text:
    Ila M. Browning, Plaintiff-Appellant, v. Heritage Insurance Company, Defendant-Appellee.
    (No. 72-392;
    Second District
    July 11, 1974.
    Russell J. Goldman, of Rockford, for appellant.
    Raphael E. Yalden, of Rockford, for appellee,
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Plaintiff recovered a judgment in the amount of $30,000 in her personal injury suit against Gordon T. Johnson who was insured by the defendant. The judgment was affirmed on appeal in 132 Ill.App.2d 85. Johnson assigned his rights in the insurance policy to the plaintiff, who sought recovery below against the defendant for the excess of the judgment over the $10,000 policy limits on the theory that defendant had wrongfully refused to settle for the policy limits.

Plaintiff’s complaint and various amendments were stricken on defendant’s motion. The last pleading filed by plaintiff was entitled “Fourth Amended Complaint”, but the motion to dismiss referred to it as the “Fifth Amended Complaint”, apparently because a second count was added. The motion to dismiss each of the two counts of the last amended complaint resulting in the order appealed from charged that the pleading contained immaterial matter, conclusions of fact and of law, and insufficient allegations of fact to sustain a complaint. The order appealed from recited in the ordering portion (in full): “That said Fourth and Fifth Amended Complaint are stricken.”

Review by the appellate court is limited to final judgments and certain interlocutory orders as specified by the Supreme Court Rules. (See Ill. Rev. Stat. 1973, ch. 110A, pars. 301 — 308.) Before a judgment or order is considered final it must dispose of or terminate the litigation or some definite part of it on the merits of the cause. Village of Niles v. Szczesny (1958), 13 Ill.2d 45, 47-48.

The entry of the order to strike a complaint without more is not final or appealable even though the question of jurisdiction is not raised. Chicago Portrait Co. v. Chicago Crayon Co. (1905), 217 Ill. 200, 201-202; Robinson v. City of Geneseo (1966), 77 Ill.App.2d 308, 309-310.

While a test of finality lies in the substance and not the form of the order (Peach v. Peach (1966), 73 Ill.App.2d 72, 78), the order before us in form and in substance does not dispose of the rights of the parties upon the merits of the entire controversy or upon some definite and separate part of the litigation. It is therefore not final or appealable. From what we have before us, the case could proceed in the trial court upon further amended pleadings. The motion to dismiss did not seek to dismiss plaintiff’s suit but addressed itself to defects in the allegations and deficiencies in the pleading which could ostensibly have been cured by amendment. (Compare Lakatos v. Prudence Mutual Casualty Co. (1969), 113 Ill.App.2d 310, 315.) The order conforms to the motion.

We deem it the equitable procedure under the circumstances to dismiss the appeal with the specific declaration that at such time as the trial court enters a judgment which is final and appealable, on further appeal we would not require that the parties re-print their briefs and would decide the appeal on the record as supplemented. Ariola v. Nigro (1958), 13 Ill.2d 200, 208-209; Robinson v. City of Geneseo, 77 Ill.App. 2d 308, 310-311.

Appeal dismissed.

GUILD and RECHENMACHER, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SMITH

license: Public Domain

text:
    Judith Mounts Wilson et al., Plaintiffs-Appellants, v. Don LaCost, Inc., et al., Defendants-Appellees.
    (No. 12091;
    Fourth District
    July 10, 1974.

      Summers, Watson and Kimpel, of Champaign, for appellants.
    Costigan, Wollrab, Fraker & Wochner, of Bloomington, for appellees.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

In this personal injury action the jury returned a verdict for defendants. Judgment was entered thereon and plaintiffs appeal. They contend that the verdict is against the manifest weight of the evidence, that a verdict should have been directed for them, error in instructions, and the denial of an exhibit as admissible in evidence.

The errors asserted require a recital of the evidence. The case had been tried previously, with a like result, and this trial followed our denial for leave to appeal from an order which granted this trial. Plaintiffs premise their case on a collision with defendants’ semi-trailer truck. Defendants deny any collision. Plaintiffs say that the trailer was in their lane of traffic and the collision unavoidable on their part. Defendants’ truck was loaded with lime fertilizer to be be delivered to a farm on a road on which plaintiffs were travelling. The truck and trailer was 30 feet in length and weighed 71,000 pounds when loaded. The defendant-driver arrived at his destination around 6 P.M. The date was November 8, thus it was dark and to compound matters, snowy and rainy. The driver upon arrival backed his rig across the blacktop into the driveway of the farm for which the fertilizer was intended. In doing so, his rig and trailer blocked both lanes. He then noticed the plaintiffs’ vehicle approaching about one-half mile or less away and, as he testified, he pulled his semi-trailer completely out of the driveway, and back into his lane. Thus, he argues, it was impossible for plaintiffs to strike the rear end of his trailer as he was not in their lane. Plaintiffs, husband and wife at the time of the trial, but bride and groom at the time of tire accident — they were to be married that evening — present a contrary view of the facts, needless to say. He testified that upon approaching the scene he saw defendants’ semi-trailer straddling the blacktop and he thereupon braked and swerved to the right to avoid a collision — which he says he was unable to do, striking the back end of the trailer with his automobile and continuing onto the shoulder in front of the driveway where defendants’ truck had previously been. His car turned over and came to rest in a drainage ditch. She was badly injured. Both testified that he was traveling at a speed of from 50 to 55 mph — the defendant-driver says 75 mph. While approaching defendant’s truck she testified that she said nothing to him with regard to its presence. The precise question seems to be whether defendants’ truck was completely in its lane of traffic, or as plaintiffs assert, did a part of it extend into their lane?

The following morning, a State trooper examined plaintiffs’ automobile noting the left rear section of the car and that the tail light had been tom off. Sod was imbedded under the car between the front wheels. He examined defendants’ truck and testified that he found fresh scratches and indentations in the metal of the trailer on the left rear comer. Following such examination, the State Trooper and the father of one of the plaintiffs returned to the scene and found various parts of reflector glass and other pieces of glass and metal at the edge of the driveway leading to the farm which defendants’ driver said he backed into and out of. The left reai- reflector on the trailer was missing and particles of reflector-type glass were found at the scene of the collision. The glass imbedded in the trailer and the glass at the scene were submitted into evidence, but the reflector and other particles were denied admission. The driver testified that the reflector could have been dislodged elsewhere.

Is the state of the evidence as we have summarized it such that we should order a new trial or in the alternative direct that the trial court enter a judgment notwithstanding the verdict and proceed to the issue of damages? The Pedrick rale says, with regard to the latter, that we should do so — i.e., the trial judge should have done so, only where all of the evidence viewed in its aspect most favorable to the defendants so overwhelmingly favors plaintiffs that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria and E. R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) Clearly, we think, that the Pedrick rule is not applicable here, as we cannot say that tibe evidence so overwhelmingly favors plaintiffs that no contrary verdict could ever stand.

Plaintiffs point to Hale v. Cravens, 129 Ill.App.2d 466, 263 N.E.2d 593, as conclusive. However, in Hale, a preferential highway was involved and as the court pointed out, the only bar to plaintiffs’ recovery “would be their own contributory negligence.” The court then noted there was no evidence supportive of negligence on the part of the plaintiffs, that is, there was nothing to alert them that another vehicle approaching along a secondary road controlled by a stop sign would not obey it and yield the right of way. This case is not controlling, if for no other reason, than plaintiffs’ evidence itself raises questions of fact as to contributory negligence.

Thus, we must now determine whether a new trial should have been granted, for even though the evidence supports the verdict to some extent, negating application of the Pedrick rule, if it is against the manifest weight of the evidence, a new trial would be in order. But a wrinkle appears here, if there has been a prior trial with a like result — which is not true under the Pedrick rule. In other words, the verdict of the first trial for defendants does impinge in deciding whether or not the weight of the evidence at the second trial is manifestly against the verdict. (Russell v. Rowe, 82 Ill.App.2d 445, 226 N.E.2d 652.) We quote:

“When successive verdicts in the same case on substantially the same evidence are in favor of the same party reviewing courts are reluctant to disturb the verdict as contrary to the weight of the evidence.” 82 Ill.App.2d at 449.

Here, plaintiffs argue that the facts are undisputed and show that defendants’ driver was guilty of negligence. But this argument, in our evidentiary context, has to assume that the driver was unworthy of belief. Plaintiffs argue that his testimony was self-serving — exculpatory— but such characterizations in and of themselves do not cause his testimony to count for naught. Nor does it suffice to make his testimony incredible. Relative to the speed of plaintiffs’ automobile, they point to some calculations the driver was asked to make on cross-examination which could have impeached his opinion that their speed was 75 miles per hour. That he may have been mistaken — he asserted that he wasn’t — does not render his testimony incredible, from plaintiffs’ point of view, nor credible, from his point of view — as a matter of law. In short, it was for the jury to decide whether to take his story or theirs. The fact that their testimony was unimpeached coupled with the physical evidence gathered at the scene which was admitted, does not, ipso facto, destroy defendants’ evidence. In our opinion, the driver’s testimony does raise a question of fact. In other words, his testimony is not inherently improbable. A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly apparent or the findings appear to be unreasonable, arbitrary, and not based on the evidence. In our opinion, the verdict here is not that. Miller v. DeWitt, 59 Ill.App.2d 38, 208 N.E.2d 249.

As we have noted, some of the debris at the scene was admitted into evidence, but the reflector glass was not. The weight of the physical evidence admitted as to whether or not it sustained plaintiffs’ position was clearly a matter for the jury — it does not, as plaintiffs argue, render defendant-driver’s testimony incredible. There was no direct tie up between the reflector glass found at the scene and the reflector glass missing from the left rear of the trailer. That being so, no error was committed in denying its admission into evidence. It was a common type of reflector glass, or so the testimony showed, and the defendants — agent of owner corporation and driver, testified that this type of reflector was not the kind used on their truck. Another point, which the jury may very well have taken into consideration as to whether or not a collision occurred— points of contact allegedly being the left rear of plaintiffs’ car and the left rear of the trailer — is that the trailer’s bed was about 4 feet from the ground and the rear of the car about 3 feet. We are not saying that it didn’t happen, all we can say is that a factual question is presented and that being so, it is not for us nor the court below, but for a jury to decide what the true facts are.

With regard to the issue of contributory negligence — that is, should there have been any instructions at all, as to the plaintiff-driver, clearly there was a factual question. The issue of speed alone, in our opinion, could raise the issue. Plaintiff cites the Hale case, previously noted above, as rendering the element of speed non-operative in our context. However, the factual situation, as we have pointed out, between that case and this is substantially different. Speed here was an issue, it was raised, and it goes directly to the issue of contributory negligence on the part of both plaintiffs and most particularly as to plaintiff-driver. As to the passenger, we can only say that the failure to do anything does raise a question of fact for the jury to consider as to whether or not she was contributorily negligent. It was dark, the weather was rainy and snowy, they were traveling on a blacktop, therefore speed and the condition of the roadway were relevant factors. Plaintiffs themselves testified that their speed was 50-55 mph and that creates an issue of fact for triers of fact who might well conclude that even their opinion as to speed— 25 mph less than defendants’ testimony — was excessive in the situation that faced them. Whatever the speed, it was sufficient to cause a skid for 190 feet on the blacktop, another 190 feet on the shoulder with enough force remaining to turn plaintiffs’ automobile — a Chevrolet Chevelle— over and for it to slide into the drainage ditch — and this is without regard as to whether it hit the left rear of defendants’ truck as plaintiffs maintain or some other obstruction, such as a culvert, as defendants maintain. Under the circumstances as presented to us, it is our opinion that an issue was raised as to whether plaintiffs did keep a proper lookout and did exercise reasonable care to avoid a collision. Miles v. Sears Roebuck & Co., 1 Ill.App.3d 144, 147, 273 N.E.2d 68, cited to us by defendants, is in point:

“It has been held many times that a driver of an automobile who does not maintain a proper lookout and use every reasonable precaution to avoid a collision with the traffic ahead is negligent.”

Of course a passenger cannot be vicariously guilty of contributory negligence. The negligence of the driver here, in other words, is not imputed to her. But, a duty does remain, as pointed out in Zank v. Chicago, R.I. & P. R.R. Co., 17 Ill.2d 473, 482-483, 161 N.E.2d 848.

“ ‘The law fixes the same standard of duty for a passenger as for a driver of an automobile — the exercise of reasonable care for his own safety, but the conduct which reasonable care requires of a passenger will not ordinarily, if in any case, be the same as that required of a driver because their circumstances are different. * * * It is the duty of a passenger in a vehicle, where he has an opportunity to learn of danger and to avoid it, to warn the driver of such vehicle of approaching danger, and he has no right, because someone else is driving, to omit reasonable and prudent efforts on his own part to avoid danger” * *."

She was not asleep, or in a position not to observe the same conditions as her driver. Indeed, her testimony as to salient particulars echoed his. This being so, it is our opinion that a factual question was presented for resolution by the jury as to whether or not she negligently contributed to her injuries. The Pedrick case (63 Ill.App.2d 117, 125, 211 N.E.2d 134) is pertinent at this juncture. We quote:

“A passenger riding in an automobile must exercise due care for his own safety, and if he has an opportunity of learning of approaching danger, and has the opportunity to avoid said danger, he must warn the driver of such danger. Such passenger, merely because someone else is driving the car, has no right to omit prudent efforts on his part to avoid danger.”

The cases cited by plaintiffs to negate an issue of fact have to do with sudden appearances of other vehicles — totally unexpected and not to be expected by reasonable plaintiffs in their various factual settings. But here both plaintiffs testified that they saw the lights of defendants’ truck at least half a mile away when they turned on to the blacktop in question. The fact that they could not, as they testified, determine whether it was a truck and on their side of the road does not, if true, cause the presence of defendants’ vehicle to bear the appendages of suddenness. This being so, the IPI instructions as to contributory negligence were properly given and we can discern no undue emphasis on this issue from the instructions so tendered and given.

Accordingly, the judgment appealed from is affirmed.

Affirmed.

TRAPP and CRAVEN, JJ., concur.


author: Mr. JUSTICE EBERSPACHER

text:
    Phillip Taylor et al., Plaintiffs-Appellees, v. Charlia R. Starkey, a Minor, et al., Defendants-Appellants.
    (No. 73-352;
    Fifth District
    July 9, 1974.

      Gerald B. Cohn, of Bethalto, for appellants.
    R. Michael Fischer, of Alton, for appellees.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

The petitioners, Phillip Taylor and Linda Taylor, have filed this action for the adoption of Charlia R. Starkey. The matter was contested by the natural father, defendant Fred R. Clymer (hereinafter referred to as the defendant). The circuit court of Madison County by interim order terminated the parental rights of the father. From the decree of the court terminating the parental rights and the denial of the post-trial motion, this appeal is taken.

This case commenced with the petitioners filing their petition for adoption. The defendant filed his answer asking that the petition be denied. The defendant next filed an affirmative defense setting forth the rights of the natural father of an illegitimate child. The guardian ad litem for the minor child filed his answer asldng that the petitioners be placed upon strict proof and requesting the court to protect fully the rights of all of the interests of the minor child. All parties were represented by counsel.

The court entered its order granting to the petitioners temporary custody of the minor child subject to certain visitation rights in the father and after numerous other pleadings, the matter as concerned the parental rights was heard and taken under advisement; the court entered an interim order terminating the parental rights of the defendant and subsequently entered its order denying the defendant’s post-trial motion.

The defendant appeals asserting that the court below erred in several particulars. The defendant asserts that the court erred in finding that the defendant was an unfit parent because of depravity within the meaning as set forth in section 1 of the Adoption Act (Ill. Rev. Stat., chapter 4, par. 9.1 — l). The defendant also asserts that the court erred in admitting certain photographs into evidence over objection and the defendant asserts that the court abused its discretion in disregarding the “report” of the guardian ad litem.

The petitioners have filed several motions subsequent to this appeal which appear to be well founded but we shall not rule on them preferring to decide this matter on its merits. Thus, the motions shall be denied. Little purpose shall be served in setting forth in great detail the unfortunate evidence heard by the court, included in a 270-page transcript. The basic facts in this case will, however, be stated.

The defendant is the natural father of Charlia Renee Starkey born on October 8, 1971, in Independence, Missouri, to Janice Lee Starkey. The defendant and Janice Starkey were living together out of wedlock at the time of the child’s birth, and had lived together for a period of approximately 13 months from December, 1970, until the end of January, 1972. The defendant was married to his present wife until February 16, 1971, when he was divorced by his present wife on the grounds of physical cruelty. He thereafter on February 9, 1973, remarried her. The defendant who at the time of this hearing was 29 years of age had also one other prior marriage which also terminated by divorce.

The defendant had plead guilty to involuntary homicide although denying that he killed Janice Starkey, the natural mother of the child. He was in the Menard Security Hospital for a little less than a month and he is now free on probation. The psychiatrist that treated the defendant stated that although the defendant is a stable and responsible person with no signs of violent tendencies, he is a depressive neurotic with passive aggressions.

The trial court in its interim order found that the defendant was an unfit parent due to “depravity” as evidenced by (1) his continued pattern of extreme and repeated physical cruelty towards the women in his life, (2) his conduct and actions living in open and notorious adultery with the deceased mother, (3) his mental condition relative to distrust for women, (4) the untrustworthiness of the testimony given by the defendant at the trial regarding certain matters of child support and prior conduct between the defendant and his present wife.

The defendant cites numerous cases wherein the courts have held that evidence of past mental disturbances where no recurring symptoms have appeared should have no bearing on the issue of fitness. (Vanden Heuvel v. Vanden Heuvel, 254 Iowa 1391, 121 N.W.2d 216; McKay v. McKay, 253 Iowa 1047, 115 N.W.2d 151; Acomb v. Billeiter (La.App.), 175 So.2d 25) and the case of Alden v. Alden, 226 Md. 622, 174 A.2d 793, wherein the Maryland Court of Appeals held that the trial court did not abuse its discretion in awarding custody to the mother who had had a history of mental illness but now appeared to have made a satisfactory adjustment.

The defendant also asserts that the issue of unfitness by depravity was not established by a preponderance of the evidence, citing Young v. Prather, 120 Ill.App.2d 395, 256 N.E.2d 670. We agree with the defendant as to the required measure of proof, but we do not agree that this burden has not been met. There is adequate competent evidence in the record to support the findings of the trial court. As stated in the Young case, acts constituting depravity within the meaning of the statute must be of “sufficient duration and sufficient repetition to establish a ‘deficiency’ in moral sense and either an inability or an unwillingness to conform to accepted morality.” In the present case, we are not confronted with a single act of “depravity”, but a course of conduct exhibited by the defendant going back over a period of some 13 years.

The defendant appears to be taking the position that each of the specific findings in the court’s order is the specific finding of depravity. The totality of the findings of the court constitute depravity and such totality does constitute “depravity”, within the meaning of the statute. Smith v. Andrews, 54 Ill.App.2d 51, 203 N.E.2d 160.

We find after reviewing the entire record of the proceedings that the court had as its primary concern the best interest of the child in its interim order. Stalder v. Stone, 412 Ill. 488, 107 N.E.2d 696.

After hearing the evidence the trial court asked the parties to file briefs. That of the guardian ad litem concluded that under the law and evidence the defendant Clymer was not unfit by reason of depravity and recommended denial of the petition for adoption. Both appellee and appellant refer to the brief as a report. The defendant Clymer contends that the court abused its discretion in not following such “report.” The court was not bound by the recommendation of the guardian ad litem. It can be pointed out in at least one instance, the report of the guardian ad litem did not agree with the evidence presented at the hearing. The report of the guardian ad litem states, “It is fully realized that there are undisputed psychologist’s finding that Mr. Clymer has now established a life of stability.” The testimony of the psychiatrist at the hearing does not completely agree with this statement. We do not find that the court abused its discretion in not following the recommendation of the guardian ad litem.

The defendant also asserts that the court erred in receiving into evidence certain photographs of the body of the deceased mother. As this was a bench trial, we can assume and do assume that the court considered only competent evidence. There is, in our opinion, a plethora of evidence to support the findings of the trial court absent the photographs themselves. Thus, we will not consider whether or not the photographs were erroneously admitted. In re Estate of Trautt, 10 Ill.App.3d 953, 295 N.E.2d 293.

As its final contention that the court below erred, the defendant contends that a certain report of investigation made pursuant to section 6 of the Adoption Act (Ill. Rev. Stat, ch. 4, par. 9.1 — 6) by the probation officer that appears in the record should not be a part of the record by virtue of the language of that section. There is an absence of showing how the report became a part of the record and further that the report in any way was detrimental to the defendant; nor is there any showing that the court relied upon it. If such report being in the record is error, then it is such error that may be considered harmless.

The judgment of the trial corut is affirmed.

CARTER and CREBS, JJ., concur.

       “D. ‘Unfit person’ means any person whom the court shall find to be unfit to have a child sought to be adopted, the grounds of such unfitness being any one of the following: * * * (f) Failure to protect the child from conditions within his environment injurious to the child’s welfare; (g) Other neglect of, or misconduct toward the child; provided that in making a finding of unfitness the court hearing the adoption proceeding shall not be bound by any previous finding, orders, judgment or decree affecting or determining the rights of the parents toward the child sought to be adopted in any other proceeding except such proceedings terminating parental rights as shall be had under either this Act or the Juvenile Court Act; (h) Depravity; (i) Open and notorious adultery or fornication * *


author: Mr. JUSTICE DOWNING

text:
    Dillard J. Phifer, Jr., Plaintiff-Appellee, v. William A. Hayes, Defendant-Appellant.
    (No. 55798;
    First District (2nd Division)
    June 25, 1974.

      Rehearing denied July 26, 1974.

      Parrillo, Sims and Bresler, of Chicago (Murray W. Sims, Jr., of counsel), for appellant.
    Karlin and Fleisher, of Chicago (Barry M. Woldman, of counsel), for appellee.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Plaintiff-appellee Dillard J. Phifer, Jr. brought an action to recover damages occasioned by the alleged negligence of defendants William Hayes, Standard Oil Co., Rooker Crockett, and Willie Thomas. In his complaint plaintiff alleged that Hayes struck and injured the plaintiff as Hayes drove his automobile on the premises of a Standard Oil gas station where the car was being repaired by Crockett and Thomas. Standard Oil Co. was dismissed from the case on its own motion and, on motion of the plaintiff, Crockett and Thomas were dismissed at trial. Judgment was subsequently entered in favor of the plaintiff in the amount of $10,000. Defendant Hayes now prosecutes this appeal from that judgment as well as from the trial court’s order denying his petition to dismiss plaintiff’s cause of action for lack of diligence in securing service of process on the defendant and denying his post-trial motion.

The sole issue on this appeal is whether the circuit court erred in concluding that the plaintiff exercised reasonable diligence in obtaining service of process upon defendant Hayes.

The following chronology of events sets out the pertinent facts of the case.

Nov. 15, 1962Date of the accident resulting in plaintiff’s injury.

Nov. 12, 1964Plaintiff filed his complaint and placed a summons with the Sheriff of Cook County listing defendant’s address as 720 E. 79th St., Chicago.

Dec. 12, 1964Summons returned “not found.”

Aug. 19, 1966Plaintiff placed his first alias summons, listing defendant’s address as 720 E. 79th St.

Sept. 8, 1966First alias summons returned “not found,”

Oct. 29, 1968 Plaintiff placed a second alias summons, listing defendant’s address as 720 E. 79th St.

Oct. 31, 1968 Second alias summons returned ‘not found.”

Mar. 13, 1969 Plaintiff placed a third alias summons, listing defendant’s address as 7049 S. Lowe.

Mar. 16, 1969 Third alias summons returned “not found.”

Sept. 1969 Defendant moved from Chicago to California.

Nov. 15, 1969 Plaintiff contacted the law firm of Parrillo, Sims, and Bresler and was informed that defendant was residing in California.

Dec. 29, 1969 Plaintiff placed a fourth alias summons with the Illinois Secretary of State.

Jan. 5, 1970 Plaintiff sent notice of this last summons to defendant at 7049 S. Lowe.

Jan. 15, 1970 Parrillo, Sims, and Bresler filed a special and limited appearance on behalf of defendant.

Thereafter defendant on March 12, 1970, filed his verified petition to dismiss plaintiff’s cause of action due to lack of diligence in obtaining service of process upon defendant. Defendant alleged that he was first notified of this lawsuit when plaintiff issued the alias summons served on the Secretary of State on December 29, 1969; that from 1962 until 1963 he lived at 720 E. 79th St.; that he then moved to 2109 E. 68th St. where he resided until 1964 when he moved to 7049 S. Lowe; that in 1965 he moved to 6400 S. Woodlawn where he remained until moving to California in September, 1969; and that, from the date of the accident until September, 1969, he was employed by Dyman and Anderson Construction Co., 5839 W. Cleveland, Morton Grove, Illinois, which information appeared on the police accident prevention report dated November 15, 1962, a copy of which report was attached as an exhibit to the verified petition.

Plaintiff filed no responsive pleading to defendant’s petition; nevertheless, the court, on March 13,1970, denied defendant’s petition. Thereafter the cause was assigned to the trial judge on May 28, 1970. The cause was heard by the trial court without a jury and, having heard all the evidence, the trial court on June 1, 1970, found in favor of plaintiff. Judgment was entered on June 1, 1970, against defendant in the amount of $10,000.

In his post-trial motion on June 24, 1970, defendant requested that the judgment be vacated and entered in his favor or, in the alternative, that he be granted a hearing on his post-trial petition to dismiss pursuant to Supreme Court Rule 103(b) (Ill. Rev. Stat. 1967, ch. 110A, par. 103(b)).

Responding to defendant’s petition to dismiss, plaintiff on July 3, 1970, stated that the court did not err in refusing to hear the petition, and that, by his attorneys, he acted with all due diligence in obtaining service of summons upon defendant. In support of this statement, plaintiffs attorney submitted his affidavit wherein he detailed at some length his efforts to serve the defendant, stating that plaintiff had no knowledge of where defendant had been employed, and that none of the investigation or police reports submitted by his investigators contained that information.

After conducting a hearing on this matter, the trial court on December 9, 1970, entered its order denying defendant’s motion to vacate the judgment as well as the motion to dismiss the cause of action as to the defendant.

I.

Defendant points out that he did not learn of the pendency of the action or receive sendee of summons until 7 years after the occurrence and 5 years after the statute of limitations would have run, had the action not been filed. He contends that any efforts to locate him made by plaintiff were minimal and do not meet the required standards of reasonable diligence.

Defendant based his petition upon Supreme Court Rule 103(b) which provides:

“Dismissal for Lack of Diligence. If the plaintiff fails to show reasonable diligence to obtain service, the action as a whole or as to any unserved defendant may be dismissed with or without prejudice on the application of any defendant or on the court’s own motion.” Ill. Rev. Stat. 1967, ch. 110A, par. 103(b).

This rule was intended to prevent the practice whereby a plaintiff would effectively circumvent the statute of limitations by filing suit within the applicable statutory period but then delay the service of process for an unreasonably long period of time (Kohlhaas v. Morse (1962), 36 Ill.App.2d 158, 162, 183 N.E.2d 16; Hansel v. Chicago Transit Authority (1971), 132 Ill.App.2d 402, 409, 270 N.E.2d 553; Roberts v. Underwood (1971), 132 Ill.App.2d 439, 441, 270 N.E.2d 547). While prevention of intentional delay in the service of summons was a primary reason for passage of Rule 103(b) and its predecessors, the rule is not based upon the subjective test of plaintiff’s intent but rather upon the objective test of reasonable diligence in effecting service. Caliendo v. Public Taxi Service, Inc. (1966), 70 Ill.App.2d 86, 88, 217 N.E.2d 369; Karpiel v. La Salle National Bank (1970), 119 Ill.App.2d 157, 160-61, 255 N.E.2d 61.

In Caliendo v. Public Taxi Service, Inc., supra, which was a suit for personal injuries arising from an auto accident, the complaint was filed during April, 1962, and the summons was returned “not found” 1 month later. Plaintiff made no further attempt to serve defendant until nearly 20 months later when plaintiff placed an alias summons which was served upon defendant. Defendant appeared, moved to dismiss the action pursuant to Supreme Court Rule 4(1), and filed an affidavit showing that, for each of the years in question, its correct address was ascertainable from various sources in which it was publicly registered. Plaintiff filed no counter-affidavits and the action was dismissed. In affirming the trial court’s decision, this court quoted from Kohlhaas v. Morse, supra, that:

“ ‘The unexplained failure to obtain service on a party until months after the statute had run could hardly be “reasonable diligence to obtain service, * * ”

In Sullivan v. Nissen Trampoline Co. (1967), 82 Ill.App.2d 1, 226 N.E.2d 649, the summons placed by plaintiff at the time he filed suit was returned “not found.” He did not take out an alias summons until 2 years later. Defendant’s motion to quash the service of summons was aUowed and, on appeal, this court affirmed that decision, stating that the corporate defendant was an IHinois corporation with a Chicago registered agent and no explanation was made for the delay in placing an alias summons for almost 2 years.

These opinions adequately demonstrate the negative position which has been taken by this court when asked to reverse the trial court’s dismissal of a cause of action where the information needed to contact the defendant was available to the plaintiff and he nonetheless failed, without explanation, to obtain service of summons upon the defendant until long after the suit had been filed. Karpiel v. La Salle National Bank of Chicago, supra; Hansel v. Chicago Transit Authority, supra; Roberts v. Underwood, supra.

Having examined these and numerous other opinions cited by both parties in support of their respective positions, it is apparent and must be noted that a motion for dismissal for lack of diligence to obtain service is addressed to the sound legal discretion of the trial court, and it is only when there is an abuse of discretion that a reviewing court will interfere. Mosley v. Spears (1st Dist. 1970), 126 Ill.App.2d 35, 40, 261 N.E.2d 510.

In the instant case it is not disputed that plaintiff filed his complaint 3 days before the running of the statute of limitations; that he did not place his first alias summons until approximately 20 months after the return of the original summons; that he then waited 26 months before placing a second alias summons; and that he placed his third alias summons 4Vz months after issuance of the second. Thus a total of 7 years plus almost 2 months elapsed from the date of the alleged accident and service of process. Defendant places much reliance on the fact that he could easily have been contacted at his place of employment for approximately 7 years after the accident, and urges that, since the location of his employer was listed in the police accident prevention report, plaintiff s failure to obtain and read that report evidences a lack of diligence.

In Mosley v. Spears, supra, the court stated that the burden is on the plaintiff to show that prompt service was obtained. And, on the other hand, it is not incumbent upon the defendant to show prejudice by the delay (126 Ill.App.2d 42). See also Alsobrook v. Cote (1st Dist. 1971), 133 Ill.App.2d 261, 264, 273 N.E.2d 270.

The record in this case indicates that, after service on December 29, 1969, through the Secretary of State, a special and limited appearance was filed on behalf of the defendant. Thereafter on February 16, 1970, an attorney for defendant, by affidavit, disclosed the California address of defendant.

On March 12, 1970, defendant filed his petition to dismiss pursuant to Rule 103(b). This verified petition set forth, amongst other things, the Chicago addresses of defendant from 1962 until September, 1969, when defendant moved to California; that from November 15, 1962, until September, 1969, defendant was employed by Dyman and Anderson Construction Co., 5839 W. Cleveland, Morton Grove, Illinois, which fact was also listed on a Chicago Police Department traffic accident prevention report dated November 15,1962. On March 13,1970, without any reply, counter-affidavits, or disclosure of any efforts by the plaintiff to obtain prompt service, the court denied defendant’s petition to dismiss.

On May 28, 1970, the cause was assigned to the trial judge. Thereupon by agreement the parties proceeded to trial before the court without a jury, resulting in a finding and judgment in favor of plaintiff in the amount of $10,000. On June 24, 1970, defendant filed a post-trial motion again challenging service and urging dismissal pursuant to Rule 103(b).

For the first time, on July 3, 1970, plaintiff filed a reply to the Rule 103(b) petition and by affidavit, with various exhibits, set forth his efforts to locate and serve defendant. Thereafter the trial judge denied defendant’s post-trial motions.

In our opinion when the defendant filed his verified petition to dismiss on March 12, 1970, under Rule 103(b), the question of plaintiff’s reasonable diligence became the threshold issue. Plaintiff then had the burden to demonstrate in a proper manner that he had exercised reasonable diligence to effect service. However, without plaintiff’s having contradicted or explained any of the allegations set forth in defendant’s petition, the court denied defendant’s petition. Therefore, the order of March 13, 1970, denying defendant’s petition to dismiss is not supported by the record at that time and was in error. As the rules (Supreme Court Rule 307: Interlocutory Appeals as of Right ) did not permit an appeal from the March 13, 1970, order, the action of the defendant in proceeding to trial did not constitute any waiver thereof. In any respect this point was preserved by the defendant both in his post-trial motion and in his notice of appeal.

Plaintiff did, of course, file a reply to defendant’s post-trial motion which, by way of an affidavit and exhibits, set forth facts tending to show his exercise of reasonable diligence. However, in our opinion, that was too late.

As we have said, the order of March 13, 1970, was in error. Therefore, the judgment of the circuit court of Cook County entered on June 1, 1970, is hereby reversed.

Judgment reversed.

HAYES, P. J., and STAMOS, J., concur.

       Effective January 1, 1970, the rule was amended to read as follows:
      “(b) Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.”

       Ill. Rev. Stat. 1969, ch. 110A, par. 307.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
      In re Salvador Woods, Minor-Respondent — (The People of the State of Illinois, Plaintiff-Appellee, v. Salvador Woods, Defendant-Appellant.)
    (No. 59652;
    First District (5th Division)
    June 21, 1974.

      Donald T. Bertucci, of Chicago (Patricia Umsinn, Senior Law Student, and Jody C. Weiner, of counsel), for appellant.
    Bernard Carey, States Attorney, of Chicago (Patrick T. Driscoll, Jr., and William F. Linkul, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from a judgment terminating a stay of mittimus and finding respondent to be delinquent.

In September, 1972, after a previous finding that respondent was delinquent, a stay of mittimus was ordered which was in effect in March, 1973, when he was again arrested and a supplemental petition was filed charging him with robbery. A hearing was held in August of 1973, and he was found to have violated the stay of mittimus and to be delinquent on the supplemental petition. He was committed to the Juvenile Division of the Department of Corrections.

On appeal, respondent contends that (1) the court improperly refused to suppress the identification testimony of complainant; (2) the evidence was insufficient to prove him guilty of robbery beyond a reasonable doubt; and (3) improper cross-examination deprived him of a fair and impartial trial.

At the hearing on the supplemental petition, complainant Joan Poskozan, called by the State, testified that at about 11 A.M. she was walking on Pierce Avenue, just off Damen Avenue, on her way home from school, when she passed two boys. A moment later, she was struck in the middle of her back and pushed to the ground, face forward. Her wallet, some identification cards and photographs were taken from her. She saw the faces and noticed the clothing of her attackers. When she got up, a police car approached, which she stopped. She informed its occupant, Officer Fabian, of the incident. After she went home, she was called outside by the police and was shown two boys in a car.

At this point in her testimony, when she was asked to identify respondent, a motion to suppress her identification was made and, at the hearing held on this motion, she testified as follows: Her assailants fled across Pierce to Hoyne, and she described them to Officer Fabian as being black, both about 18 years of age, weighing approximately 150 to 160 pounds and about 5'8" tall, although one may have been shorter. She noticed that one wore a long, dark red coat and that the other wore a short jacket. Later, when called from her house by Officer Fabian, she was asked in the presence of Officers Zito, Dugan and Fabian and respondent’s mother to look in the back seat of the unmarked vehicle, and in response to the officers’ questions, “Do you know them?”; “Do you recognize them?”; she answered, “It looked like the two who could have robbed me.” After looking at the boys in the car, she could have moved her head laterally from right to left and left to right, although she did not remember doing so. When she saw respondent in the car, he was wearing a long, red coat and a brown felt hat.

Jessie Mae Woods, respondent’s mother, called by him, testified she saw him in front of her apartment in a marked police car with Officer Fabian, who told her that an incident had occurred and that her son was being taken to be viewed by some people. An unmarked car arrived, and respondent was moved into that vehicle and driven about a block away. She followed in her car and was present when a young girl was brought out to the other car and she saw the girl look inside the car and, after looking at an officer, the girl shook her head from left to right in a lateral movement. She then approached Officer Zito and asked why they were holding respondent, after the girl had failed to identify him. Zito said she could take him home, but as her son started to walk away, Zito searched his pockets and found a har'd card in his wallet, having the name of “Grey”, and Zito then said, “We have to take your son to the station for further questioning.”

Officer Fabian, called by the State, testified that in response to a radio call received at about 11 A.M., he took information concerning the robbery from complainant and then drove to the comer of Schiller and Hoyne, where he parked to write out his report. There he noticed two youths, one walking north on Hoyne and the other walking east on Schiller. He stopped them and put them in the car “because at that time in the morning, it looked like they were out of school.” Later, about 11:40 A.M., when Officers Zito and Dugan arrived, the youths were transferred to their unmarked car and driven to complainant’s home for possible identification. When he observed the two boys, respondent was westbound on Schiller, and the other boy was northbound on Hoyne. Brown, brimmed hats and maxi-coats were not unusual apparel for black youths living in that area.

Officer Gregory Zito, called by the State, testified that he was northbound on Hoyne with Dugan when he observed two male Negro youths running from a fallen girl. His view was clear and unobstructed. One was a little taller than the other — with the short one wearing a maroon maxi-coat and a brown, brimmed hat, and the other wearing a black leather jacket. They gave chase, but the boys disappeared down an alley. Shortly thereafter, he received a call from Officer Fabian, who stated he had two boys in his car, and when he and Dugan arrived, he saw they were the same boys he had seen running away earlier. The youths were taken to the complainant, and she identified them as her attackers. He later identified respondent as one of the youths he had seen running from the fallen girl. When he saw the youths running from the fallen girl, she was on the ground on the north side of Pierce.

The court denied the motion to suppress complainant’s identification and, when the hearing on the supplemental petition resumed, she testified respondent was one of the persons that she identified in the police car. She also stated that from the middle of the block on Pierce one could not see to the middle of the block on Hoyne. (Police Officer Zito had testified that when traveling on Hoyne, he saw two boys running from a girl who had fallen on Pierce.)

Richard Johnson, called by the State, testified that at about 11 A.M. he was standing on the corner of Hoyne and LeMoyne when he saw two boys running down the street, one running south on Hoyne and the other west on LeMoyne. He identified respondent as one of the boys. Subsequently, he talked with Officer Zito and told him he had seen two boys running down the street.

Officer John Dugan, called by the State, testified that he was with Officer Zito and saw a woman had been knocked down and that two men started to run away from her. He identified respondent as one of them.

Respondent testified that he was not involved in tire robbery and was not on Pierce Avenue on that day. As we read his testimony, at the time of the robbery (about 11 A.M.) he was either in the Tuley High School lunchroom or in a dice game in a building next to the school. His sister testified that she saw him in the lunchroom about 11:05 A.M., and Herbert Weston testified that respondent was in the dice game at 10:35 A.M. and that he did not see him leave until 11:35 A.M. Respondent also testified that he was arrested as he was about to enter his house and that he did not see Thomas Spencer (apparently the other boy arrested with him) on that day until after he was stopped by the policeman when Spencer walked up to them. Spencer did not testify. OPINION

Respondent presents several theories in support of his contention that the court erred in denying the motion to suppress the identification testimony of complainant. In one of these, he argues that the identification was the result of an illegal arrest and detention.

In this regard, we note that a law enforcement officer may, without a warrant, take a minor into temporary custody where, with reasonable cause, the officer believes the minor to be delinquent, otherwise in need of supervision, neglected, or dependent (Ill. Rev. Stat. 1973, ch. 37, par. 703 — I), and that a minor otherwise in need of supervision is any minor subject to compulsory school attendance who is habitually truant (par. 702 — 3(b)).

Officer Fabian testified he stopped the two boys “because at that time of the morning it looked like they were out of school. So I put them in the car.” Respondent argues that although Fabian may have believed he was truant, there is no evidence in the record indicating that Fabian believed he was neglected, dependent, delinquent, or an habitual truant and, under those circumstances, he contends that Fabian lacked the reasonable cause required by statute for the initial custodial detention.

The State contends that Fabian had probable cause. In its brief here, it states “his attention was drawn to them (the two boys) initially because it was a school day and they were not in school.” The brief goes on to say, “In addition, they matched the description given by the victim of her assailants and so Fabian stopped them and placed them in his squad.”

As we view the record, it appears that Fabian did have a description of the two attackers when he first observed respondent and the other boy, who were walking towards each other on intersecting streets. However, in his testimony, he stated that he stopped them because “it looked like they were out of school.” Thus, it appears that the original detention was not the result of the descriptions in his possession but rather, because of his belief that the two boys should have been in school. The only indication in the record in support of the State’s contention that the descriptions might have had some relation to the detention appears in the cross-examination of Fabian when, in answer to the question, “Now, what led you to believe that they (the two boys) were associated with one another?”; he answered, “It just didn’t look right, and taking that report.” We cannot accept this answer as indicative of the fact that the descriptions of the boys were the basis of their detention.

Moreover, a general description is insufficient to provide the probable cause necessary to justify an arrest unless it is supported by other relative facts and circumstances known to the arresting officer. People v. Mills, 98 Ill.App.2d 248, 240 N.E.2d 302.

The only possible supportive testimony appears to be that respondent (1) was in the vicinity of the crime, which we believe is negated by the fact that he lived in the area and, in fact, was stopped by the police as he was entering his house; and (2) he was wearing a maxi-coat and a brown, brimmed hat, which has little if any value as support, in view of Fabian’s testimony that they were not unusual pieces of apparel for a black youth in that area.

In further response, the State asserts that, assuming arguendo, that Officer Fabian didn’t have traditional probable cause to arrest, he had sufficient grounds to temporarily question respondent without arresting him, pursuant to section 107 — 14 of the Code of Criminal Procedure. (Ill. Rev. Stat. 1973, ch. 38, par. 107 — 14) which, in pertinent part, provides that such investigative stops are authorized where the officer reasonably infers from the circumstances that the person is about to commit or has committed an offense, which is defined in section 102 — 15 of the same Code (ch. 38, par. 102 — 15) as any violation of a penal statute of the State.

The State then urges that respondent, by not attending school on a school day, was in violation of the provisions of article 26 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 26 — 1 et seq.) and, more particularly, section 26 — 5 which permitted Fabian to stop him and inquire as to his absence from school. We disagree for the following reasons: First, all of the penal provisions of article 26 are aimed at those individuals having “custody or control of a child” and not at the child who refuses to attend school; second, article 26 — 5 gives truant officers, not police officers, the power to investigate cases of truancy and non-attendance; and third, even assuming Fabian had the right to stop respondent and question him concerning his absence from school, there is no evidence in the record indicating that Fabian asked any questions of respondent concerning this absence or, for that matter, about anything else. The record discloses he merely stopped the youths and put them in the police car. We note also that at the time of the robbery complainant was on her way home from school and, for all that Fabian knew, respondent may have had good reason or proper excuse for not being in school, particularly in view of the fact that he was entering the house where he lived when arrested.

A police officer has probable cause to arrest a person without a warrant when the facts and circumstances within his knowledge and of which he has reasonable and trustworthy information are sufficient in themselves to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested is guilty. (People v. Fisher, 2 Ill.App.3d 7, 276 N.E.2d 103.) Whether a police officer had probable cause to arrest depends on the totality of the facts and circumstances in the given case.

Our analysis of the evidence leads us to conclude that Officer Fabian at most had only a general description of the assailants, which was not supported by other relevant facts and, under the facts and circumstances here, we believe that the description was insufficient to justify the arrest of respondent. (People v. Mills, supra.) Furthermore, from our consideration of the totality of the evidence, we are of the opinion that Officer Fabian did not have probable cause to arrest respondent.

The State further contends that even though the arrest might be considered illegal, that it did not necessarily follow that the identification testimony of complainant was inadmissible. It cites People v. Pettis, 12 Ill.App.3d 123, 298 N.E.2d 372. There, defendant was arrested on charges of burglary and impersonating an officer. While in illegal custody, a photograph was taken and kept on file which subsequently was shown to the victim of and a witness to another crime, who identified defendant from the photograph as the person who committed the other crime. The trial court rejected the identification testimony because it was based on the photograph taken as the result of the previous illegal detention. This court reversed, holding the facts and circumstances established that the illegal arrest was not prompted by a desire for the photographs, and concluded therefore that the identification testimony should have been admitted because it “was not acquired by exploiting defendant’s illegal arrest.”

In determining whether the evidence sought to be suppressed was the direct result of the original illegal act, the Pettis court quoted from Wong Sun v. United States, 371 U.S. 471, 488, 9 L.Ed.2d 441, 83 S.Ct. 407, where the Supreme Court stated that the “* * * question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’”

The State argues here that the in-court identification of respondent cannot be classed as a direct result of the illegal arrest, since the arrest and the initial identification by complaint took place 6 months before the in-court identification. We do not find this argument persuasive. We note that at the time of her initial identification complainant, when asked whether she recognized the boys, stated, “It looked like the two who could have robbed me”, and at the time of her in-court identification, she pointed out respondent as one of the persons she had seen in the police car at the time of her initial identification. In People v. Bean, 121 Ill.App.2d 332, 257 N.E.2d 562, the court stated, at page 335:

“The exhibition of defendant to the victim was a direct consequence of the admittedly unlawful detention of his person. Indeed, the identification would not otherwise have occurred.
We hold the identification of defendant to be a product of the unlawful seizure of his person and consequently all testimony relating thereto improperly admitted into evidence against him. Further, all subsequent identifications of defendant by the victim, including in-court identification, are directly traceable to the unlawful detention of defendant."

We believe that the in-court identification was far less than positive and the direct result of the illegal arrest and that the 6 months lapse of time did not purge the identification of its primary taint. In view thereof, we conclude the court erred in refusing to suppress the identification testimony of complainant.

Respondent also argues that he was not proved delinquent beyond a reasonable doubt. The quantum of proof required in a juvenile delinquency proceeding is the same as that required for conviction in a criminal case. (In re Urbasek, 38 Ill.2d 535, 232 N.E.2d 716.) We note section 701 — 4 and 704 — 1 of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, pars. 701 — 4 and 704 — 1) provides that adjudicatory hearings on petitions of the type involved here are to determine whether allegations of delinquency are proved beyond a reasonable doubt.

Here, complainant did not see which of the two persons knocked her down. She did not say that more than one person knocked her down nor could she say which of the two removed the articles from her possession. She saw two boys running away from her, and when she viewed the boys in the police car, she said, “It looked like the two who could have robbed me,” and her in-court identification of respondent was that he was one of the persons she had identified in the police car. Officers Zito and Dugan did not see either boy knock her down; they saw two boys running from where complainant had fallen, and they later identified the two boys in the police car as those they had seen running from the scene. Richard Johnson saw two boys running but did not see the girl knocked down. It is also noted that the stolen articles were not recovered.

Thus, we see that the only evidence of involvement of respondent was his presence and the fact that he ran away. We believe that such evidence is slight proof, if any, that respondent was the person who either knocked down or robbed complainant and, in any event, it falls far short of proof beyond a reasonable doubt.

Neither do we believe, as the State suggests, that the proof was sufficient to show accountability on the part of respondent by his failure to offer resistance or objection to the robbery. Section 5 — 2 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 5 — 2) provides that a person is legally accountable for the conduct of another when:

“(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

Again, we note that the only evidence of respondent’s involvement was his presence and flight. There is no other evidence in the record to indicate intent to promote or facilitate the commission of the offense or that he solicited, aided, abetted, agreed to or attempted to aid the person who committed the offense.

Mere presence at the scene of the crime is insufficient to establish accountability (People v. Rudolph, 12 Ill.App.3d 420, 299 N.E.2d 129), and we believe that presence at the scene together with flight, in the absence of other circumstances indicating a common design to do an unlawful act, does not establish accountability.

For the reasons stated, the judgment will be reversed. In view thereof, it will not be necessary to consider the remaining matters raised by respondent.

Reversed.

DRUCKER and LORENZ, JJ., concur.


author: Mr. JUSTICE JOHNSON

text:
    Joseph Wisniewski, Plaintiff-Appellee, v. The City of Chicago et al., Defendants-Appellants.
    (No. 58187;
    First District (4th Division)
    June 26, 1974.

      Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Daniel Pascale, Assistant Corporation Counsel, of counsel), for appellants.
    Chester A. Lizak and Stanley Jakala, both of Chicago, for appellee.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

This action was brought to recover damages as the result of an alleged assault upon the person of the plaintiff by an on-duty Chicago police officer. The jury rendered a verdict for the plaintiff upon which the court entered judgment of $3500 compensatory damages against the City of Chicago and David Baranski, and $10 exemplary damages against David Baranski individually.

On appeal, the sole issue raised is whether the verdict was against the manifest weight of the evidence.

The plaintiff testified that on the morning of February 23, 1967, about 2:30 A.M., he left a tavern and drove to a restaurant located on Ashland and 46th Street. As the plaintiff approached the restaurant, he was called by Officer David Baranski, an on-duty police officer. The plaintiff testified that as he walked toward Officer Baranski, the officer grabbed him, and took his arms and put them around his back. The plaintiff further stated that Officer David Baranski handcuffed him, placed his face on the hood of the squad car, and proceeded to beat him with a blackjack. Finally, while sitting in the back of the squad car, the plaintiff testified that he attempted to convince Officer David Baranski that a mistake had been made. Officer David Baranski laughed, and hit the plaintiff again knocking him unconscious.

The City, on the other hand, contends that Officer David Baranski was called to the vicinity of 46th and Ashland to answer a complaint at the Coney Island Restaurant. After arriving at the scene of the disturbance, the officer questioned Mr. Edward McCarthy, the person who summoned police and a waiter in the restaurant. Mr. McCarthy described the incident that occurred earlier in the restaurant, and stated that the plaintiff had been bothering a group of female patrons. Having apparently provoked the women by his conduct toward them, a rather large woman rose up and pushed the plaintiff back into a booth, splitting the booth down the seam. Immediately after the preceding events took place, the plaintiff left the restaurant.

Officer David Baranski testified that as he prepared to walk out of the restaurant, he saw a white male looking in the front window of the restaurant. At that time, one of the waiters pointed in the direction of the window and stated that the person at the window was Mr. Wisniewski, the man involved in the disturbance. Officer David Baranski left the restaurant, and called to the plaintiff telling him he wanted to question him. Officer David Baranski then stated that Mr. Wisniewski used abusive language and pushed him against the hood of a parked automobile. The officer testified that he regained his balance and pinned Mr. Wisniewski’s aims at his sides. Shortly thereafter, Officer David Baranski was assisted by two police officers who arrived on the scene.

The three police officers restrained the plaintiff. Then, Officer David Baranski stated that Mr. Wisniewski was handcuffed and placed in the squad car with Officers Frank Baranski and Anthony Borski. These two officers drove the plaintiff to the Deering Police Station. Having arrived at the station, the plaintiff, still under the influence of alcohol, fell several times from a chair on which he was sitting while awaiting processing. The defendants attribute the plaintiff’s injuries either to the altercation outside the restaurant, or to the plaintiffs falls from the chair during processing.

At the close of the evidence, the jury returned a verdict for the plaintiff. The City of Chicago appeals and requests that the order of the circuit court in favor of the plaintiff in this cause be reversed or in the alternative be reversed and remanded for a new trial.

The City contends that the verdict in the present case is against the manifest weight of the evidence inasmuch as the plaintiff failed to establish his case by a preponderance of the evidence. The City points out that it does not base its contention that the verdict of the jury is against the manifest weight of the evidence on the simple premise that the number of the City’s witnesses surpasses the number of the plaintiff’s witnesses; but, the City bases its contention on the fact that a plaintiff in a civil case has the burden of proving his case by a preponderance of the evidence. The City argues that a decision for the plaintiff is unreasonable, since the plaintiff cannot create a preponderance of the evidence by his testimony alone. To support this position the defendants cite Feldman v. Karn (1927), 247 Ill.App. 48, where there was a bench trial, and Williamson v. Hirsh, Stein & Co. (1909), 147 Ill.App. 500, where there was a jury trial.

In Illinois the law is well settled that a reviewing court cannot substitute its judgment for that of a jury in passing on the weight of the evidence. (Whitman v. Prescott (1967), 80 Ill.App.2d 49, 58, 225 N.E.2d 384, 388.) A reviewing court may overturn a jury’s verdict only if it is contrary to the manifest weight of the evidence. (Whitman v. Prescott (1967), 80 Ill.App.2d 49, 58, 225 N.E.2d 384, 388; Graf v. Ford Motor Co. (1968), 102 Ill.App.2d 390, 399, 243 N.E.2d 337, 341.) By manifest weight is meant the clearly evident, plain and indisputable weight. Whitman v. Prescott (1967), 80 Ill.App.2d 49, 58, 225 N.E.2d 384, 388; Graf v. Ford Motor Co. (1968), 102 Ill.App.2d 390, 399, 243 N.E.2d 337, 341.

We feel that the evidence in this case was sufficient to support the jury’s verdict for the plaintiff. The plaintiffs testimony was sufficient to establish that his injuries resulted from a beating he received from Officer David Baranski, although defense witnesses testified to the contrary. It is for the jury alone to determine the credibility of the witnesses, and the weight of the evidence on controverted questions of fact. (Brayfield v. Johnson (1965), 62 Ill.App.2d 59, 63, 210 N.E.2d 28, 30.) The jury observed the demeanor and behavior of all the witnesses, and listened to their testimony, but decided to accept the plaintiff’s version. In our judgment there was sufficient evidence in the record to support the jury’s findings.

Next, the appellants rely on Peaslee v. Glass (1871), 61 Ill. 94. In Peaslee the court held:

“There are very few cases in which a jury should find a verdict for the plaintiff upon his unsupported testimony alone, when that testimony is positively contradicted by the defendant.” 61 Ill. 94 at 95.

The Peaslee decision, however, has been criticized consistently and ignored. (Hately v. Kiser (1911), 162 Ill.App. 542; Sears, Roebuck & Co. v. Mears Slayton Lumber Co. (1922), 226 Ill.App. 287; and Arnold v. Carpenter (1967), 83 Ill.App.2d 343, 227 N.E.2d 543.) The court said in Arnold:

“Defendant, relying upon Peaslee v. Glass, 61 Ill. 94 (1871), argues that the verdict here for plaintiff is based solely upon plaintiff’s own testimony as to the terms of the employment contract, and cannot be allowed to stand in view of ‘defendant’s counterbalancing and equally credible testimony.’ That this is not the law in Illinois, or even the meaning of Peaslee v. Glass, supra, was pointed out in Sears, Roebuck & Co. v. Mears Slayton Lumber Co., 226 Ill.App. 287 (1922), where the court of review concluded that it would not be justified in setting aside a verdict as being contrary to the manifest weight of the evidence merely because a verdict for plaintiff is supported by one credible witness who is directly contradicted by an equally credible witness for defendant. It is for the jury to determine the credibility of witnesses and to attach the weight to be given their testimony. A verdict based on conflicting evidence, and approved by the trial judge, as here, will not be disturbed on appeal unless palpably erroneous, that is, unless an opposite conclusion is clearly evident. Brayfield v. Johnson, 62 Ill.App.2d 59, 210 N.E.2d 28 (Fifth District, 1965). We are satisfied, from our examination of this record, that the verdict, insofar as it finds for the plaintiff on the issue of the existence and terms of the oral contract, is founded in the evidence. The jury heard and observed the litigants while testifying and saw fit, reasonably we think, to believe plaintiff.” 83 Ill.App.2d 343 at 346, 227 N.E.2d 543 at 545 — 46.

In the instant case, as in Arnold, the plaintiff’s credible witnesses were contradicted by equally credible witnesses for the defendant. Furthermore, as was pointed out in Arnold, and, as was the case here, the jury determined the credibility of the witnesses and attached weight to their testimony. Finally, in spite of the fact the verdict in the instant case was based on conflicting evidence, it was approved by the trial judge. Therefore, following Arnold, the jury’s verdict should not be disturbed, since it is neither palpably erroneous, nor is an opposite conclusion clearly evident.

Finally, the defendants argue that tire number of witnesses contradicting the plaintiff is a factor to be considered, although, they admit, it does not conclusively establish the weight of the evidence. To support this position the defendants cite McFadden v. Chicago Rock Island & Pacific R.R. Co. (1909), 149 Ill.App. 298.

This court will not hold that the litigant with the largest number of witnesses testifying ipso facto wins. That would be an anomalous result. This court, having reviewed the record, is sure that the jury considered the testimony of all the witnesses and returned a proper verdict.

Therefore, we feel that it would be inappropriate to invade the province of the jury and reverse the trial court, since the verdict was "not against the manifest weight of the evidence.

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

Appellee requests that this court pay him the additional sum of $351 in accordance with section 23 of the Act relating to costs (Ill. Rev. Stat. 1971, ch. 33, § 23) and Manchester Insurance & Indemnity Co. v. Strom (1970), 122 Ill.App.2d 183, 258 N.E.2d 150. Section 23 provides:

“In every such case, if the judgment or decree be affirmed in the whole, the party prosecuting such appeal shall pay to the opposite party a sum not exceeding 10% on the amount of the judgment or decree so attempted to be reversed, at the discretion of the court, and in addition to the costs shall have judgment and execution therefor: Provided, the court shall be of opinion that such appeal was prosecuted for delay. As amended by act approved Aug. 24, 1965. L. 1965, p. 3417.”

We find that the instant appeal was neither prosecuted for delay as stated in the aforementioned statute, nor was it prosecuted in bad faith as was the case in Manchester.

Plaintiffs request for an award of an additional sum and attorneys’ fees is denied.

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

Affirmed.

DIERINGER and BURMAN, JJ., concur.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    Florence Foerster, Plaintiff-Appellee, v. Illinois Bell Telephone Company, Defendant-Appellant.
    (No. 58781;
    First District (4th Division)
    June 26, 1974.

      L. Bow Pritchett, Edward Butts, and Richard G. Siegel, all of Chicago, for appellant.
    Robert F. Meersman, of Mt. Prospect, for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The appeal in this case arises out of injuries sustained by the plaintiffappellee in an accident that occurred at her place of employment, The Real Estate News Co., on May 4, 1966. In a jury trial a verdict was returned against the defendant and the jury found that the defendant’s negligence was the proximate cause of the plaintiff’s injuries. The defendant contends that numerous errors occurred during the course of the trial and that the cumulative effect of these alleged errors was to deprive it of a fair trial. It is maintained by the defendant that the trial court erred in forcing it to present its proof out of turn so that the plaintiff’s medical expert could testify when he found it convenient. The defendant also contends that the trial court erred in sua sponte interrupting defense counsel’s closing argument and in refusing to give the jury certain instructions that were tendered by defendant. A final contention of the defendant is that the trial court erred in what defendant characterizes as closely monitoring and interrupting witnesses testifying for the defense. We find no merit in these contentions.

The plaintiff arrived at work on May 4, 1966, at approximately 9 A.M. and commenced her duties as a telephone solicitor for the Real Estate News Co. In one of the calls made by the plaintiff the recipient stated that he had subscribed to the magazine published by Real Estate News and inquired if the company had received his check. The plaintiff did not have this information and said that she would have to verify it with a co-employee by the name of Tina. At approximately 10:30 or 11 A.M. the plaintiff left her desk and walked into the reception area where Tina’s desk was located. At this time plaintiff noticed two men from the Illinois Bell Telephone Co. working behind Tina’s desk.

The plaintiff testified that she walked about 15 feet from the entrance of the reception room to Tina’s desk and that the reception room was well lighted. She was not carrying anything and did not have any trouble seeing what was ahead of her. She stated that there was nothing foreign on the reception room floor when she arrived at work in the morning and that she did not notice any cables as she walked into the room. After the plaintiff received the information she desired from Tina, she turned to walk away from Tina’s desk. Plaintiff stated that telephone cables were wrapped around her foot and that she was thrown approximately 10 to 15 feet across the room. She did not fall but at this time Tina hollered “My God” and the plaintiff turned and her shoulder hit a wall. The plaintiff testified that after she got her foot free from the wires she walked back to Tina’s desk and picked up a telephone that had fallen off the desk. Plaintiff then walked back to her desk and tried to compose herself. She stated that it took about an hour before she could begin working again but that she worked the remainder of the day.

The reception room walls were described by the plaintiff as beige in color and the floor was also beige. The telephone cables were beige and Tina’s desk was grey. The plaintiff stated that after she tripped she noticed that large telephone cables were on the floor by Tina’s desk. She described them as being % to 2 inches thick and that they were hooked up to the telephone on Tina’s desk. She stated that it looked as if there were 1000 feet of cable on the floor.

The plaintiff sustained injuries to her left shoulder and right ankle and left her job on June 3, 1966, to receive medical attention. She was treated by various doctors and incurred various medical expenses. Plaintiff did not begin working again until October of 1967.

The defendant called as a witness Phillip Buckingham who was a private branch exchange installer for the defendant. Mr. Buckingham testified that he had 14 years experience as a P.B.X. installer and that in early May of 1966 he was at the Real Estate News Co. office installing a call director. He stated that the cable utilized for such an installation was approximately as thick as his thumb and that it was either beige or grey in color depending upon what color the subscriber selected. Buckingham testified that he was working in the area of tire reception room desk but that no cable for the job was stored in the reception area. Buckingham identified certain photographs of the reception room at Real Estate News and stated there was a typewriter, a clock, and a fan on the reception desk. The photograph also depicted an adding machine or comptometer on the desk but Buckingham could not recall if this machine was on the desk on the date in question. He was shown a piece of outside cable or inside building cable by defendant’s attorney and stated that he did not use any of this type cable as a P.B.X. installer. Upon cross-examination Buckingham stated that he was installing about 45 or 50 feet of cable to the call director. He did state that he observed an accident during the time he was at the Real Estate News office.

The defendant contends the trial court abused its discretion in forcing it to put on its proof out of turn so that the plaintiffs medical expert could testify when he found it convenient. The trial in the instant controversy began on a Thursday and concluded on the following Monday. On Friday, the second day of trial, the trial court stated that it had been informed by counsel for the plaintiff that he could not go forward with his medical testimony at that time and the trial court ruled it would proceed with the medical testimony on Monday at 9:30 A.M. The court stated:

“I am going to permit, over the objection of counsel for the defendants, for him to conclude his case on the question of liability, and request counsel for the defendant to proceed with this case on the question of liability and grant plaintiffs counsel leave to conclude his case on any medical matters on Monday morning, and also permit counsel for the defendant, if he has any rebuttal or conflicting medical testimony, to put on his medical testimony Monday morning. This is over the objection of counsel.”

The defendant maintains that the trial court erred because its ruling was tantamount to ordering a split issue trial and because the plaintiff failed to show due diligence and due cause.

A split issue trial is one in which evidence on the issue of liability is heard and then the trier of fact renders a decision on that question. If there is a finding of no liability the trial terminates. However, if liability is found then either the same or another jury hears evidence on the question of damages and a verdict is rendered on that question. It was held in Mason v. Dunn (1972), 6 Ill.App.3d 448, 285 N.E.2d 191, that a trial court does not have the inherent authority to sever the issues of liability and damages in a single action. The trial court’s ruling in the case at bar, which allowed the plaintiff to produce her medical testimony after the defendant presented its evidence on the liability issue did not constitute ordering a split issue trial. All of the evidence was heard before the jury retired to deliberate the issues of liability and damages. There was not a separate verdict as to liability and then a consideration of the damages issue. Therefore, this was not an impermissible split issue trial.

A trial court has a great deal of discretion in regards to controlling the order in which evidence is produced. As stated in McGlaughlin v. Pickerel (1943), 381 Ill. 574, 583, 46 N.E.2d 368, 373:

“The order of the introduction of evidence rests in the sound discretion of the trial court and the exercise of it will not be interfered with except for clear abuse. [Citations.]”

And as stated by Wigmore:

“It is obvious that, while a usual order for introducing topics of evidence and witnesses is a desirable thing, a variation from that order, which is often equally desirable, will not necessarily cause direct harm; it can do so only where it tends to confuse the jury, or where it misleads the opponent or finds him unprepared to meet it.” (VI Wigmore on Evidence, § 1867.)

There is no indication in the case at bar that the jury was confused or that the defendant was misled or unprepared to meet the trial court’s ruling which varied the normal order for presenting the evidence. Defendant maintains it would have been more appropriate for the trial court to recess until after the plaintiff was able to produce her medical expert. However, as stated in Chwala v. Herbert (1908), 138 Ill.App. 371, 372, “The conduct of trials as to permitting delay must necessarily be left to the sound discretion of trial courts. Brewer v. N.U. Bldg. Ass’n., 166 Ill. 221.” It is also important to note that the trial court in making its ruling did state that the defendant would be allowed to introduce any conflicting medical evidence it had after the plaintiff’s medical expert testified. We are of the opinion that the trial court did not abuse its discretion in changing the normal order of proof and there was no prejudice to the defendant by the ruling.

The defendant’s next contention is that the trial court erred in sua sponte interrupting its defense counsel’s closing argument and in sustaining objections to it by the plaintiff. Before considering each specific instance of alleged impropriety, it is first necessary to reiterate certain well established principles of law concerning closing arguments. “The purpose of a closing argument is to assist the jury in arriving at a verdict, with all facts presented fairly. Considerable latitude of expression on anything that is in evidence must be allowed counsel.” (Hopwood v. Thomas Hoist Co. (1966), 71 Ill.App.2d 434, 443, 219 N.E.2d 76, 81.) The closing arguments of counsel must be confined to those matters that are in evidence or admitted and uncontroverted. When counsel oversteps the boundaries of proper argument, the trial judge need not wait for opposing counsel to object but under appropriate circumstances the court can halt the improper argument. As stated in England v. Mississippi Valley Traction Co. (1908), 139 Ill.App. 572, 580, “It is the duty of the court to control counsel within reasonable bounds and to restrict the argument to the evidence in tire case.”

During the direct examination of the plaintiff by her attorney the following questions and answers were given:

“Q. Mrs. Foerster, was there any warning or anything by any-was there-did you receive any warning that these men were working there?
A. No. I didn’t.
Q. Did anybody say anything to you to the effect to ‘Look out’ or anything?
A. No.”

In its closing argument the defendant sought to argue to the jury that if a warning were appropriate the plaintiff’s employer should have warned her and provided her a safe place to work. The trial court on its own did not permit the defense counsel to proceed with this line of argument. We are of the opinion that there was no issue in this case as to the plaintiff’s employer’s responsibility to warn the plaintiff and provide her with a safe place to work. The pleadings did not raise the issue and the questions and answers quoted are insufficient to raise the issue. Therefore, the trial court was correct in stopping the defendant from alluding in closing argument to a matter that went beyond the evidence in the case.

The defendant maintains that the trial court erred in not permitting defense counsel to argue to the jury the plaintiff’s failure to produce as a witness the receptionist, Tina. The law is that “[t]he failure of a litigant to call a witness within the control of such litigant is a proper subject of comment. [Citations.]” (In re Estate of Sandusky (1943), 321 Ill.App. 1, 16, 52 N.E.2d 285, 291.) However, before the defendant could comment upon the plaintiff’s failure to produce Tina, the record must show that Tina was under the control of the plaintiff or not as available to the defendant. (Bunton v. Illinois Central Railroad Co. (1957), 15 Ill.App.2d 311, 146 N.E.2d 205; Wofford v. DeVore (1966), 73 Ill.App.2d 92, 218 N.E.2d 649; Goshey v. Dunlap (1973), 16 Ill.App.3d 29, 305 N.E.2d 648.) There was no such evidence in the record and therefore, the trial court did not err in not permitting the defendant to make this argument.

The defendant also maintains that the trial court erred in sustaining objections to defense counsel’s argument as to how the plaintiff had characterized the cable and when defense counsel hypothesized as to how the plaintiff may have gotten her foot caught in the cable attached to the phone on Tina’s desk. In regards to the cable defense counsel sought to argue that plaintiff had described it as a 900 paracable. Defense counsel sought to hypothesize that after the plaintiff received the information she desired from Tina, plaintiff called the man who she had previously called and then tripped over tiie phone. The objections in both instances were that there was no such testimony and the trial court sustained them. “It is well established that counsel’s arguments are limited to the evidence presented. He cannot testify or supply new facts during the closing arguments. Owen v. Willett Truck Leasing Corp., 61 Ill.App.2d 395, 209 N.E.2d 868.” (Ferrer v. Vecchione (1968), 98 Ill.App. 2d 467, 474, 240 N.E.2d 439, 442.) A perusal of the record indicates there was no evidence upon which either of these arguments could be based. Defense counsel attempted to make statements that were not based on evidence in the record and the trial court did not err when it sustained the objections to these statements.

Defendant maintains the trial court erred in not permitting defense counsel to utilize during closing argument defense exhibits 8 and 10 for identification. These exhibits had not been admitted into evidence because defense counsel had not offered them. It was, therefore, not error for the trial court to sua sponte prevent defense counsel from using them. See Parrucci v. Kruse (1956), 12 Ill.App.2d 30, 138 N.E.2d 91.

In the case at bar the plaintiff did not introduce into evidence any photographs of the scene of the accident. During defendant’s closing argument defense counsel stated, “[I]t wasn’t convenient for them to produce photographs for you.” Plaintiff’s counsel objected to this remark and the trial court stated, “There’s no need for that type of comment, counsel.” Defendant now contends the trial court’s statement circumscribed the defense’s argument and had a prejudicial effect. We do not agree. The defense counsel’s remark was improper and the trial court’s admonishment came within its duty to control closing arguments and insure that each side has a fair trial.

The defendant also contends that the trial court erred when during the plaintiff’s rebuttal argument and in response to an objection by defense counsel, the court characterized Mr. Buckingham’s testimony in regards to what was on the receptionist’s desk as “loose”. This characterization was improper because as stated in Piechalak v. Liberty Trucking Co. (1965), 58 Ill.App.2d 289, 300, 208 N.E.2d 379, 384, “It is always hazardous for a judge in a jury trial to comment on evidence since the jury heard all the evidence and solely had the duty of evaluating it.” However, the court also stated:

“A reviewing court does not determine whether a record is completely free of error; its function is to determine whether there was error which might prejudice the rights of a party. We hold that these comments by the judge could have had no significant effect on the ultimate conclusion in this case.” (Piechalak, supra, at 300.)

Similarly, in the case at bar it was improper for the trial court to characterize the testimony of Buckingham as “loose” but this single, isolated comment could not have had any significant impact on the jury’s verdict.

The defendant’s next contention is that the trial court erred in refusing to submit to the jury two of the instructions tendered by the defendant. One instruction stated, “The occupant of property owed the plaintiff the duty to exercise ordinary care to keep the property reasonably safe for use by the plaintiff.” The other instruction in substance stated that if the jury decided that the defendant was negligent and if its negligence was the proximate cause of the injury to the plaintiff it would not be a defense that something else may also have been a cause of the injury but if the jury decided that the sole proximate cause of the plaintiff’s injury was something other than the conduct of the defendant then the verdict should be for the defendant. The defendant argues that these instructions should have been given in accordance with its theory that the plaintiffs employer had a duty to provide the plaintiff with a safe place to work. It is axiomatic that a party has a right to have the jury instructed on his theory of the case but there must be an evidentiary basis for the instruction. (Sims v. Chicago Transit Authority (1955), 7 Ill.App.2d 21, 129 N.E.2d 23; Wrighthouse v. Brown (1964), 52 Ill.App.2d 191, 201 N.E.2d 752; Berg v. Collier (1965), 60 Ill.App.2d 145, 208 N.E.2d 353.) The record in the case at bar lacks the evidence that would have justified the defendant’s instructions. As stated in Starch v. Chicago & North Western Ry. Co., 4 Ill.2d 611, 620-621, 123 N.E.2d 826, 832 (1954):

“The rule requiring an employer to furnish his employees with a reasonably safe place to work imposes the ‘duty only of keeping the premises physically safe and has no reference to anything else,’ (Fisher v. Chicago, Rock Island and Pacific Railway Co., 290 Ill. 49, 58,) and an instruction on that rule where there is no evidence tending to establish a violation of such duty is erroneous. (Keefe v. Armour & Co. 258 Ill. 28, 34, 35.)”

In light of the lack of evidence to support the defendant’s tendered instructions the trial court did not err in refusing to give them to the jury.

The defendant’s final contention is that the trial court erred in closely monitoring and interrupting the testimony of the witnesses for the defense. Defendant maintains this conduct was prejudicial because it conveyed to the jury the trial court’s disapproval or disbelief of the defense witnesses. We do not agree and are of the opinion that there was no improper conduct on the part of the trial court.

During the testimony of Mr. Buckingham, the defense counsel sought to have admitted into evidence certain photographs of the Real Estate News office. Buckingham was asked by defense counsel if he recognized the pictures and he responded that they were pictures of the office at Real Estate News. Defense counsel then asked to have the photographs admitted into evidence and the plaintiff’s attorney objected on the ground of insufficient foundation. The trial court then asked Buckingham if the pictures portrayed the office as it appeared on the date of the accident and if they truly and accurately depicted the area of the office in question. The plaintiff’s attorney was then permitted to cross-examine Buckingham as to the foundation and then the photographs were admitted into evidence. The defendant maintains this sequence of events was erroneous because the jury may have doubted the validity of the photographs due to the court’s entry into the proceedings. The prerequisites for admitting photographs into evidence were well stated in Kooyumjian v. Stevens (1956), 10 Ill.App.2d 378, 388, 135 N.E.2d 146, 151:

“In order to have a photograph admitted in evidence it is necessary that the photograph be identified by a witness as a portrayal of certain facts relevant to the issue and verified by such witness on personal knowledge as a correct representation of the facts. The witness need not be the photographer, nor need he know anything of the time or condition of the taking, but he must have personal knowledge of the scene or object in question and testify that it is correctly portrayed by the photograph. McCormick on Evidence, sec. 181; Brownlie v. Brownlie, 357 Ill. 117.”

The trial court’s questions were merely supplying the necessary foundation for admission of the photographs into evidence and should have been supplied by the defense counsel himself. It is also not improper for a trial court to allow the party opposing the admission of the photographs the right to cross-examine the witness whose testimony provides the foundation for the photographs before they are admitted into evidence. (See People v. King (1963), 29 Ill.2d 150, 193 N.E.2d 790.) The defendant’s contention on this point is totally without merit.

The defendant also maintains the trial court erred when it interrupted the testimony of two other defense witnesses. We deem it unnecessary to relate the specifics of these two instances because in each the trial court was only seeking to determine the materiality and relevancy of the testimony the defense counsel was seeking to elicit. The principle of law that only evidence that is material and relevant to the issues can be brought forth is well established and no citation of authority is necessary. The trial court, therefore, did not err in determining the materiality and relevancy of the testimony before allowing defense counsel to proceed.

The defendant contends that as a result of all the actions previously mentioned the trial court overstepped the boundaries of judicial propriety and did not remain neutral. We do not agree and are of the opinion that the trial court’s questioning of witnesses and interrupting their testimony was warranted and proper. “While it is true tire court should not convey an impression to the jury by its questions, nevertheless it has considerable latitude in questioning witnesses. (People v. Limeberry, 298 Ill. 355.)” (People v. Filas (1938), 369 Ill. 51, 55, 15 N.E.2d 496, 498.) And as stated in People v. Trefonas (1956), 9 Ill.2d 92, 100, 136 N.E.2d 817, 821, “The extent to which a judge may indulge in the examination of witnesses largely rests in his discretion but in its exercise he must not forget the function of a judge and assume that of an advocate.” In the case at bar the trial court did not become an advocate nor did it abuse its discretion.

After a thorough review of the record and careful consideration of the issues presented by the defendant we cannot agree that error crept through the entire trial and deprived the defendant of a fair trial. We are, therefore, of the opinion that the judgment of the trial court should be affirmed.

Judgment affirmed.

BURMAN and JOHNSON, JJ., concur.