text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Laundra Webb et al., Defendants-Appellants.
    (No. 59425;
    First District (2nd Division)
    January 14, 1975.

      James J. Doherty, Public Defender, of Chicago (Susan K. Horn and George L. Lincoln, Assistant Public Defenders, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Ellis B. Levin, and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


source: Caselaw Access Project

author: Mr. JUSTICE STAMOS

license: Public Domain

text:
    Romey Joseph, a Minor, by his mother and next friend, Layla Joseph, Plaintiff-Appellee, v. Paul Luke, Jr., Defendant-Appellant.
    (No. 60264;
    First District (2nd Division)
    January 14, 1975.
    Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago (John J. Corbett, of counsel), for appellant.
    Baskin, Server, Berke & Rosenbloom, of Chicago (Carl J. Cipolla, of counsel), for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

In this personal injury action, the jury returned a verdict for plaintiff, Romey Joseph, a minor, by Layla Joseph, his mother and next friend, against defendant, Paul Luke, Jr., in the amount of $1158.25. At trial, plaintiff had introduced medical bills totaling $1495.05 incurred as a result of his injuries. Plaintiff filed a post-trial motion for a new trial solely on the issue of damages or, in the alternative, for a new trial generally. The motion for a new trial on the issue of damages was allowed, and we granted leave to appeal. Ill. Rev. Stat. 1973, ch. 110A, par. 306.

Plaintiff-appellee has failed to file an appearance or brief in this matter. Under such circumstances we are not required to consider the merits of the appeal, and where appellant has complied with all the requirements for perfecting an appeal, we are permitted in our discretion to summarily reverse. (Georges v. Mallare, 18 Ill.App.3d 907, 310 N.E.2d 754.) Nevertheless, this court may consider the merits of the appeal, and in view of the nature and circumstances of this case, we choose to do so.

This action arose when the minor plaintiff was struck by an automobile operated by defendant. The incident occurred at approximately 6 P.M. on April 23, 1970, at 1435 W. Carmen, Chicago, Illinois. The impact took place in the middle of the block with' automobiles parked on each side of the street. Plaintiff was on foot and the evidence is in some dispute as to whether plaintiff darted out from between parked cars or had been standing on the street when struck.

Plaintiff related that he was northbound when he entered the street from between parked cars. He was not running, but walked around one of the parked cars to its side in the street and came to a stop approximately 1 foot from the parked car. He stood in the street facing the side of that parked car (southbound) for an unknown period of time and was struck by defendant’s car. He next remembers awaking in the hospital.

The doctor who' treated plaintiff in the hospital took a medical history from plaintiff during which plaintiff said he “ran across the street trying to escape from some boys who were after him.”

A Chicago police officer investigated the accident and found parked cars on both sides of the street. It was a clear day, still daylight, and the streets were dry. He expressed his opinion that defendant was traveling between 20 and 25 miles per horn- before the impact.

Defendant testified that he was driving westbound to his fiancee’s home at 1462 W. Carmen at no more than 25 miles per hour. He first saw plaintiff when plaintiff ran into the street from between parked cars, approximately 1 or 1% car lengths in front of defendant’s car. He immediately applied his brakes and sounded his horn. His left front fender struck plaintiff and his car stopped approximately two feet past the point where plaintiff was struck. Plaintiff was running from the first instant defendant saw him until plaintiff was struck.

One eyewitness testified that plaintiff ran into the street from between parked cars. Another witness did not see the impact but testified that she saw plaintiff standing in the street alongside a parked car, facing south, for at least 20 seconds prior to the accident.

Plaintiff introduced into evidence a total of $1355.05 in paid medical bills and an unpaid doctor bill in the amount of $140. The jury returned a verdict for the plaintiff in the amount of $1158.25.

Plaintiffs post-trial motion sought a new trial on the issue of damages only or, in the alternative, for a new trial generally. All of the grounds urged in support of that motion dealt with the question of alleged inadequacy of the verdict. The trial court granted a new trial on the issue of damages only, and we granted leave to appeal from that order.

The only issue raised on appeal is whether the trial court properly ordered a new trial solely on the issue of damages. Defendant argues that in light of the evidence presented at trial tire jury’s verdict was a compromise on the issue of liability, and thus, it was error to order a new trial solely on the issue of damages. This exact issue was before this court in Gainer v. Bates, 14 Ill.App.3d 297, 302 N.E.2d 463. The language we used there is appropriate here.

“A motion for a new trial is addressed to the discretion of the trial judge and his decision should not be reversed except for an abuse of discretion which must affirmatively appear in the record. (Potter v. Ace Auto Parts and Wreckers, Inc. (1964), 49 Ill.App.2d 354, 199 N.E.2d 619.) A verdict should be vacated and a new trial granted for inadequacy of damages where it is clear that an injustice has been done or where it is apparent that the jury did not consider proper elements of damage. Kinsell v. Hawthorne (1960), 27 Ill.App.2d 314, 169 N.E.2d 678.
It is otherwise; however, if the verdict is a compromise between a plaintiffs damages and his own negligence. It would be unfair to permit a new trial on the question of damages alone and force a defendant to trial with the issue of negligence foreclosed to him when the verdict against him on that issue was unjustified. A new trial may be granted for damages alone only where ‘the damage issue is so separable and distinct from the issue of liability that a trial of it alone may be had without injustice.’ (Paul Harris Furniture Co. v. Morse (1956), 10 Ill.2d 28, 139 N.E.2d 275.) A court may order a new trial as to damages where the evidence of liability is so clear that there is no real issue on this point for a second jury to try. (Brunner v. Slupe (1972), 8 Ill.App.3d 924, 290 N.E.2d 327.) It may not order a new trial on damages alone where it appears that the damages awarded by the jury were a compromise on the issue of negligence. Paul Harris Furniture Co. v. Morse; King v. City of Chicago (1964), 53 Ill.App.2d 484, 202 N.E.2d 839.” (14 Ill.App.3d 297, 299-300.)

As in Gainer, the principles outlined above require a reversal of the order granting a new trial.

In the instant case, there can be no dispute that the jury’s award was not in accord with the proof of damages. However, the evidence presented at trial leads to the conclusion that the jury’s award was the result of a compromise between plaintiff’s injuries and his conduct at the time of the accident, and not because the jury failed to consider the proper elements of damage.

At trial there was evidence that plaintiff admitted to his treating physician at the hospital that he ran across the street. This was corroborated by an independent eyewitness. Moreover, it is uncontradicted that defendant was driving no faster than 25 miles per hour. And yet, according to plaintiff, he was struck while standing on the south side of the street and defendant was going westbound. With the evidence in this posture, the jury returned a verdict less than plaintiff’s actual medical biUs. We can only conclude that the jury compromised its award of damages with the issue of liability rather than deny any recovery to an 11-year-old boy who may have, in fact, darted out from between parked cars.

While we intimate no opinion on whether the jury’s verdict was against the manifest weight of the evidence, it is patent that this is not a case where the evidence of liability is so clear that there would not be a real issue on that point for a second jury to try. Accordingly, the order granting a new trial is reversed.

Order reversed.

DOWNING, P. J., and LEIGHTON, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Respondent-Appellee, v. Charles McKinney, Petitioner-Appellant.
    (No. 59806;
    First District (2nd Division)
    January 14, 1975.
    Paul Bradley and Judith A. Stewart, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE GOLDBERG

text:
    Carolyn Ehmen Ellingwood, a/k/a Carolyn Ellingwood Huber, Plaintiff-Appellant, v. Robert Whitcomb Ellingwood, Defendant-Appellee.
    (No. 58914;
    First District (1st Division)
    January 20, 1975.

      Burditt & Calkins, of Chicago, and Bruce Parkhill, deceased, of Evanston (John R. Blomquist, of counsel), for appellant.
    Leonard M. Ring, of Chicago (John L. Ladle, Jr., of counsel), for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

In June of 1947, Carolyn EHingwood (plaintiff) obtained a decree of divorce from Robert EHingwood (defendant) in the circuit court. The decree directed payment of $40 per month for support of a child and $5 a month for alimony. In August of 1948, plaintiff filed a petition to modify these payments. After a hearing in which both parties participated, a “decretal order” was entered. Effective August 16, 1948, defendant was ordered to pay $75 per month for child support and $25 per month for alimony.

On August 17, 1970, 22 years after the effective date of this order, plaintiff filed a petition alleging that defendant then owed arrearages of $7,760.67 together with accrued interest of $4,815.70. Plaintiff prayed entry of judgment against defendant for $12,576.37. After a lengthy hearing of all the evidence and arguments, the trial court, on January 18, 1973, entered a judgment order finding that plaintiff was estopped from recovering any amount in excess of $70 per month for chüd support and alimony from and after June 16, 1949. Accordingly, the court entered judgment in favor of plaintiff for $2,563.96 and interest in the amount of $830.01. Plaintiff appeals.

Plaintiff contends primarily that she is not estopped to recover the arrearages in child support and alimony in full together with interest. Her basic theory is that the amounts due her became vested and could not be changed or taken away by a subsequent order of the court. Defendant urges, in response, that plaintiff is barred by equitable estoppel by virtue of having accepted payments in the reduced amount for 16 years without objection, pursuant to an agreement with defendant. He further urges that the trial court correctly found that there had been an agreement between the parties for payment of lesser amounts than those specified in the court decree.

It is agreed by the parties that the child arrived at majority on October 11, 1965, so that payment of support money should abate as of that date. In addition, plaintiff remarried on October 11, 1968, so that alimony should cease as of that date.

Additional preliminary comments are required. Plaintiff’s petition for the entry of judgment filed August 17, 1970, contained a detailed and lengthy schedule of amounts which accrued under the decretal order, of payments made, and of the resulting arrearages in principal and interest. This exhibit shows a total due on principal, to and including the date of plaintiff’s remarriage, of $7,760.67 plus interest of $4,815.70; a total of $12,576.37. On May 12, 1971, with leave of court, plaintiff amended this petition by substituting a new schedule (designated as Exhibit B) which reflected a total principal arrearage of $16,130.62 with interest of $3,955.63; a total of $20,086.25. These schedules had both been prepared by plaintiffs former attorney of record, now deceased. An affidavit by this lawyer shows that the original schedule was prepared in error and that the subsequent schedule (Exhibit B) is in fact an accurate statement of the arrearages existing in compliance with the decretal order. There appears to be no serious objection to the accuracy of these figures, leaving for determination by this court only the merits of the appeal concerning the reduced amount awarded to plaintiff.

Defendant has filed an answer to the petition in which he set up four affirmative defenses: An agreement between the parties for acceptance of $70 per month in lieu of $100 per month; by virtue of reduced payment by defendant and acceptance by plaintiff for such a long period of time, defendant owes nothing; plaintiff’s claim is barred by laches or limitations; by her conduct plaintiff has waived the right to $100 per month or is estopped from claiming any arrearage “by virtue of the equities herein.” After a hearing the trial judge sustained a motion by plaintiff to strike out the first three of these defenses. This would eliminate the defenses of the specific agreement, the conduct of the parties and laches or limitations, leaving only waiver or estoppel. The judgment order appealed from by plaintiff does not recite the existence of any agreement but finds that plaintiff is estopped from recovering any amount in excess of $70 per month. However, in his remarks prior to judgment, the trial judge stated that defendant had relied upon an agreement with plaintiff and had taken on additional obligations so that there was an equitable estoppel in defendant’s favor. In his brief in this court, defendant urges that the finding of the trial court was correct in that there was an agreement between the parties. However, defendant builds this argument upon the basis of an implied agreement. In oral argument before this court, counsel for defendant agreed that there was no enforceable agreement between these parties. It follows that defendant’s contention, which remains to be determined, is whether plaintiff is equitably estopped.

From our examination of the entire record, we conclude that there was no express agreement between these parties for a reduction of the amount specified in the decretal order. There were no direct conversations or correspondence between them during the 22 years which intervened from the effective date of the decretal order to the filing of plaintiff’s petition. For most of this entire period, defendant has resided outside of the State of Illinois, and the record shows only some correspondence between his local counsel and plaintiff’s attorney which contains no evidence of any express agreement regarding reduction of payments.

The record shows that five payments of $45 each were initially made by defendant. As of December 16, 1948, defendant commenced to make monthly payments of $100 each. Five of these payments were made until and including April of 1949. Defendant then started a series of monthly payments of $70 commencing June 1949 and continuing, with slight irregularity, to and including December 1950. Throughout 1951 and for the first 5 months of 1952, his payments approximated $60 each. He paid $130 in August of 1952. He made monthly payments of $65 per month from September 1952 to and including July 1953. In August 1953, he again commenced payment of $70 per month and this continued virtually without interruption to and including October 6, 1965. No payment of any kind was made by defendant after October 1965.

A discussion of the legal and equitable rights of these parties must necessarily commence with the basic premise that payments of alimony or child support, when directed by order of a court with jurisdiction over the subject matter and the parties, become a vested right of the designated recipient as and when they accrue. This court recently held that the right to past-due installments of child support constitutes a vested right which may not be reduced or eliminated by the court. A number of cases which support this proposition were noted in the decision. (Slavis v. Slavis, 12 Ill.App.3d 467, 472, 299 N.E.2d 413.) We should carefully note the language which this court in Slavis quoted from Stark v. Stark, 131 Ill.App.2d 995, 998, 999, 269 N.E.2d 107, in which this court pointed out the strong judicial policy in abiding by this general rule. It should be added that, although commonplace today, divorce is a social scourge in its effect upon the children of broken marriages, which is another cogent reason for strict enforcement of the policy of vested rights.

In the short time since our opinion in Slavis, the Appellate Court of Illinois has decided four more cases, each illustrating the binding force of the rule of vested right with reference to alimony as well as child-support payments. Baldwin v. Baldwin, 21 Ill.App.3d 380, 315 N.E.2d 649; Green v. Green, 21 Ill.App.3d 396, 315 N.E.2d 324; Graham v. Graham, 21 Ill.App.3d 1032, 316 N.E.2d 143; Strum v. Strum, 22 Ill.App. 3d 147, 317 N.E.2d 59.

The courts of Illinois have defined the concept of equitable estoppel which may, under proper circumstances, create an exception to the otherwise rigid rule. The definition stated in Dill v. Widman, 413 Ill. 448, 455, 456, 109 N.E.2d 765, was cited with approval in Hickey v. Illinois Central R. R. Co., 35 Ill.2d 427, 447, 220 N.E.2d 415. This' definition is:

“ * * where a party by his statements or conduct leads another to do something he would not have done but for the statements or conduct of the other, the one guilty of the expressions or conduct will not be allowed to deny his utterances or acts to the loss or damage of the other party. The party claiming the estoppel must have relied upon the acts or representations of the other and have had no knowledge or convenient means of knowing the true facts.’ ”

After careful consideration, we have come to the conclusion that we may not apply the doctrine of equitable estoppel to the rights of these parties. Plaintiff has not by her statements or conduct led defendant into the current situation. Plaintiff has never communicated with defendant either verbally or in writing during all of the intervening years which followed the entry of the decretal order. It is true that plaintiff was silent throughout, despite a period of inordinate length during which the arrearages persisted and she made no demand upon defendant for payment. To counter this, it should be noted that plaintiff’s original attorney was her uncle who died in March of 1950. From then until 1964 she did nothing and apparently made no demands upon defendant. In the summer of 1964, she retained counsel who took her file and papers and did nothing until May of 1967. That very month, plaintiff retained another attorney who kept her papers and did nothing until about the middle of 1969. During 1970, plaintiff retained an attorney who represented her in the trial court and in this court until his death. Shortly thereafter she retained other counsel.

However, we cannot create an equitable estoppel upon the sole fact of failure of plaintiff or of any person in her behalf to make a demand upon defendant. Defendant participated in the hearing which resulted in entry of the decretal order. He was, therefore, fully aware of its terms. As shown, he complied with the order by making the required payments of $100 per month for a period of some 5 months until April of 1949. Each and eveiy other payment that he made during all the intervening years and until October of 1965 shows that the order of court was never out of his mind. There was no need for plaintiff to make a specific demand upon defendant to remind him of the order. Defendant cannot by his own default place the burden of making additional demands upon plaintiff. No such demand could possibly have had greater significance or efficacy than the original mandate of the court.

It now remains to examine the pertinent authorities including those cited and depended upon by both sides. In Slavis, defendant testified that after accrual of certain arrearages he gave plaintiff a check which she tore up in his presence, accompanying this act with the statement that she did not want to have his money. Plaintiff denied this. This court held that, even if the trial court had accepted this evidence as true, this fact, together with plaintiff’s subsequent failure to make demand for payment, fell short of establishing estoppel or waiver. The court pointed out that “[ejstoppel (or waiver) must be proved by clear and unequivocal evidence.” 12 Ill.App.3d 467, 474.

Defendant relies upon Anderson v. Anderson, 48 Ill.App.2d 140, 198 N.E.2d 342. The same case was again before this court (63 Ill.App.2d 358, 211 N.E.2d 492). In the first of these appeals, one of the issues involved was whether defendant should be punished for contempt of court for violation of the support order. This court reversed the finding of contempt and remanded the cause. The court pointed out that, although past-due installments of child support could not be reduced, .this did not mean that in a proper case the court could not “give effect to an agreement by a party to waive the payments or accept a lesser amount.” (48 Ill.App.2d 140, 147.) The court also stated that the doctrine of equitable estoppel could be applied to past installments “in an appropriate case.”

On remand, the trial court found that plaintiff was equitably estopped to claim certain payments which had acciued during a period of time in which defendant relied on representation of plaintiff and her new husband that they would waive further child support if he would consent to their adoption of his child. Defendant executed the consent and assumed that the adoption was consummated, which it never was. The trial court invoked estoppel from the time of the consent until the date that plaintiff filed a petition for enforcement of the support order some 2 years later. This court approved that result. Since Anderson involved contempt, it is distinguishable from the case before us. Also, since defendant changed his position by executing a consent to the adoption, we cannot say that the result reached by the court was unjustified.

In Wolfe v. Wolfe, 303 Ill.App. 188, 24 N.E.2d 871, this court also dealt with contempt of court for failure to make support payments. The parties there had definitely reached an agreement that support money should be reduced from $15 to $12.50 per week. For 5, years defendant paid all of the reduced amounts in accordance with this agreement so that no issue existed as to his compliance therewith. Plaintiff accepted the reduced payments for 5 years without a protest. For almost all of this time, the child was in the custody of the defendant’s mother who contributed to its support. (303 Ill.App. 188, 191, 24 N.E.2d 871.) The court therefore granted defendant relief.

In a more recent case, this court arrived at a similar result without citing Wolfe. In Strum v. Strum, 22 Ill.App.3d 147, 317 N.E.2d 59, a case involving contempt, this court held that, although past-due installments for child support are vested after their due date, the doctrine of equitable estoppel should be invoked. This was done because the child, with either the consent or acquiescence of the mother, took up residence with her father who supported her. From this fact, the court arrived at a conclusion consonant with equitable estoppel.

In Royster v. Royster, 339 Ill.App. 250, 89 N.E.2d 279, (First District, General No. 44796, abstract opinion), a case involving contempt, the parties entered into an agreement to reduce child support from $10 per week to $30 per month. This was never submitted to the court. The wife took the position that the arrangement was to last only a short time. Citing Wolfe, the court held that the agreement for reduction between the parties was not binding but was subject to possible ratification by the court. In granting this ratification, the court could consider delay in enforcement of the decree and the absence of extreme hardship upon the former wife. The court, accordingly, affirmed an order dismissing the petition for contempt.

The cases involving punishment for contempt of court are different from those concerned with a petition for a money judgment. As a defense to a contempt action, respondent need show simply that his failure to comply with the order was not a wilful and contumacious refusal. (Storm v. Storm, 9 Ill.App.3d 1071, 1076, 1077, 293 N.E.2d 633.) In contrast, where a respondent attempts to avoid the vested rights of petitioner by use of a special defense such as equitable estoppel, he has the burden of proving his case by evidence which is “clear, precise and unequivocal.” Jennings v. Bituminous Casualty Corp., 47 Ill.App.2d 243, 249, 197 N.E.2d 513.

In our opinion, none of the authorities above reviewed are decisive of the case at bar. We have here no issue of contempt; we have a complete absence of any agreement between these parties regarding the amount of the payments and the elements of equitable estoppel are lacking. It is true that the amount of the arrearages together with interest may impose a financial hardship. In all fairness, it may not be said that this is due in any measure to affirmative conduct by plaintiff or that plaintiff is now responsible for any difficulty in which defendant may find himself. Defendant remarried in 1954 and has two children aged 13 and 17. However, he did not comply with the order of court, of which he was fully aware, for some years prior to this marriage, and he failed to obey the order after October of 1965. There is no evidence, if defendant is now in a predicament, that this was caused by his reliance upon the conduct of plaintiff. (Compare Atwater v. Atwater, 18 Ill.App.3d 202, 210, 211, 309 N.E.2d 632, involving arrearage of payments under a property settlement agreement.) We do not find the required elements for equitable estoppel in the case before us. Defendant failed to prove equitable estoppel by that degree of “clear, precise and unequivocal” evidence which the law requires. (47 Ill.App.2d 243, 249.) In this regard, the finding of the trial court is not in accord with the evidence. Plaintiff is entitled to the benefits of the decretal order as entered.

As shown, the computations presented by counsel for the plaintiff included interest on the amount of each arrearage at the legal rate from the dates of accrual. In Anderson, (48 Ill.App.2d 140, 147), the statement is made that allowance of such interest “is a matter within the sound discretion of the court.” However, authority seems contrary to this and apparently eliminates the element of discretion. In Pope v. Pope, 2 Ill. 2d 152, 159, 160, 117 N.E.2d 65, the court held, citing previous decisions of the supreme court, that, where a judgment called for defendant to make future payments, interest at the legal rate should run from the due date of each individual payment even though the judgment order itself did not expressly provide for such interest. (See also Neeland v. Neeland, 17 Ill.App.3d 803, 806, 807, 308 N.E.2d 651, and cases therein cited.) We believe that we have no choice or discretion in this matter.

We will, accordingly, modify the judgment order entered herein on January 18, 1973, by changing the amount found due to plaintiff to $20,086.25, which is comprised of principal arrearage of $16,130.62 and interest of $3,955.63, with the further provision that this judgment bear interest thereon at the rate of 6% per annum from and after the date hereof. As modified, the judgment appealed from is affirmed.

Judgment affirmed as modified.

BURKE, P. J., and EGAN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lee Johnson, Jr., Defendant-Appellant.
    (Nos. 60508-9 cons;
    First District (2nd Division)
    January 14, 1975.
    William L. Parks, of Evanston, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Ricky L. Petrone, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eugene Ridley, Defendant-Appellant.
    (No. 59104;
    First District (1st Division)
    January 20, 1975.

      Paul Bradley and Brenda E. Richey, both of State Appellate Defenders Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM:

The defendant, Eugene Ridley, was indicted, along with Paul Roebuck and L. C. Woodard, for the May 23, 1972, armed robbery of Peter Popik. (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2.) Woodard was tried separately. Ridley and Roebuck were tried together and convicted following a jury trial. Ridley was sentenced to not less than 20 nor more than 40 years. On appeal, Ridley contends: (1) the court should have granted his motion at trial for severance or for a mistrial because of the disruptive behavior of his codefendant, Roebuck; (2) under People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695, the court should have granted defendant’s pretrial motion to bar the use of his two January, 1971, armed robbery convictions to impeach him at this armed robbery trial in September of 1972; (3) the defendant was denied his right to a fair trial when the State’s Attorney stated his personal opinion of defendant’s guilt during closing argument; and (4) the sentence is excessive in light of the defendant’s age at trial (21) and since no violent acts occurred during the commission of the armed robbery.

At trial, on September 14, 1972, Peter Popik testified that he is a part owner, along with Raymond Hadac, of the Certified Food and Liquor Store, 1906 West 69th Street in Chicago. On May 23, 1972, at about 4 in the afternoon, he was with Hadac in an office overlooking the cash registers which are located just inside the door, when, through a one-way mirror glass he saw the defendants Ridley and Roebuck and a third man, one L. C. Woodard, enter the store and stand for a while near the checkout area near the cash registers and the carts. He then went downstairs to the courtesy booth which is located on a line with the cash registers. The men were dressed in coats, two wore hats, and Ridley wore a black glove on his right hand, an unusual manner of dress since the temperature that day was in the eighties. Ridley came to the courtesy booth and asked to cash a check. When he asked Ridley if he was registered at the store, Ridley said he was not, but that his friend was and motioned for Roebuck to come over. Ridley then pulled out a gun and placed it inside the courtesy booth window and told Popik to give him all the money he had and put it in the bag. He took all the money out of the drawer and laid it on the counter in front of him, telling Ridley he didn’t have a bag; Ridley put some of the money in his pocket and Roebuck got a paper bag and Ridley and Roebuck then took money from the cash registers and put it in the bag. Ridley returned to the courtesy booth and the two left the store together. Since, as indicated, the courtesy booth is in line with the cash registers, Popik was able to take photographs of the robbery in progress with a wedge-scope check-cashing camera that viewed a line of 3 cash registers from a side view. Exhibits 2 through 12 in evidence are photographs he took, and they show Ridley clearly in one picture close to the courtesy booth; other pictures show two men taking money from the cash registers. The photographs also show store employees (cashiers) and customers, including a young boy, who were in the store at the time. Popik also identified as an exhibit a weapon that “looked like” the weapon pointed at him by Ridley. About 6:15 that evening he identified the three men from a six-man line-up, a photograph of which was also introduced into evidence.

Michael Danowski testified that he is the produce manager of the store and was working in the back of the store when he received a call from Ray Hadac. He then went to the front of the store and saw Roebuck and Ridley, whom he identified in court, and Woodard, who then left the store. Danowski followed out the side door of the store into the parking lot where he saw Woodard get into a 1970 green Chevrolet with a black vinyl top parked nearby on Winchester, right by the driveway. He then returned to the store and saw Roebuck and Ridley taking money from the cash register and phoned the police. When they left the store, he returned to the parking lot and saw them get into the green Chevrolet Woodard was driving and drive off. Ridley pointed the gun at him when he saw him in the parking lot. When the police arrived Danowski gave them a description of the green Chevrolet, including the fact that the first two letters of the license plate were “HP.” He later identified the defendants from the same six-man line-up shown in the photographic exhibit.

Raymond Hadac, the co-owner, testified that he was with Popik in the office behind the courtesy booth and saw Ridley, Roebuck and a third man enter tire store, saw Popik take some money downstairs with which to cash checks, and watched the entire robbery through the one-way mirror. He tripped the alarm when he saw Ridley pull tie gun at the courtesy booth and he also identified Ridley and Roebuck from the line-up shown in the photographic exhibit.

Chicago Police Officer Gerald McGovern testified that he answered the robbery call, and spoke to Danowski who gave him the description of the 1970 green Chevrolet with the license plate beginning with “HP” occupied by three male Negroes, and he broadcast this information over the police radio.

Chicago Police Officer Dale Riordan testified that he received a radio message at 4:05 P.M. and observed the vehicle fitting the broadcast description headed northbound on Paulina and caught up with it at 58th and Marshfield. As he approached in his marked blue-and-white police vehicle, the wanted vehicle accelerated at a high rate of speed. He turned on the spotlight and the siren and unsuccessfully tried to curb the vehicle. He oberved a number of objects thrown from the vehicle at 58th and Marshfield, what appeared to be a chrome-plated revolver, what appeared to be another revolver, and a third object he could not identify. He stopped the vehicle at 55th and Halsted and arrested the defendants, whom he identified in court, and Woodard, who was driving. He later recovered, at 57th and Elizabeth, the weapon which Popik had earlier identified as looking like the weapon pointed at him by Ridley. A search of Roebuck at the station resulted in $191 in tens, fives, and 52 singles and a search of Ridley resulted in $132, 2 tens, 12 fives, and 52 singles. Woodard had $27 on his person. The inventory slip for the weapon contained a notation that it was recovered from Ridley because he saw the person in the front-seat passenger-side of the car throw it, and when he stopped the car, Ridley was sitting in the front-seat passenger-side of the car.

Defendant’s first contention is that Roebuck’s behavior in front of the jury denied him a fair trial. The record shows that on September 11,1972, Roebuck, in order to protect his rights under the Four Term Act, asked for an immediate trial, but also asked for a lawyer other than the public defender. On both September 11, and September 12, 1972, his request was refused because the term would have expired before a “bar lawyer” could be obtained. Questions about Roebuck’s mental competency were also raised at various points during the trial by Roebuck’s lawyer. It was not until one panel of jurors had been chosen that Roebuck began to speak out in the presence of the jury. At this point the judge immediately excused the jury. Roebuck’s complaints were that his lawyer, an assistant public defender, was not truly representing him, that he was being forced to trial without a lawyer, that black people were being kept off the jury and that the judge was “racist.” Each occasion when Roebuck spoke out, the court took immediate action to separate the defendant and the jury. Motions by Ridley for severance and a mistrial were denied, and members of the venire were questioned both about whether Roebuck’s outburst would affect their ability to give Roebuck or Ridley a fair trial. One juror was excused because she said she thought she might not possibly be able to give Roebuck a fair trial. The court had a conference in chambers following the first outburst and warned Roebuck that he would be removed if he continued. Roebuck was removed from the courtroom on the next occasion and told that he would not be allowed to return unless he would “behave” himself. The result was that Roebuck was not present for the trial except for very brief periods when he entered court to be identified by the witnesses Popik, Hadac and Officer Riordan. On these occasions Roebuck did make brief derogatory comments to the judge or to the witness, but the court immediately admonished the jury that they were not to consider any statements made by Roebuck off the witness stand.

People v. Washington, 77 Ill.App.2d 8, 222 N.E.2d 150, cited by the defendant, is distinguishable. In remanding for a new trial, the court there noted that on 119 occasions the codefendant Allen had interrupted the trial with “ravings and abusive epithets directed at the judge, die State’s Attorney, and even at his own counsel,” and that removal of the defendant was among the measures a trial judge might take to preserve decorum. (77 Ill.App.2d 8, 9, 13.) In the case at bar, the trial judge took the appropriate and immediate action necessary to insure decorum and to minimize any possible prejudice to the defendant Ridley. He excluded Roebuck from nearly all of the trial proceedings when it became evident that Roebuck’s intention was to disrupt the proceedings. Yet, when it was necessary, Roebuck was brought into the courtroom to be identified by the key witnesses. When, on these occasions, Roebuck made outbursts, the judge was careful on each occasion to instruct the jury to disregard these comments by Roebuck. As the court recently pointed in People v. DeSavieu, 14 Ill.App.3d 912, 919, 303 N.E.2d 782, if such conduct by a codefendant were held to require a retrial, it might never be possible to try more than one defendant at a time, and disruptive behavior would thereby become a device by which defendants might easily provoke a mistrial whenever it might suit them. The court properly denied the defendant’s motion fór severance and mistrial.

Defendant next contends that the court erred in denying defendant’s pretrial motion to bar use of his 1971 armed robbery conviction at this 1972 armed robbery trial, under the rule announced by the Illinois Supreme Court in People v. Montgomery, 47 Ill.2d 510, 517-518, 268 N.E.2d 695, that it is within the sound discretion of the trial court to refuse to allow a defendant to be impeached by a prior criminal conviction if the trial judge believes the prejudicial effect of impeachment outweighs the probative relevance of the prior conviction to the issue of credibility. Citing Gordon v. United States (D.C. Cir. 1967), 383 F.2d 936, the Illinois Supreme Court noted the various factors the Gordon court had suggested be considered in making the determination: “[T]he nature of the crime, nearness or remoteness, the subsequent career of the person, and whether the crime was similar to the one charged.” (47 Ill.2d 510, 518.) It is the latter problem with which we are concerned here, for as defendant points out, one of the most difficult problems involving the use of a prior conviction is the situation now before us where a criminal defendant is impeached by a proof of a recent prior conviction of the same crime with which he is charged. Gordon pointed out the tendency of a lay jury to reason: “If he did it before, he probably did it this time.” Impeachment by conviction for the same crime, the Gordon court said, should be used “sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.” 383 F.2d 936, 940.

In this case, the prior conviction did relate to veracity. The court said in Gordon (383 F.2d 936, 940):

“In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man’s honesty and integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity. A ‘rule of thumb’ thus should be that convictions which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not; 8 8 8.”

Obviously, robbery is a crime which, like stealing, relates directly to credibility. Although robbery involves violence, it is violence employed to a dishonest end, that is, stealing by violent means.

Defendant also contends that since his 1971 conviction was the result of a guilty plea, its probative value for impeachment purposes is thereby weakened. He cites a footnote in Gordon (383 F.2d 936, 940, footnote 8), where the court did point out that the relevance of prior convictions “may well be different” as between a plea and a tidal where “the accused affirmatively puts his own veracity in issue when he testified so that the jury’s verdict amounted to rejection of his testimony; the verdict is in a sense a de facto finding that the accused did not tell the truth when sworn to do so.” But rather than barring a conviction based on a plea, it would seem sufficient if the accused could, as the Gordon court did, argue that a guilty plea, as such, does not affect credibility, i.e., be allowed to show that the conviction was by a plea, and that when he was in fact guilty, the defendant admitted it. In this case, the defendant’s position is weakened by the fact that his lawyer chose not to argue the motion and did not ask for any limiting orders. In fact, the defendant did not inform the trial court that die 1971 conviction was the result of a plea of guilty, a fact not known until it was presented by the State at the hearing in aggravation and mitigation.

Under Montgomery, the court is given broad discretion and under the circumstances of this case, no abuse of that discretion has been shown. Impeachment by proof of the same or similar conduct has been upheld. See People v. Blythe, 17 Ill.App.3d 768, 769-771, 308 N.E.2d 675 (defendant on trial for murder impeached by prior Tennessee convictions of manslaughter and assault with intent to commit robbery); People v. Dailey, 15 Ill.App.3d 214, 304 N.E.2d 156 (burglary defendant impeached by previous burglary conviction). Cf. also People v. Bracy, 14 Ill.App.3d 495, 503-4, 302 N.E.2d 747 (armed robbery defendant impeached by 1964 and 1965 armed robbery convictions at 1970, -pre-Montgomery trial, dicta that Montgomery is “clearly distinguishable”).

Defendant next contends that tire following remark by the State’s Attorney about half way through his closing argument, constitutes reversible error:

“After they cleaned out the tills, another interesting thing occurred. Mr. Ridley, as if he had not already done enough, goes around tire store waving a gun around and Mr. Roebuck goes over and stands by the courtesy counter and what happens then, ladies and gentlemen, never in a courtroom has there been better evidence than this.” (Emphasis added.)

Both defense counsel objected to the remark, the objection was immediately sustained, the comment was stricken and the judge insttucted. the jury to disregard it, stating, “Let’s try this case.” Defendant argues' that the remark constitutes reversible error because the prosecutor impermissibly stated his own personal opinion of the evidence. Even if the-remark could be so construed, it was an isolated one, it was not repeated and it was not part of any pattern of argument in which the prosecutor stated his personal belief in the defendant’s guilt. The error, if any, was not prejudicial, especially in view of the strong evidence of the defendant’s guilt. People v. Nicholls, 42 Ill.2d 91, 100, 245 N.E.2d 771, cert. denied, 396 U.S. 1016.

Finally, the defendant contends the sentence was excessive in view of his age and the nature of the offense. The defendant was only 21 years of age at the time of the trial and he argues that there was no evidence that either he or his codefendants “committed any acts of violence during the robbery.” But the record shows that Ridley was armed and that he assaulted Popik with the weapon, that he waved the weapon around the store when other store employees and customers were present, that he again pointed the gun in the direction of Danowski in the parking lot as he fled, and that the gun was loaded. The fact that no one was actually shot or otherwise injured during the armed robbery is not therefore, attributable to the defendant, and is not properly a factor to be considered in mitigation.

The defendant was convicted of theft in 1969 and served 9 months for that offense. He was again convicted of two armed robberies in 1971 and had been out of jail less than 6 weeks when this crime was committed on May 23, 1972. Because of the superior opportunity of the trial judge to observe the defendant at trial, the discretion of the appellate court to reduce a sentence under Supreme Court Rule 615(b)(4) is to be exercised with considerable caution; and we have concluded that the circumstances in the case at bar do not justify its exercise. (People v. Taylor, 33 Ill.2d 417, 424, 211 N.E.2d 673.) Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Williams, Defendant-Appellant.
    (No. 59194;
    First District (1st Division)
    January 20, 1975.
    James J. Doherty, Public Defender, of Chicago (Anthony Pinelli and Suzanne M. Xinos, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Thomas D. Rafter, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry New, Defendant-Appellant.
    (No. 59326;
    First District (1st Division)
    January 20, 1975.
    James J. Doherty, Public Defender, of Chicago (Terrence McQuigg and Matthew J. Beemsterboer, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Raymond J. Prosser, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    Frederick Roemer, Plaintiff-Appellee, v. Zurich Insurance Company et al., Defendants-Appellees.
    (No. 59930;
    First District (1st Division)
    January 20, 1975.

      Chester A. Lizak, of Chicago, for appellant.
    David P. List, William O. Fifield, and Nathan P. Eimer, all of Sidley & Austin, of Chicago, for appellees.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Frederick Roemer (plaintiff) brought this action for damages against his employer, Zurich Insurance Company (Zurich), Allison Henry (Henry), a supervisor for the employer and a secretary and coworker of plaintiff Patricia Thomas (Thomas). The record before us commences with plaintiffs third amended complaint at law (complaint) consisting of five counts. The three defendants filed a motion to strike Counts I, III and IV in their entirety; or, alternatively, to strike the pertinent portions of these counts. After a hearing, the trial court granted defendants’ motion to strike these three counts with prejudice, finding that there was no just reason to delay enforcement of, or appeal from, the order. Plaintiff has appealed.

Count I of the complaint seeking damages from Zurich, alleges that in January of 1971, plaintiff was hired by Zurich to work in its personnel department. Plaintiff duly performed all of his duties until he was discharged on March 12, 1973. Plaintiff received a number of pay raises and was promoted to employment manager and “during such period acquired certain rights in such corporation, including participation in the profit sharing plan and group insurance offered by such corporation.” Defendant Henry was the immediate supervisor of plaintiff and defendant Thomas was employed under plaintiff’s direct supervision. Both of them had due notice and knowledge of the contract of employment between plaintiff and Zurich.

Count I further alleges that on March 12, 1973, plaintiff was advised by Henry that Thomas had accused plaintiff of making sexual advances toward her and that these accusations were untrue. On March 12, 1973, plaintiff was summarily discharged without just cause, a hearing and the right to confront his accuser.

Count III, seeking damages from defendant Thomas, incorporates the paragraph first above set forth pertaining to the allegations of Count I. Count III also alleges that plaintiff had been reputed, esteemed and accepted by and among his neighbors and professional associates, to whom he was known to be a person of good repute and chaste character. Plaintiff had never previously been suspected of being guilty of unchaste and unprofessional conduct. On March 9, 1973, defendant Thomas “did falsely, maliciously and intentionally advise” defendant Henry that she was forced to quit Zurich because plaintiff was making “sexual advances” toward her. It is further alleged that by this statement defendant Thomas imputed that plaintiff was of unchaste and immoral character and was unfit, unqualified and lacking in professional integrity to be employment manager at Zurich.

Count III proceeds to allege that by reason of these defamatory statements, plaintiff has suffered, and will continue to suffer, substantial damages such as loss of employment and salary, loss of future employment opportunities, great mental pain, distress of mind and humiliation, and his reputation for professional integrity and virtue has been brought into question. For many years plaintiff will be confronted with the facts of his discharge where he seeks other employment and will be forced to tell other and future employers to whom he might make application for work that he was once discharged as above set forth. All of this has caused, and in the future will cause, plaintiff to suffer great mental agony, distress of mind and humiliation.

Count IV, seeking damages from defendants Zurich and Henry, also incorporates the initial paragraph above set forth regarding Count I. It alleges that on March 12, 1973, plaintiff was advised by defendant Henry that defendant Thomas had accused him of making sexual advances toward her. On March 12, 1973, plaintiff was summarily discharged. Plaintiff registered with certain placement agencies in an attempt to secure new employment. It alleges further that on March 19, 1973, defendant Henry, both individually and in his supervisory capacity for Zurich, “did wrongfully, willfully and maliciously respond to an inquiry” from a placement agency asking him to rate plaintiff’s work performance by stating, “That’s self-explanatory. He is no longer here.”

In addition, County IV alleges that on March 20, 1973, defendant Henry, in like capacity, “wrongfully, willfully and maliciously responded to an inquiry” from another placement agency asking him to rate plaintiff’s work performance by stating, “I would not want him working for me.” Both of these replies falsely impute that plaintiff was an incompetent and unqualified employee. Both replies were made “with express malice, with knowledge that such replies falsely imputed that plaintiff was an incompetent and unqualified employee, and with design and intent to injure Plaintiff and his good name, reputation and his ability to secure employment.” Plaintiff also alleges that by reason of the above he has suffered, and will continue to suffer, substantial damages much as alleged in Count III.

In this court, plaintiff contends that an employee at will, who participates in the profit-sharing and group-insurance plans of his employer, may not be discharged without cause; the complaint is sufficient at law as regards the accusation of sexual advances because such accusation was made with malice and resulted in special damages to the plaintiff and a false statement by an employer imputing incompetency to an employee is actionable if maliciously made and resulting in special damages. Defendants urge that plaintiff’s employment with Zurich was terminable at will without cause by either party so that his discharge is nonactionable as a matter of law; the alleged slanderous statements made by defendant Thomas against plaintiff are capable of innocent construction and therefore they must be so construed and declared nonactionable as a matter of law and the responses made by defendant Henry to inquiries from prospective employers of plaintiff were privileged.

The legal sufficiency of these counts of the complaint must be considered and determined with certain basic principles in mind. The properly pleaded allegations are admitted by the motion of defendants to dismiss. (Holiday Magic, Inc. v. Scott, 4 Ill.App.3d 962, 963, 282 N.E.2d 452, appeal denied, 52 Ill.2d 594, and cases therein cited.) However, although well-pleaded facts must be taken as true, conclusions are not admitted and need not be accepted. (Chicago Teachers Union v. Board of Education, 14 Ill.App.3d 154, 156, 301 N.E.2d 833.) As this court has held, the motion to dismiss “does not admit conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which the conclusions are based s * Delis v. Sepsis, 9 Ill.App.3d 217, 222, 292 N.E.2d 138.

Analysis of Count I reveals that it alleges no specified time or duration for the employment of plaintiff by Zurich. No copy of any written contract between these parties is appended to the complaint or described therein. The complaint merely alleges that plaintiff “was hired by defendant, ZURICH.” We must therefore assume that the legal relation between the parties was an employment at will. The arrangement between plaintiff and Zurich was subject to termination by either of them at will, for or without cause. (Buian v. J. L. Jacobs & Co. (7th cir. 1970), 428 F.2d 531, 533, citing Atwood v. Curtiss Candy Company, 22 Ill.App.2d 369, 161 N.E.2d 355, appeal denied, 18 Ill.2d 627. See also 17 I.L.P. Employment § 21, at 386 (1956), and Urnest v. Forged Tooth Gear Co., 102 Ill.App.2d 178, 188, 243 N.E.2d 596.) Consequently, plaintiff had no cause of action against Zurich for mere termination of his employment at any time, either with or without cause.

The only additional allegations in Count I are conclusions that plaintiff “acquired certain rights” in defendant Zurich “including participation in the profit sharing plan and group insurance offered by such corporation.” These are pure conclusions of the pleader. We are not informed regarding the provisions of any profit sharing or group insurance plan and as to whether plaintiff had vested rights in any benefits which might have accrued under these plans. No copy of any plan is appended to the complaint. (Ill. Rev. Stat. 1973, ch. 110, par. 36; Barnes v. Peoples Gas Light & Coke Co., 103 Ill.App.2d 425, 428, 243 N.E.2d 855.) Thus, as above shown, these conclusory affegations are insufficient to state any cause of action flowing from plaintiffs termination. It follows that Count I was properly dismissed.

Turning now to Count III, which seeks damages from the secretary, defendant Thomas, the charge is made that she “did falsely, maliciously and intentionally” tell defendant Henry that she was forced to leave her employment because plaintiff was making “sexual advances” toward her. There is a paucity of factual allegations in this pleading. It does not inform as to whether the aUeged advances were verbal or physical, where the incident or incidents took place or any of the other necessarily important surrounding circumstances. These omissions leave the reader of the pleading completely unaware of the meaning of the words in question. However, since these are the only words alleged, we must assume that they are in fact the exact words stated to defendant Henry by defendant Thomas. Undoubtedly this particular combination of words describes a great variety of human conduct including both acts and verbalizations.

It foUows necessarily that the so-called rule of innocent construction must be applied in this situation, (John v. Tribune Co., 24 Ill.2d 437, 442, 181 N.E.2d 105, cert. denied, 371 U.S. 877, and numerous cases therein cited):

“That rule holds that the article is to be read as a whole and the words given their natural and obvious meaning, and requires that words allegedly libelous that are capable of being read innocently must be so' read and, declared nonactionable as a matter of law.

The rule of innocent construction has been frequently and consistently applied by the courts of Illinois in analyzing allegedly defamatory material. (See Valentine v. North American Company for Life and Health Insurance, 60 Ill.2d 168, and numerous cases therein cited.) The rule applies to slander as well as libel with equal force, and the question of whether the language used is suspectible of an innocent construction is a question of law for the court. (See Valentine and cases therein cited.) An excellent example of application of this rule appears in Conrad v. Logan, 4 Ill.App.3d 981, 283 N.E.2d 54, where the spoken words alleged that certain persons had taken funds, in the form of cash, from a company. This court pointed out that the words in question “indeed could have been an innocent reference * * *” to receipt of salary or other legitimate benefits from the company. 4 Ill.App.3d 981, 982.

Applying this principle to the case at .bar, we are obliged to conclude that the spoken words might reasonably receive a completely innocent construction. The words might be construed to describe generally accepted social conduct such as a gesture or a wink or even the use of words with double meaning as a form of jest. In view of the complete ambiguity of the phrase as used in the complaint, we are obliged to accept and to apply an innocent construction. The allegation in the complaint that the words used by Thomas imputed that plaintiff was of unchaste and immoral character does not necessarily follow from the words themselves. This is even more readily apparent as regards the allegation that the words imputed that plaintiff was unfit, unqualified and lacking in professional integrity with reference to his employment at Zurich. None of these imputations appear valid in view of the innocent construction which the words must be given.

One additional factor must be pointed out here. Count III alleges that defendant Thomas used the questioned phrase “falsely, maliciously and intentionally.” These words, standing by themselves, are pure conclusions of the pleader. As above pointed out, they are meaningless and add nothing to the complaint without some further allegations of specific facts. See Delis v. Sespsis, 9 Ill.App.3d 217, 222.

Count IV, against the employer Zurich and plaintiff’s supervisor, defendant Henry, is concerned with alleged verbal replies by Henry to inquiries from two placement agencies which requested a rating of plaintiff’s work performance during his employment by Zurich. On one day, in response to such an inquiry, defendant Henry said, “That is self-explanatory. He is no longer here.” On the following day, to another agency, defendant Henry stated, “I would not want him working for me.” The first of these responses is hardly a defamatory statement. Defendant Henry merely stated an obvious fact which plaintiff himself undoubtedly told the placement agency when he made his application for assistance in finding employment. In any event, both of these statements by defendant Henry must necessarily be classified as conditionally privileged. It has been repeatedly held in Illinois that whether a communication is “* * * ‘a qualifiedly or conditionally privileged communication, or not, [is] a question of law for the court only, not a question of fact for the jury.’” (Myers v. Spohnholtz, 11 Ill.App.3d 560, 567, 297 N.E.2d 183, appeal denied, 54 Ill.2d 593.) In Myers, this court cited the leading cases in Illinois which illustrate this proposition:

“The essential elements which bear upon the existence of conditional privilege appear to be: (1) good faith by the writer; (2) an interest or duty to be upheld; (3) a statement limited in its scope to that purpose; (4) a proper occasion and (5) publication in a proper manner and to proper parties only.” 11 Ill.App.3d 560, 567.

When the court has decided that a communication is conditionally privileged, there is no liability upon the publisher, unless the publication was made with actual or express malice. This would operate to abuse the privilege and consequently to avoid it. 11 Ill.App.3d 560, 569.

Analysis indicates that all the essential elements of conditional privilege are present in both of the verbal statements made by defendant Henry to representatives of the placement agencies. This appears affirmatively as a matter of law from the allegations of Count IV of plaintiffs complaint. Defendant Henry was acting in good faith in that he abstained from stating details other than the fact that plaintiff was no longer associated with Zurich and the additional statement that he personally would not want plaintiff working for him. No other or additional words or phrases are alleged. Since defendant Henry was plaintiff’s supervisor, he would have a duty to respond in some manner to the inquiries made by the placement agencies. Both of Henry’s statements were limited to the purpose of the inquiry. Both occasions were proper since they were necessarily made in response to two telephone calls apparently made pursuant to information originally given to the agencies by plaintiff. Finally, the publication of the remarks by Henry was limited to those persons who sought him out upon the telephone.

Proceeding next to determine whether proper allegations of actual malice or abuse of the privilege appear from the complaint, Count IV alleges that Henry made the replies “with express malice, with knowledge that such replies falsely imputed that Plaintiff was an incompetent and unqualified employee, and with design and intent to injure Plaintiff * * Since the spoken words themselves do not suggest or even imply malice, it is necessary that these bare conclusions regarding malice and intent 'Tie clothed with factual allegations from which the actual malice might reasonably be said to exist.” Segall v. Lindsay-Schaub Newspapers, Inc., 68 Ill.App.2d 209, 214, 215 N.E.2d 295.

In Grabavoy v. Wilson, 87 Ill.App.2d 193, 230 N.E.2d 581, the complaint alleged that a defendant “maliciously issued” a certain statement or report setting forth that there were a number of liens against plaintiff’s property and that this “publication was maliciously designed to represent plaintiff as a tax evader * * This court held that the allegations were insufficient as regards the question of actual malice because “there is no admission by the motions to dismiss of malice since there were no facts alleged from which malice could be implied or presumed.” (87 Ill. App.2d 193, 201.) Note also the statement of this principle in a case involving interference with contractual relations in which intentional and malicious inducement of the breach is a necessary element. Bergfeld v. Stork, 7 Ill.App.3d 486, 491, 288 N.E.2d 15.

It follows necessarily that Count IV of plaintiff’s complaint states no cause of action and was properly dismissed. The order appealed from is therefore affirmed.

Judgment affirmed.

BURKE, P. J., and EGAN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Shelby, Defendant-Appellant.
    (No. 60579;
    First District (1st Division)
    January 20, 1975.
   PER CURIAM.

James J. Doherty, Public Defender, of Chicago (Thomas F. Finegan, Assistant Public Defender, of counsel), for appellant.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John F. Brennan, Assistant State’s Attorneys, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roger Blakely (Impleaded), Defendant-Appellant.
    (No. 59943;
    First District (2nd Division)
    January 21, 1975.

      James J. Doherty, Public Defender, of Chicago (Susan K. Horn and James M. Sammons, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. JUSTICE LEIGHTON

text:
    Nikki Lewis, Plaintiff-Appellee, v. Hull House Association, Defendant-Appellant.
    (No. 56252;
    First District (2nd Division)
    January 21, 1975.

      Dom J. Rizzi, of Chicago, for appellant.
    Theodore L. Forsberg, of Chicago, for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This litigation began with a suit by Nikki Lewis against the Hull Plouse Association to recover for personal injuries she sustained in a fall from a ladder in a theater owned by defendant. In an amended complaint, plaintiff sought $125,000 in damages based on defendant’s alleged negligence in maintaining the theater. Defendant’s answer denied plaintiff’s allegations and affirmatively asserted that she was a volunteer theater worker who had regularly used the ladder in question; therefore, she should have known of its defective condition. Then, as an affirmative defense, defendant alleged that plaintiff assumed the risk by continuing to use the ladder.

To these allegations plaintiff replied that she was an invitee on defendant’s premises rather than a volunteer worker. Further, she denied all the affirmative assertions in defendant’s answer. Later, on plaintiff’s motion, defendant’s affirmative defense was stricken, the court ruling that the relation of employer and employee did not exist between the parties. Thereafter, the case was heard by a jury that returned a $105,000 verdict in plaintiff’s favor. A post-trial motion was made and overruled; judgment was entered on the verdict.

Defendant appeals and presents four issues for our review. (1.) Whether the trial court committed reversible error in an instruction it gave the jury. (2.) Whether on the occasion of her injuries, plaintiff, as a matter of law, was guilty of contributory negligence. (3.) Whether the evidence proved that plaintiff’s injuries were the result of defendant’s negligence. (4.) Whether a judgment in defendant’s favor should be entered in this court, or, in the alternative, the judgment in plaintiff’s favor should be reversed and the cause remanded for a new trial because the jury’s verdict was against the manifest weight of the evidence. The issues are raised from the following facts.

In May, 1965, plaintiff became associated with defendant’s HuH House Theater in Chicago. She was one of a number of people who worked there without pay. Four or five weeks later she became the stage manager, and one of her duties was to see that the' stage lights were in operation during performances. The lights were controlled from a booth that was located in a room above and immediately behind the stage. Access to the room was only by a vertical ladder made of solid metal with rungs that were round and smooth. The ladder was permanently fixed 5 inches from the wall.

In discharging her duties as the stage manager, plaintiff had to use the ladder. In fact, she had done so some 50 or 60 times before the incident in question and thus was familiar with it. The ladder had been the subject of discussion among defendant’s volunteers and employees. Some persons had said in plaintiff’s presence that the ladder was dangerous; some had said they were frightened about using it. Complaints about it were from both men and women, but defendant did nothing about the ladder.

During the evening of July 31, 1965, plaintiff was working when she learned that a bank of stage lights was out. She went to the control booth. As she had done on numerous occasions before, she started to climb the ladder, but when she was about 7 feet from the floor, one foot slipped back and she lost her balance. She tried to hang onto the ladder with both hands in an attempt to get her foot back on one of the rungs, but after some effort, one of her hands gave way, then the other and she fell to the floor. She tried to get up but could not. Later with the help of others, she was taken to a hospital where she remained approximately 3 weeks for an injury that resulted in a marked hunchback, a deformity of the spine.

After this incident, defendant had a testing-laboratory engineer inspect the vertical, ladder. The engineer was a witness for the plaintiff, and the parties stipulated that the ladder was in the same condition when the engineer examined it as it was on the day of plaintiff’s fall. The engineer told the jury that the ladder was 5 inches from the wall, whereas existing safety standards required that vertical ladders be set 7 inches from a wall. The engineer said his examination disclosed that the top rung of the vertical ladder was about 12 inches below the floor line of the room in which the control booth was located, whereas safety standards required that the top rung of a vertical ladder be directly in line with' the floor of the room to be reached.

There was evidence which told the jury that defendant’s theater was extensively remodeled in 1962 or 1963. The building that housed the theater was subject to the Municipal Code of Chicago, particularly its chapters 67 — 3 thru 67 — 4(e) and 78 — 5.1(a) (b) which' governed exits from buildings, floors, spaces or rooms. An architect, as an expert witness, testified for the plaintiff and told the jury that he knew the accepted architectural standards that were prevalent in Chicago in 1965. He said it was his opinion that the vertical ladder which defendant had furnished as the only access to the control booth did not conform with requirements of the Chicago Municipal Code nor with safety standards recognized in the city at the time plaintiff was injured. Speaking as an expert in such matters, the architect said that a vertical ladder like the one defendant had furnished should not have been used where there is frequent need for access, as was the case with the light-control booth in question. Such ladders, he said, were reserved for access to areas that had to be reached once or twice a year. He said that where frequent use of such areas was involved, the building owner should furnish a stairway.

Defendant called three witnesses. None of them, however, contradicted plaintiff concerning the incident of July 31, 1965, or her injuries. Another was the architect who worked on the remodeling of the theater in 1962-1963. He told the jury that he would not have recommended installation of the vertical ladder had he known that it was going to be used frequently as the only means of access to the light-control booth.

Based on the testimony of the engineer, her architect and the architect who testified for defendant, plaintiff’s counsel tendered to the trial court instruction No. 15, which quoted from the city of Chicago ordinance governing exit requirements. Defendant’s counsel objected to it on the ground that the ordinance did not apply to the case at issue. The tendered instruction, he argued, mentioned exits that were not relevant to the case. The trial judge ruled that the instruction should be given, but he instructed plaintiff’s counsel to rewrite it. This was done. Then, at the conference that followed, the instruction was again tendered. The trial judge asked defendant’s counsel if he had any objection to it. “No,” he responded. “If they are typed as we’ve agreed than I’ll say there is no objection.” The instruction was given to the jury.

I.

In her brief before us, plaintiff points to the response of defendant’s counsel and argues that the objection to her instruction No. 15 which is being asserted in this appeal was not made in the trial court. No reply brief has been filed by defendant; but we assume that the rewritten instruction was examined by defendant’s counsel and he found that it had been retyped as agreed upon. Therefore, it appears that when plaintiff’s rewritten instruction was tendered, defendant expressed no objection.

Section 67(3) of our Civil Practice Act requires that “[t]he court shall hold a conference with counsel to settle the instructions and shall inform counsel of his proposed action thereon prior to the arguments to the jury.” (Ill. Rev. Stat. 1969, ch. 110, par. 67(3).) It is provided in Supreme Court Rule 239(b) that “[cjounsel may object at the conference on instructions to any instruction prepared at the court’s direction, regardless of who prepared it, and the court shall rule on these objections as well as objections to other instructions. The grounds of the objections shall be particularly specified.” (Ill. Rev. Stat. 1969, ch. 110A, par. 239(b).) The puipose of a jury instruction conference is to afford the parties an opportunity to object to instructions they claim are erroneous. (Smelcer v. Sanders, 39 Ill.App.2d 164, 172, 188 N.E.2d 391.) The objections have to be specific. (Johnston v. Basic, 16 Ill.App.3d 453, 306 N.E.2d 610.) With such an opportunity, a party cannot sit idly at an instruction conference, permit the jury to receive an instruction without specific objection and then for the first time in a post-trial motion or in an appeal make the claim that error was committed in instructing the jury. (See Onderisin v. Elgin, Joliet & Eastern Ry. Co., 20 Ill.App.2d 73, 155 N.E.2d 338; Arboit v. Gateway Transportation Co., 15 Ill.App.2d 500, 146 N.E.2d 582.) Even in a criminal case, where the trial judge ordered a tendered instruction rewritten and when it was presented defendant’s counsel expressed no objection, it was held that this was an express disclaimer of objection; it waived defendant’s right to question the correctness of the instruction in his post-trial motion; and the issue concerning error in giving the instruction was not preserved for review. (See State v. Jackson (1974),-Iowa-, 223 N.W.2d 229.) Therefore, we conclude that defendant’s counsel did not specifically object to plaintiff’s instruction No. 15 during the jury instruction conference, and as a consequence defendant will not be heard in this appeal to complain that the trial court committed reversible error in the instruction it gave the jury. Olofsson v. Wood, 23 Ill.App.2d 32, 161 N.E.2d 681; Rhodes v. Oliva, 13 Ill.App.3d 849, 301 N.E.2d 126.

II.

When she testified, plaintiff told the jmy how she fell from defendant’s vertical ladder. She admitted being familiar with it and having used it on 50 or 60 occasions prior to the day she was injured. She said that on occasion people with whom she worked had expressed the thought that the ladder was dangerous. Yet, she continued to use it. From these admissions, defendant argues that as a matter of law plaintiff was guilty of contributory negligence when she was injured. In support, defendant cites a number of Illinois decisions, which we have examined.

We notice, however, that one was a case in which the doctrine of assumption of risk was applied to determine the liability of an employer to his employee. Another involved the collision of two automobiles. Still another was a case in which the dispositive issues were whether defendant was negligent and whether that negligence proximately caused the decedent’s injuries. Two were cases involving causes of action for products liability. Four were cases in which the injured plaintiff, by his own choice, elected to follow a course of conduct which the court held was contributory negligence as a matter of law. In this case, defendant maintained a theater whose stage lights were controlled in a booth to which the only access was the vertical ladder in question. It is a case in which defendant furnished plaintiff with only one course of conduct, use of that ladder. Of course, it is true that a party may through his own testimony conclusively bar his claim or his defense, but a determination that he had done so depends on an evaluation of all his testimony, not just part of it, together with an appraisal of that testimony in the light of all the facts and circumstances of the case. (Carter v. Winter, 32 Ill.2d 275, 204 N.E.2d 755; McCormick on Evidence § 266 ( 2d ed. 1972); 9 Wigmore on Evidence § 2594(a) (3d ed. 1940).) When we here follow this rule, it becomes readily apparent that plaintiff did not know of the 2-inch deficiency in the distance of the ladder from the wall as required by prevalent standards governing erection of such means of access. Plaintiff did not say she knew why her fellow workers characterized the ladder as dangerous. The jury had a photograph from which it could have found that it was tire ladder’s perpendicular position that caused some of plaintiff’s fellow workers to consider it dangerous. The question therefore arises whether at the time plaintiff used the ladder and was injured she was acting as a reasonable and prudent person.

Whether, in a given case, the conduct of an injured person was contributory negligence is preeminently one for the jury, and the issue becomes a question of law only when the undisputed evidence conclusively proves that the accident resulted from the negligence of the injured party and that the injury or injuries could have been avoided by use of reasonable precautions. (Hargis v. Standard Oil Co., 10 Ill.App.2d 119, 134 N.E.2d 518.) Where, however, reasonable men acting within the limits prescribed by law might reach different conclusions or draw different inferences from the facts, the question whether certain conduct was contributory negligence is for the jury. (Packard v. Kennedy, 4 Ill.App.2d 177, 124 N.E.2d 55.) In our judgment, plaintiff’s testimony, appraised in the light of all the facts and circumstances of the case, did not prove as a matter of law that her conduct at the time of her injuries was contributory negligence. This was a question, of fact. Compare Day v. Barber-Colman Co., 10 Ill.App.2d 494, 135 N.E.2d 231.

III.

It was also a question of fact whether plaintiff’s injuries were caused by defendant’s negligence. Bearing on this issue, plaintiff testified concerning her knowledge of die vertical ladder and its use. The engineer described to the jury how the vertical ladder had been so constructed for defendant that it was 2 inches nearer the wall than was allowed by existing safety standards. Plaintiffs architect told the jury that for a room whose access was frequently needed by those who worked in defendant’s theater the vertical ladder did not comply with Chicago Municipal Code provisions. He gave his opinion that a stairway should have been furnished by defendant, one that would cost $640. In her amended complaint, plaintiff alleged defendant’s failure to comply with certain ordinances that governed the maintenance of buildings. Without objection from defendant, the trial court instructed the jury that one of plaintiffs claims was that defendant had “[f ] ailed to construct, provide and maintain a stairway to the light-control booth, in violation of a certain ordinance of the city of Chicago.”

In the record we have examined, plaintiffs evidence is uncontradicted. No witness called by defendant disputed plaintiff in any way concerning her description of the fall she experienced from defendant’s vertical ladder. None disputed the testimony of her engineer witness that the ladder did not comply with known safety standards prevalent in the city of Chicago at the time of plaintiff’s injuries. Nor did any witness for defendant dispute plaintiff’s evidence that the ordinances of the city of Chicago governed the means of access to the light-control booth. In fact, defendant’s architect admitted that the testimony of plaintiffs witnesses concerning the ordinances and the safety standards was correct. He supported the views of plaintiff’s architect witness when he said that had he known that there would be a frequent need for access to the light-control booth, he would have recommended construction of a stairway.

It is not disputed that when plaintiff was injured she was on defendant’s land by its express invitation in connection with its business and in a relationhip where there was a mutuality of benefit. Under these circumstances she was an invitee. (Madraza v. Michaels, 1 Ill.App.3d 583, 586, 274 N.E.2d 635.) An owner or occupant of land who, by invitation, express or implied, induces or leads others to go upon premises for any lawful purpose is liable for injuries occasioned by his negligent failure to keep the land or its approaches in a reasonably safe condition. (Steinberg v. Northern Illinois Telephone Co., 260 Ill.App. 538; Restatement of Torts § 343 (1934).) In this case, where plaintiff’s suit was'based on allegations of defendant’s negligence,' and there was evidence that tended to prove the material averments of the amended complaint as to such negligence, the question whether plaintiff’s injuries were caused by defendant’s negligence was for the jury. (See Wright v. Stech, 7 Ill.App.3d 1068, 288 N.E.2d 648; Holsman v. Darling State Street Corp., 6 Ill.App.2d 517, 128 N.E.2d 581.) In our judgment, the evidence in this record amply supports the jury’s verdict that plaintiff was injured as a result of defendant’s negligence. (Geraghty v. Burr Oak Lanes, 5 Ill.2d 153, 125 N.E.2d 47; Hargis v. Standard Oil Co., 10 Ill.App.2d 119, 134 N.E.2d 518; compare Holt v. A. L. Salzman & Sons, 88 Ill.App.2d 306, 232 N.E.2d 537.

IV.

By its post-trial motion, defendant moved for judgment in its favor notwithstanding the jury’s verdict, or in the alternative, for a new trial. The motion was denied. In this court, defendant pursues the issue whether it was entitled to judgment notwithstanding verdict or in the alternative a new trial. The issue, in our opinion, must be resolved against defendant.

A judgment notwithstanding the verdict should be entered only where all the evidence, viewed most favorably to the party opposing such judgment, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) And as a court of review, we will set aside a verdict as being against the manifest weight of the evidence only when it is obvious, or clearly evident, that the jury arrived at an incorrect result. (McDonald v. Frontier Lanes, Inc., 1 Ill.App.3d 345, 272 N.E.2d 369.) It is error for us as an appellate court to reverse a judgment in favor of the plaintiff and direct entry of judgment for defendant notwithstanding verdict where the jury made a correct determination of the facts. (Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153, 125 N.E.2d 47.) Our review of the record convinces us that the jury’s verdict is supported by the evidence; no facts are shown by defendant which would warrant a ruling in its favor notwithstanding verdict or a reversal for a new trial. Therefore, the judgment is affirmed.

Affirmed.

STAMOS and HAYES, JJ., concur.

        Nosal v. International Harvester Co., 187 Ill.App. 411 (abstract decision).

        Carter v. Winter, 32 Ill.2d 275, 284, 204 N.E.2d 755, 759.

        Mclnturff v. Chicago Title & Trust Co., 102 Ill.App.2d 39, 47, 243 N.E.2d 657.

        Day v. Barber-Colman Co., 10 Ill.App.2d 494, 511, 135 N.E.2d 231, 239.

        Fore v. Vermeer Manufacturing Co., 7 Ill.App.3d 346, 287 N.E.2d 526.

        Wills v. Paul, 24 Ill.App.2d 417, 422, 164 N.E.2d 631, 634.

        Withey v. Illinois Power Co., 32 Ill.App.2d 163, 170, 177 N.E.2d 254, 259.

        Ferguson v. Lounsberry, 58 Ill.App.2d 456, 462, 207 N.E.2d 309, 312, 313.

        Tompkins v. Twin Oaks Dairy, Inc., 91 Ill.App.2d 88, 93, 234 N.E.2d 403, 405.


author: Mr. JUSTICE BURMAN

text:
    Charles Gettemy, Plaintiff-Appellant, v. Joseph F. Grgula, Defendant-Appellee.
    (No. 57854;
    First District (4th Division)
    January 22, 1975.

      Rehearing denied February 18, 1975.

      Wexler and Pecyna, of Chicago (Stanley Jakala, of counsel), for appellant.
    Tim J. Harrington, of Chicago (Thomas J. Brophy, of counsel), for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

Plaintiff, Charles Gettemy, brought an action against Joseph F. Grgula, defendant, for personal injury and property damage arising out of an automobile collision between the parties. At the close of the evidence, plaintiff’s motion for a directed verdict on the issue of liability was denied. The cause was submitted to the jury, and a general verdict was returned in favor of defendant. The jury also answered “yes” to a special interrogatory as to whether plaintiff was guilty of contributory negligence. Plaintiff’s motion for a judgment notwithstanding the verdict was also denied, and plaintiff appeals. No questions are raised on the pleadings.

The impact occurred on December 23, 1965, at the intersection of 28th Street and Keeler Avenue in the city of Chicago. The only witnesses to the collision were the drivers of the respective vehicles. Plaintiff was proceeding north on Keeler Avenue, and defendant was driving west on 28th Street. Both roads have a traffic lane in each direction and a parking lane on each side. 28th Street is controlled by a stop sign at the intersection with Keeler. Defendant came to a full stop at the intersection. Since his vision was obscured by parked vehicles, he pulled forward so as to obtain a better view of oncoming traffic. In so doing defendant entered the lane of traffic on Keeler by approximately 2 feet. The front of defendant’s automobile intersected plaintiff’s car at the right rear door and creased the side to the back comer panel.

Plaintiff primarily contends that it was error for the trial judge to deny his motion for a directed verdict on the issue of liability and also to deny his motion for a judgment notwithstanding the verdict. He strenuously argues that by statute it was defendant’s duty to stop at the point nearest the intersecting roadway where he had a view of approaching traffic and to yield the right-of-way to those vehicles which constituted an immediate hazard. (Ill. Rev. Stat. 1965, ch. 95½, pars. 167(b), (c); 183(c).) In short, it is argued that by failing to yield the right-of-way, defendant was negligent as a matter of law. In the alternative plaintiff contends that a new trial is warranted since the judgment is against the manifest weight of the evidence.

Both parties have cited numerous cases to support their theories. Suffice it to say that each case must rest on its1 own particular facts. In Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, our supreme court laid down the rule that verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever stand. Therefore, if he is to succeed, plaintiff must meet the Pedrick standard not only with regard to a showing of negligence on the part of defendant but also with regard to a showing of freedom from contributory negligence on his part.

Considering the evidence as a whole and the inferences that might be drawn from the circumstances, we cannot say it so overwhelmingly favors plaintiff that no contrary verdict could ever stand. The evidence when viewed in its aspect most favorable to defendant discloses the following facts. Defendant came to a full stop at the stop sign approximately 8 feet from the eastern curb of Keeler. He looked to his left and his right for approaching traffic, but found his vision to be obscured in both directions by parked vehicles on Keeler. In order to obtain a better view, defendant proceeded a short distance forward, and again came to a complete stop. He first looked to the north, and when he subsequently looked to the south, he observed plaintifFs car swerving to avoid an impact. At that time defendant’s automobile protruded approximately 2 feet into the line of traffic on Keeler. Plaintiff expressly admitted that he saw defendant’s car stopped at the intersection. However, there was no testimony that plaintiff sounded his horn, slowed down, or took any other compensating action to avoid a potential collision. Finally, there was testimony that plaintiff’s car came to a stop five or six houses north on Keeler. If this testimony were believed, the inference of excessive speed is indeed clear.

The term contributory negligence eludes precise definition. (Genck v. McGeath, 9 Ill.App.2d 145, 132 N.E.2d 437.) Since each case must be determined from its own particular facts, the question of contributory negligence is one which is pre-eminently for the consideration of a jury. (Moran v. Gatz, 390 Ill. 478.) In the instant case, the jury specifically found that plaintiff was guilty of contributory negligence as is evidenced by its affirmative answer to the special interrogatory. We find that this determination is supported by the record; for there is ample evidence suggesting that plaintiff proceeded recklessly into a known hazard.

While a driver on a preferential highway generally has the right-of-way over drivers on non-preferential roadways, he does not per se have the absolute or unqualified privilege to assert it regardless of the circumstances, distance or speed. The rule prescribing the standard of care for a driver on a preferential highway has been set forth many times. He may not proceed heedlessly into obvious danger. He has a duty to observe due care in approaching and crossing the intersection and to drive as a prudent person would to avoid a collision when the danger is discovered or, by the exercise of reasonable care, should have been discovered. (Conner v. McGrew, 32 Ill.App.2d 214, 177 N.E.2d 417.) Illinois courts have consistently held that it is a function of the jury to determine whether a driver on a preferential highway conformed to the standard of the reasonable and prudent man; and we see no reason to upset the jury’s finding in this case. We have examined the cases cited by plaintiff and find that they are distinguishable on the facts.

Nor can we say that the verdict is against the manifest weight of the evidence. Manifest weight means the clearly evident, plain and indisputable weight of the evidence. (Haas v. Woodard, 61 Ill.App.2d 378, 209 N.E.2d 864.) An opposite conclusion is not clearly evident. The jury saw the witnesses and heard their testimony. They were the sole judges of the credibility of the witnesses. The fact that the jury could have decided the other way is of no moment. This court will not substitute its judgment for that of the jury or the trial judge who entered judgment on the verdict.

For the foregoing reasons the judgment of the Circuit Court is affirmed.

Affirmed.

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