalk when she was struck. The applicable statute (Ill. Rev. Stat. 1965, ch. 95%, par. 111) states that a crosswalk is “[t]hat portion of a roadway ordinarily included within the prolongation or connection of the lateral lines of sidewalks at intersections.” While there is no sidewalk on the west side of Girard there is a pedestrian pathway there, and it has been held that unimproved walks come within the purview of the statute. Glendinning v. Formiller (1973), 14 Ill.App.3d 291, 302 N.E.2d 408; Stine v. Union Electric Co. (1940), 305 Ill.App. 37, 26 N.E.2d 433. There was no error in instructing the jury on the plaintiff’s theory of recovery.

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

Reversed and remanded for a new trial.

McNAMARA, P. J., and MEJDA, J., concur.


author: Mr. JUSTICE McGLOON

text:
    David Couillard, Plaintiff-Appellant, v. Elgin, Joliet and Eastern Railway Company et al., Defendants-Appellants. B & L Cartage Company, Plaintiff-Appellee, v. Elgin, Joliet and Eastern Railway Company, Defendant-Appellant.
    (No. 57485;
    First District (3rd Division)
    August 1, 1974.

      Hackbert, Rooks, Pitts, Fullagar and Poust, of Chicago, for appellants.
    Epton, McCarthy and Druth, Ltd., of Chicago, for appellee B & L Cartage.
    Berman and Newman, of Chicago, for appellee Couillard.
   Mr. JUSTICE McGLOON

dehvered the opinion of the court:

This is an appeal from a consolidated personal injury and property damage action arising out of a coHision between a diesel locomotive and an oil truck at U.S. Steel South Works in Chicago, IHinois. A jury trial in the circuit court of Cook County resulted in a verdict for David CouHIard against the Elgin, Joliet and Eastern Railway Company and United States Steel Corporation, an a verdict for B & L Cartage Company against Elgin, Joliet and Eastern RaHway Company. The trial court entered judgment on both verdicts.

Defendants present four issues for review. They contend that (1) plaintiff David CouiHard was guilty of contributory negligence as a matter of law, (2) it was reversible error to refuse to submit defendants’ instruction to the jury which would have permitted the jury to consider CouiHard’s alleged violation of a statute on the issue of his due care, (3) it was error to refer to defendants’ faHure to caU a witness during argument and it was error to read answers from interrogatories during closing argument, (4) it was error for the trial court to exclude Couil-lard’s testimony as to his customarily foHowed procedure in approaching and crossing raüroad tracks.

We affirm.

B & L Cartage (B & L) filed a two-count complaint against the Elgin, Joliet and Eastern RaHway Company (E.J. &E.) for property damage to its tractor-trailer. Count I alleged that the E.J. & E., while operating a locomotive, was negfigent in failing to keep a proper lookout, proceeding at an excessive rate of speed, faffing to maintain its brakes in proper worldng order, and failing to abide by a stop sign. Count II aUeged that the E.J. & E. operated its locomotive in a wilful and wanton fashion. David CouiHard, who was a truck driver employed by B & L Cartage company at the time, filed a two-count complaint against the EJ. & E. and United States Steel Corporation for personal injuries sustained in the coHision. Count I alleged that the E.J. & E. was negligent in (1) operating its locomotive in a negfigent manner, (2) faffing to give any warning signals to CouiHard, (3) failing to stop the locomotive when danger to CouiHard was imminent, and (4) failing to keep a proper lookout. Count II alleged that U.S. Steel was negligent in (1) ordering CouiHard to stop with a portion of his vehicle on a railroad track, (2) fading to warn CouiHard of the approaching locomotive, (3) failing to keep a lookout for the approaching locomotive, and (4) requiring entrants to U.S. Steel’s premises to do certain acts which U.S. Steel knew or should have known would be dangerous to such persons. The complaints further alleged that defendants owed a duty to plaintiffs, that defendants’ negligence was the proximate cause of plaintiffs’ damages, and that plaintiffs were exercising due care.

At trial the following evidence was adduced. On the night of March 13, 1965, David Couillard was delivering a load of fuel oil to the U.S. Steel South Works plant. He was driving a semi-trader rig, which was approximately 52 feet in length. CouiHard had been employed by B & L Cartage as an oil truck driver for the 5 years preceding the accident. During this time he regularly delivered od to the plant 3 nights a week.

As was his customaiy procedure, Couillard approached the plant traveling east on 86th Street, a public street that ended at the gate of the South Works plant. CouiHard arrived at the plant at about 11:30 P.M. and stopped his rig at the gate opposite the guard shanty. Whde remaining in the rig he supplied some requested information to Ernest Black, the U.S. Steel plant guard. After obtaining the information, Black told CouHlard, according to CouiHard, “to puH up so he could get my trader plates,” which were at the rear of the trailer. CouiHard drove his rig forward 40 to 45 feet and stopped with his semi-trader straddling a rad-road track. CouHlard testified that as he was pulling the rig up he was looking into his left mirror to see when the end of his trailer came even with' the guard shanty. While he was stopped he put his head out the left window and waited for the guard to come out. CouiHard knew that he was straddling the track. After 20 or 30 seconds the rig was pushed over on its left side by a slow-moving switch engine which the E.J. & E. operated and which approached the rig from the right. The injuries complained of resulted from this collision.

The track upon which the engine approached ran parallel to 86th Street, an east-west street, and was a short distance south of it. (The rig was pointing east at the time of the colhsion.) A fence and some parked cars separated 86th Street from the track. At a point south of the entrance gate the track curved northerly, and at the point of the colhsion the track ran in a northeasterly direction.

Jay S. Meniman, an employee of the E.J. & E., operated the switch engine that was involved in the accident. Just before the accident the engine was moving forward. There were no radroad cars attached to it. Merriman was sitting in the engineers seat on the right side of the cab which was located to the rear of the engine. He testified that it was his duty to observe everything on the right of the engine. Merriman was watching a switchman who was walking on the right side of the train. Mr. Hardy, an employee of the E.J. & E., was sitting on the left side of the cab. Hardy was not called as a witness. Presumably he could have observed the tractor-trailer from his position in the cab.

Merriman testified that the locomotive was 300 feet away from the point of collision when it started to go forward. From the point at which the track started to curve in a northeasterly direction to the point of collision was about 45 feet. According to Merriman for the 5 minutes preceding the coHision the train was continuously moving at a speed of less than 1 mile per hour. Seconds before the collision Hardy told Merriman that the trailer was on the tracks. When he received this warning he immediately applied the brakes and stopped the train within I or 2 feet.

The locomotive hit the trader approximately one quarter of the way from the front. CouiHard described the collision as a push or a nudge. Although the tank was not punctured, the ofi did spill on the ground through a valve on the top of the trailer. Merriman testified that he did not feel the impact and did not know that he had hit the rig. According to his testimony, there were trucks stopped or going by, in the area 90 percent of the time.

The evidence showed that the artificial lighting in the area was fairly good. The headlight of the locomotive was on dim. The semi-trailer was II feet high and was illuminated with numerous multi-colored lights which were functioning properly. The testimony was in conflict as to when the bell was sounded. Couillard testified that he first heard the bell when the rig was going over. Merriman testified that he operated the bell continuously for the 25 feet preceding the collision, and that the bell was ringing for 2 or 3 minutes before the time Hardy told him to stop. According to Merriman’s description the locomotive made a very loud noise.

The switching track where the collision occurred was not equipped with any warning apparatus and no flagman was present, although CouiHard testified that on some previous occasions a flagman was present. Merriman testified that when he saw a train coming he would stop. However, on the night of the collision, neither before he crossed the track nor while he was straddling it did he look both ways for a train. He maintained that he could not see down the track to his right because it curved out of his sight.

The entire area inside the plant was paved. In addition to the track on which the coHision occurred, Couillard would necessarily have to cross 8 to 12 other sets of tracks depending on his destination within the plant. Some of these tracks had stop signs, flashers, or railroad crossing signs, presumably located in places where traffic would normaHy flow. However, there was no distinguishing marks on the pavement which delineated any roadways. A stop sign was located at a set of tracks, east of the point of coHision. According to Couillard the sign was about 75 to 100 yards inside the gate. According to Black the guard the sign was 100 feet beyond the gatehouse.

Couillard testified that the guard gave instructions to him. He was fairly certain that the guard told him to pull up and wait. He was not certain that the guard used the word “stop.” According to Black he told Couillard to proceed slowly so that he could get the license plate number off the trailer. At this time Black was speaking from inside the guard house. Black did not believe that he told Couillard to stop his truck. Between the time he told Couillard to proceed and the time he opened the door and saw the collision, Black may have been distracted with other duties. Black testified that when he opened the door he expected to merely step out to where he could see the plate on the rear of the trailer. If he missed the plate as the truck entered the plant, he would record it on the way out.

Defendants moved for a directed verdict at the close of plaintiffs’ evidence and at the close of all the evidence. The trial court denied both motions. The court also refused to give a tendered instruction which would have allowed the jury to consider Couillard’s alleged violation of section 84 of the Uniform Act Regulating Traffic on Highways (Ill. Rev. Stat. 1965, ch. 95%, § 181) in determining whether Couillard was contributorily negligent. The trial court did instruct the jury, among other things, that U.S. Steel owed Coufilard a duty to exercise ordinary care to keep its property reasonably safe for his use.

The jury returned a verdict for $8,511.12 in favor of B & L Cartage and against the E.J. & E. for damage to the tractor-trailer. It returned a verdict for $10,000 in favor of Couillard and against U.S. Steel and the E.J. & E. for his personal injuries. In a special interrogatory the jury found that Couillard was not guilty of any negligence which proximately caused any damage. The trial court entered judgments on the verdicts and denied defendants’ posttrial motions.

Defendants’ first contention is that Couillard was contiibutorily negligent as a matter of law and that, therefore, both plaintiffs should have been barred from recovery. Both cases went to the jury on the theory of ordinary negligence. At the close of aH the evidence the trial court found no evidence of wilful or wanton conduct and refused any instructions on that theory.

Defendants argue that the trial court erred in denying their motion for a directed verdict at the close of all the evidence. Under the Pedrick rule (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504), a trial court should direct a verdict only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.

In the instant case we find that the trial court properly refused to direct a verdict for defendants and properly let the issue of plaintiffs’ due care go to the jury. In terms of plaintiffs’ due care, the conduct which is expected from a reasonable man will vary according to the situation with which he is confronted. (Janjanin v. Indiana Harbor Belt R. Co., 343 Ill.App. 491, 99 N.E.2d 578.) The situation which confronted David Couillard is entirely different from those situations which confronted other plaintiffs in cited cases in which, on review, plaintiffs were found guilty of contributory negligence as a matter of law. Those cases involved collisions between trains and motor vehicles at crossings. Our reading of those cases persuades us that the reviewing courts barred recovery where a reasonable man should have known that he was in a perilous position vis-a-vis an approaching train but was negligent in the manner of crossing the tracks or in remaining on the tracks, for whatever reason he may have stopped on them.

In the instant case we have a very busy industrial plant with much traffic, both train and vehicular, proceeding in various directions. The circumstances call for a high degree of coordination between the employees of the plant and its suppliers. Couillard was familiar with the layout of the plant and its procedures. He knew that the guard wanted him to pull forward so that he could record his license plate number. While not absolutely essential, the guard usually recorded the number as the rig was going into the plant. After the guard told him to pull forward Couillard was looking out of his window and waiting for the guard to give him the “high sign.” Sometimes the guard came out of the house; other times he did not.

In addition, Couillard’s reasonable expectations about the operation of switch engines had some bearing on his standard of care. (See Stefan v. Elgin, Joliet & Eastern Ry. Co., 2 Ill.App.2d 300, 120 N.E.2d 52.) In the plant the locomotive was moving very slowly. The distance required to stop such an engine was relatively short. Many times men with lanterns warned traffic that trains were coming through; on this occasion there was no such warning. Furthermore, the evidence indicates that the engineer did not sound the bell until it was too late. In conclusion, regardless of whether the guard told Couillard to stop, the question of his due care in waiting on the railroad track was properly left to the jury.

Defendants’ second contention is that the trial court committed reversible error when it refused to submit an instruction which would have allowed the jury to consider Couillard’s alleged violation of a statute on the issue of his due care. The basis of the trial court’s refusal was his finding that the statute did not apply to the “crossing” involved in the instant case, lire statute (Ill. Rev. Stat. 1965, ch. 95%, § 181) required the driver of a vehicle carrying liquid petroleum products, before crossing any graded railroad track or tracks, to stop, listen, and look in both directions along such track for any approaching train.

Defendants argue that there was evidence in the record that Couillard violated this section and that this violation constituted evidence of contributory negligence. Plaintiffs maintain that this section does not apply to Couillard’s crossing of the track on U.S. Steel premises. Defendants argue that the statute applies to all crossings, regardless of whether they are situated on public or private property.

Our reading of the statute convinces us that plaintiffs’ position is correct. Section 20 of the Act (Ill. Rev. Stat. 1965, ch. 95%, § 117) provides:

“The provisions of this Act relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except:
1. Where a different place is specifically referred to in a given section.
2. The provisions of Articles IV and V shall apply upon highways and elsewhere throughout the State.”

“Highway” is defined in section 12(a) (Ill. Rev. Stat. 1965, ch. 95%, § 109(a)) as follows:

“Street or highway. The entire width between property lines of every way or place of whatever nature when any part thereof, is open to the use of the public, as a matter of right, for purposes of vehicular traffic * ®

In the face of these provisions defendants reply that section 84 (Ill. Rev. Stat. 1965, ch. 95%, § 181) specifically refers to a “different place” and should not be restricted to “highways” as defined in the Act. Defendants’ position is without merit. Defendants further argue that it was the legislative intent that section 84 apply to the track involved in the instant case. The case of Noe v. Chicago Great Western Ry. Co., 71 Ill.App.2d 347, 219 N.E.2d 111, cert, denied, 402 U.S. 1009, is offered in support of this argument. However, Noe is distinguishable. First, Noe involved an Iowa statute, which, while similar to section 84, did not, insofar as the opinion indicates, define its terms in the same manner as the Illinois statute. Second, Noe involved a collision between a train and a self-propelled crane at a railroad crossing on a private road which led from a gravel pit to a nearby highway. In the instant case we agree with the trial courts refusal to give a tendered instruction which was not justified by the evidence. See Gibson v. Healy Brothers & Co., 109 Ill.App.2d 342, 248 N.E.2d 771; Miller v. Vannier, 28 Ill.App.2d 258, 171 N.E.2d 405.

Defendants’ third contention has two related parts. First, they contend it was error on the part of opposing counsel to refer to defendants’ failure to call certain witnesses during closing argument. Recognizing that under appropriate circumstances such comment is proper argument, defendants maintain that the persons referred to were available as witnesses to all parties and that therefore the reference was inappropriate. Defendants claim prejudice because the jury could have inferred that they were trying to conceal unfavorable testimony.

During closing argument counsel for B & L referred to the fact that plaintiffs, not defendants, called Mr. Merriman as a witness. Counsel for Couillard argued that the other members of the train crew, who were not in court, were the people who performed the negligent acts complained of. Counsel later reiterated this assertion. Defense counsel raised no objection to any of this line of argument.

Defense counsel replied in his closing argument over objection as follows:

“If there is any implication, any innuendo, that somehow we are hiding something in this case, I want to tell the jury that is not true. I want to tell the jury that we are required to bring in employees to the trial, any of our employees that either of the plaintiffs request that we bring in. We are required to bring them in, and they can question them, as they did with Mr. Merriman.”

In rebuttal, counsel for B & L argued, as follows, with no objection from opposing counsel:

“Well, my God almighty, we have the burden to prove the case, but he certainly has got a duty to defend his clients, and if these three or four mysterious nobodys who were running that train aren’t here and could have told us something to defend his client there was nothing stopping him from bringing them in. And they were the railroad employees at the time, and we went out and got one railroad employee. We brought him in.”

Defendants raised this alleged error in their post-trial motions which the trial court denied. The complained-of argument may have been improper in that there was nothing in the record to show that the three other members of the train crew were under the control of defendants at the time of trial or that plaintiffs could not have subpoenaed them. (Wofford v. DeVore, 73 Ill.App.2d 92, 218 N.E.2d 649.) The only testimony bearing on this issue was that of Mr. Merriman, who testified that Mr. Hardy, the man next to him in the cab of the locomotive, was no longer employed by the railroad. During argument defense counsel claimed that the three crew members no longer worked for the railroad.

We do not find that this alleged improper argument prejudiced the rights of the defendants in the eyes of the jury. It was but a small portion of the entire argument. Certainly defense counsel’s explanatory remarks to,the jury would have had a curative effect on any error. Aside from that, the unfavorable inferences which the jury may have drawn related to the issue of defendants’ negligence. In this appeal defendants have not argued that the finding that the defendants were negligent was against the manifest weight of the evidence. The evidence of defendants’ negligence was substantial. Furthermore, no instruction was given on the subject of the absent witnesses, which could have compounded any error, as was done in Cicale v. Aronson, 113 Ill.App.2d 324, 252 N.E.2d 114. Under these circumstances any error in the argument was minimal and not reversible error.

The second part of defendants’ third contention is that it was error to read answers to interrogatories during closing argument. This contention arises over defendants’ two photographs of a portion of the U.S. Steel yard. Both photographs had been introduced into evidence at trial. During closing argument counsel for Couillard criticized the photographs because they were taken at an angle which made it difficult to perceive distances between important landmarks in the yard. Counsel implied that because it was private property plaintiffs could not gain access to take their own photographs. Defendants raised no objection to this portion of the argument.

Counsel for defendants responded to this argument by pointing out that discovery was available to plaintiffs so that they could have taken their own photographs. In rebuttal, counsel for Couillard read an answer from an interrogatory over objection. The answer stated that photographs of the area of the accident were taken on March 15, 1965 and were in the possession of defense counsel. Counsel for Couillard argued to the jury that plaintiffs relied on defendants to have “decent” photographs.

It appears that defendants’ argument is directed to the impropriety of reading from interrogatories and to the prejudicial effect of the critical references to the photographs in evidence. It is proper argument for counsel to comment on the appearance of an exhibit. (Romine v. Scott, 130 Ill.App.2d 649, 264 N.E.2d 537.) Defendants argue that opposing counsel’s comments implied that they were attempting to hide something. We have examined the photographs and because of the angle at which they were taken they provide little help in illustrating the general layout of the yard near the gate, and they do not shed much light on our inquiry whether, if Couillard had pulled his truck up farther and had stopped at the stop sign, he would have still been straddling a railroad track. Considering the arguments of both counsel in the context of the entire argument to the jury, we find no prejudice which would require us to reverse the judgment.

Defendants’ final contention is that the trial court erred in refusing to allow defendants to inquire into the habits of Couillard in crossing railroad tracks at the usual highway crossings. The intended purpose of this testimony was to show a deviation from his customary procedure on the night of the accident. The trial court refused to allow defense counsel to examine in this area. We find that the court’s ruling was proper. Although testimony as to Couillard’s habits in crossing railroad tracks at highway crossings may have had some relevance to whether he exercised due care in crossing the tracks on the U.S. Steel premises, even at a point where there was no designated railroad crossing, its admission might have tended to confuse the issue as to the care required in crossing the railroad track in the U.S. Steel yard. Whether certain useful evidence, which may have the danger of confusing the issues, should be admitted into evidence is left to the sound discretion of the trial court. (Veer v. Hagemann, 334 Ill. 23, 165 N.E. 175.) As no abuse has been shown, we will not disturb the trial court’s ruling.

For the above reasons, the judgments of the circuit court of Cook County are affirmed.

Judgments affirmed.

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