text:
    Benjamin Premack, Plaintiff-Appellee, v. Chicago Transit Authority, et al., Defendants-Appellants.
    (No. 54987;
    First District
    — October 20, 1971.

      George J. Schaller, O. R. Hamlink, Jerome F. Dixon, and Edmund J. Burke, all of Chicago, attorneys for appellants.
    David Alswang, of Chicago, for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

Plaintiff, Benjamin Premack, commenced this action against the defendants, Chicago Transit Authority and Napoleon Smith, the bus driver, for personal injuries allegedly sustained while he was a passenger on a Chicago Transit Authority bus. The Court tried the case without a jury and entered judgment for damages in the amount of $7500 against both defendants.

The Complaint was filed on August 19, 1966. It alleged that on November 22, 1965, plaintiff was a passenger for hire on tibe bus, which was proceeding in a southerly direction on Clark Street, at or near the intersection with Wacker Drive; that while plaintiff was walking towards the rear of the bus, it suddenly and without warning jerked, throwing him with great force against parts of the bus and resulting in injuries to him. Defendant’s answer, filed on September 8, 1966, alleged in material part that the bus was not moving, but was “stopped standing.”

On January 31, 1967, plaintiff filed a series of written interrogatories to defendant Smith. In his answer, the defendant stated that the occurrence specified in the complaint took place “On Clark, between Wacker and Lake.”

The record also shows that pursuant to the suggestion that Benjamin Premack died on December 20, 1967, an order was entered substituting Joseph G. Robinson, Administrator of the Estate of Benjamin Premack, as plaintiff.

The defendants contend that the Court erred in refusing to permit Napoleon Smith to testify upon the basis of section 2 of the Evidence Act, (111. Rev. Stat. 1969, ch. 51, par. 2,) and in the alternative that the damages awarded to plaintiff were grossly excessive.

Irene ICarrels, called as a witness by the plaintiff, testified that she boarded the bus at Clark Street and Wacker Drive. She said that a man paid his fare and walked past her on the bus. The bus then gave a sudden violent jerk which raised her off her seat. She saw the man on the floor of the bus and heard him moan. She told the driver that the man was hurt and he quickly stopped the bus and came to the mans assistance. She placed the location of the bus at the time of the occurrence on Clark Street between Lake and Randolph. On cross-examination, she testified that the bus had moved a distance of almost a block before it jerked.

The defendant, Napoleon Smith, the bus driver, took the stand as a witness, but upon objection by plaintiff, he was barred from testifying under section 2 of the Evidence Act (commonly known as the "Dead Man’s Act”).

We first consider whether the Court improperly refused to permit Napoleon Smith to testify. The record reveals that at the trial plaintiff offered into evidence Interrogatory No. 8 which requested Smith to state “where the occurrence specified in the Complaint occurred.” The defendant’s answer to this interrogatory reads “On Clark, between Wacker and Lake.” The defendants claim that this interrogatory is plaintiff’s sole proof connecting the deceased with the man whom the witness Irene Karrels saw fall on the bus. We must reject this argument. It is clear from the pleadings that both parties proceeded to trial on the assumption that the plaintiff was on the bus driven by Napoleon Smith at the time he was injured. The defendants also stress that the allegation in their answer that the bus was “stopped standing” put into issue whether a moving bus had caused the deceased to fall. The defendants thus argue that by introducing the answer to the interrogatory into evidence, the plaintiff in effect called Napoleon Smith as his witness and thereby waived his right to urge Smith’s incompetency.

The defendants seek to rely on the language of the first paragraph of Section 2 which bars a party from testifying where the opposite party is an administrator “unless when called as a witness by such adverse party.” They advance the novel theory that by introducing the written answer given by the bus driver to plaintiffs interrogatory, plaintiff has in effect called Napoleon Smith as his witness and thereby waived his right to assert Smith’s incompetency. They cite no case or statute to support this point, and we are unable to agree with it.

Defendants rely on Perkins v. Brown, 400 Ill. 490, 81 N.E.2d 207, wherein it is stated that, “The rule is that where a party, who is incompetent to testify for himself as to a transaction, is called as an adverse party and questioned concerning the same, he is thereby made competent to testify in his own behalf as to the whole of such transaction, although his incompetency is not removed as to other matters about which he was not interrogated by the adverse party.” (p. 497.) Ip that case, however, the plaintiff called Brown as an adverse witness to testify as to matters at issue in the case. The introduction of an answer to an interrogatory containing an admission of fact was not involved. The same is true of Chabat v. Kelly, 72 Ill.App.2d 150, 218 N.E.2d 868.

The rule removing the disqualification of a witness when he is called by the protected party as an adverse witness applies only when he is called to testify as an occurrence witness. (Combs v. Younge, 281 Ill.App.339.) If he is called for any purpose other than to testify as to material issues in the case, the disqualification is not removed. Thus in DeYoung v. Ralley, 329 Ill.App. 1, 67 N.E.2d 221, where the defendant in an action for personal injuries called the plaintiff as an adverse witness and interrogated her regarding her admission in a pretrial deposition that she had not seen the other car prior to the collision, the Appellate Court held that defendant’s interrogation of the adverse witness solely in regard to the admission did not make her competent to testify generally in her own behalf. Similarly, in Merchants’ Loan & Trust Co. v. Egan, 222 Ill. 494, 78 N.E. 800, where plaintiff introduced as an admission at trial defendant’s testimony at a prior proceeding in Probate Court, the Court held that plaintiff had not “called” the defendant as an adverse witness so as to render him competent to testify on his own behalf. Likewise, in Garrus v. Davis, 234 Ill. 326, 84 N.E. 924, where the plaintiff in a will contest called a defendant beneficiary for the sole purpose of proving the genuineness of certain letters allegedly written by the witness to the testatrix, the Court held that the witness’ incompetency was not thereby removed.

The same result is required by the Supreme Court Rules, Ill. Rev. Stat. 1969, ch. 110A. Defendants rely on Rule 213(f) which provides that answers to interrogatories may be used in evidence to the same extent as a discovery deposition. While the taking of a discovery deposition does not make the deponent the deposing party’s witness (Pink v. Dempsey, 350 Ill.App. 405, 113 N.E.2d 334), in general, the introduction of that deposition into evidence at trial does. Supreme Court Rule 212(e), however, specifically excepts depositions proving an admission from the general rule. As defendant Smith’s answer to Interrogatory No. 8 was an admission against interest, it is our conclusion that its introduction into evidence at trial did not make him plaintiff’s witness. Therefore, plaintiff did not, by its introduction, waiver his right to assert the bar of Section 2 against defendant’s later testimony on his own behalf.

The defendants raise as a second ground another and separate reason why Smith was a competent witness. When plaintiff called Dr. Shapiro, Premack’s physician, defendants objected that if the doctor’s testimony were admitted, then under Section 2 the defense should be allowed to call Smith as a witness. The objection was overruled. The doctor testified that the patient informed him that on the previous day he had boarded a bus at Wacker and Clark; that as he was walking toward his seat, the bus started off with a violent jerk, causing him to be thrown against a post and to the floor; that following the occurrence he was taken to two hospitals, and that at the second hospital, his chest was taped and he was released. The doctor then related his findings on examination of the patient.

It is undisputed that the doctor’s testimony was admissible under a recognized exception to the hearsay rule. The underlying basis for allowing such testimony is that an injured party will not falsify to the physician from whom he seeks medical aid. Shell Oil Co. v. Industrial Com., 2 Ill.2d 590, 119 N.E.2d 224.

The defendants argue that the admission of the doctor’s testimony made Smith a competent witness. They seek to rely on the exception stated in the second paragraph of section 2 of the Evidence Act which recites:

“Second — When, in such action, suit or proceeding, any agent of any deceased person shall, in behalf of any person or persons suing or being sued, in either of the capacities above named, testify to any conversation or transaction between such agent and the opposite party or party in interest, such opposite party or party in interest may testify concerning the same conversation or transaction.”

The defendants’ contention does not conform to a literal reading of the words of the statute. The statute applies only to testimony by an agent regarding a conversation or transaction between himself and the opposite party or party in interest. In the instant case, however, the doctor, assuming for the moment that he was the agent of the deceased, testified to a conversation between himself and the deceased outside of the presence of the opposite party.

In Cunningham v. Central & Southern Truck Lines, 104 Ill.App.2d 247, 244 N.E.2d 412, the widow of the deceased Cunningham brought an action for wrongful death against Central & Southern Truck Lines, the owner of the truck, and against its driver, Shaver. At the time of the collision, Cunningham was driving his own truck and Montgomery, Cunningham’s employee, was riding beside him. After Montgomery had testified, Shaver sought to testify under the exception in the second paragraph of Section 2. The Court conceded that Montgomery was Cunningham’s agent at the time of the collision but refused to allow Shaver to testify on the ground that Montgomery had not testified to a transaction between himself and the opposite party (Shaver) as contemplated by the statute. The Court went on to say that, “It is only when an agent testifies to a transaction between himself and the opposite party, that the opposite party may testify concerning the same transaction.” (p. 256.)

In Plank v. Holman, 108 Ill.App.2d 216, 246 N.E.2d 694, an executrix in a wrongful death action successfully barred the eyewitness testimony of the opposite parties and then introduced testimony of an accident reconstruction expert. The Court recognized that the combination of the prohibitions of the Dead Mans Act with the admission of expert reconstruction testimony on behalf of the party asserting the benefits of the Act tends to be somewhat unfair to the party whose testimony is barred by the Act. The Court concluded nevertheless that, “it is clear, under existing law, that such testimony is favored and may not be a basis to remove the bar of the Dead Mans Act.” (p. 227.)

The defendants cite several cases in an attempt to establish a more flexible construction of the second paragraph of Section 2. All of them are distinguishable from the case at bar. In Jacquin v. Davidson, 49 Ill. 82, an agent was called to testify regarding a transaction in which he had made a contract on behalf of the deceased with the opposite party for the purchase of corn, and in Marshall v. Karl, 60 Ill. 208, an agent, who had obtained a promissory note for deceased, testified regarding a conversation between deceased and the opposite party.

It is doubtful in any case that Dr. Shapiro can be considered Premack’s agent as that word is used in the second paragraph of Section 2. Defendants argue for a board interpretation of the word “agent.” They rely on Black v. Texas Co., 247 Ill.App. 301, for the proposition that the word “agent” is not confined to situations in which one person is the agent of another in the legal sense. But in that case, the word “agent” did not appear in the context of paragraph two or in fact in the context of any statute. The relevant interpretation of the word “agent” for purposes of the instant case must look to its use in the second paragraph of Section 2. The fact that the word may have a broader meaning in other contexts does not change its meaning under thet Act. Defendants cite no case in which a doctor has been allowed to testify as an agent of a deceased under the second paragraph of Section 2. In each case cited by defendants the purported agent was in fact the deceased’s agent for the transaction at issue in the case and not merely, as here, his agent for making a declaration at trial. Thus we are satisfied on this ground too that the Court correctly ruled that Section 2 should not be abrogated and that the doctor’s testimony did not remove the bar of the Dead Man’s Act.

The defendants also contend that the award of $7500 was grossly excessive. They argue that there is no evidence of loss of earnings or hospital bills and that the plaintiff’s doctor bills amounted to only $365. Dr. Shapiro examined plaintiff on November 23, 1965. He testified that X-rays revealed fractures of the right 6th, 7th, 8th, 9th, 10th, 11th and 12th ribs. He explained that the fractures were not regular, but that the bones were out of line. In addition, he found a contusion of the right rib cage, strain of the muscles of the thoracic region of the spine, strain of the lower part of the right side of the back, strain of the lumbar region and sprain of the left knee. The doctor testified that the injuries were traumatic in origin due to external or traumatic force and could have been brought on within a short period of time before he saw Premack. He also testified that the conditions described above could cause pain and restricted breathing, symptoms of which Premack complained. Dr. Shapiro’s treatment of Premack included infra-red treatments, short wave dithermy and massages. On March 12, 1966, the day on which he dismissed Premack, the doctor found evidence of residual symptoms of pain and restricted breathing. These symptoms, in his opinion were permanent in character.

Defendants contend that the award of damages should be based upon a consideration of medical expenses, loss of earnings and pain and suffering. They argue further that the rough standard for determining the amount of the award is three times the amount of medical expenses plus loss of earnings, absent proof of acute suffering or permanent injury. Although defendants contend otherwise, we believe that the trial judge, in assessing damages, may properly have concluded that the elements of acute suffering and permanent injury were present in this case. In addition, the trial judge may properly have considered the nature and extent of the injury as a separate element of compensable damages. Donk Bros. Coal Co. v. Thil, 228 Ill. 233, 81 N.E. 857.

We have repeatedly held that damages awarded to a plaintiff in a personal injury case will not be set aside unless palpably excessive. (Holsman v. Darling State Street Corp., 6 Ill.App.2d 517, 128 N.E.2d 581.) In Westis v. Aughinbaugh, 6 Ill.App.2d 94, 126 N.E.2d 865, appellant contended that a verdict of $8750 was grossly excessive because plaintiff’s doctor biU was only $700, he was out of work only a short time and he was advanced in years. The AppeHate Court affirmed the verdict, stating that, ‘With the exception of the money actually paid out by the plaintiff for hospital and doctor bffls, there is no exact way of flying the damage that the plaintiff sustained.” (p. 101) The Court took into consideration the plaintiff’s earning capacity and the pain and suffering that he had endured, and would endure in the future, and said, “after considering all of these elements, it is for the jury to say what the damages reaUy are.” (p. 101) The same principles are applicable to the instant case. The evidence discloses that plaintiff incurred fractures of seven ribs with displacement, strains of the back, a sprain of the left knee and residual symptoms of restricted breathing and pain of a permanent nature. The question of damages is peculiarly one for the trier of facts, which can consider the nature and extent of the injuries, pain and suffering and the permanency of the injuries as well as medical expenses and loss of earnings. We are of the opinion that the damages awarded are not excessive. For the reasons stated the judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ADESKO

license: Public Domain

text:
    The People of the State of Illinois, Appellant, v. Willie Boler, et al., Appellee.
    (No. 55013;
    First District
    — October 20, 1971.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Joseph H. Romano, of counsel,) for appellant.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

This is an appeal by the State, pursuant to Supreme Court Rule 604(a), from an order quashing a search warrant and suppressing evidence seized thereunder. The defendants, Willie Boler and Oscar Hubbard, were charged with the offense of gambling. On motion of the defendants, the court suppressed all evidence seized pursuant to the search warrant on the ground that the affidavit in support thereof did not establish probable cause.

On appeal the State contends that the complaint for issuance of the search warrant contained sufficient facts to establish probable cause. It recites in substance that the affiant, Detective Sherwood Williams, received information from a reliable informant and that the affiant had probable cause to believe that gambling paraphernalia was kept in the basement premises at 1536 East 66th Place, Chicago, Illinois. In the past, the informant had furnished information relative to policy gambling on five occasions which had led to five arrests. Large quantities of policy writings (bet slips) and policy result tickets were found at each of the above-mentioned arrests.

The affidavit further recited that the informer had observed the defendant, Willie Boler, printing policy result tickets in the basement at 1536 East 66th Place, Chicago, Illinois. The informant also stated that he had formerly been employed with Boler while working for the Windy City-Big Town-Subway policy wheel. Boler met runners at various locations and distributed result tickets to them.

Detective Williams observed Boler enter the basement at 1536 East 66th Place, empty-handed. Later the defendant, Boler, left carrying a shopping bag. He observed Boler take small brown paper bags from the shopping bag and distribute them to known policy runners. Detective Williams followed Henry Ivory, a known policy runner, after Ivory had received one of the bags from Boler. Ivory was followed to 4307 S. Oakenwald, Chicago, Illinois, where Williams observed Ivory enter and place some white slips partially under a door. After Ivory left, Williams retrieved one of the slips upon which was stamped Windy City-Big Town-Subway. The affiant supported his claim that the informant was credible by obtaining his corroborating evidence.

In Aguilar v. Texas (1964), 378 U.S. 108, the United States Supreme Court stated at page 114:

“The magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant * * 8 was ‘credible’ or his information ‘rehable’.”

In the instant case, the affidavit stated that the informant had been employed with the defendant, Boler, while working for the Windy City-Big Town-Subway policy wheel. The informant personally observed Boler printing policy result tickets in the basement at 1536 East 66th Place. These were the underlying circumstances from which the informant concluded that the gambling paraphernalia was where he claimed it was.

The affiant stated that the informant had given him information relative to policy gambling on five occasions which led to five arrests. Large quantities of policy writings (bet slips) and policy result tickets were found at each of the above-mentioned arrests. In view of the informant’s past correct information, the court had before it some of the underlying circumstances from which the officers concluded that the informant was reliable.

In Spinelli v. United States (1969), 393 U.S. 410, the United States Supreme Court stated at page 415:

“If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained in the hearsay report should then be considered. * * * [The court] must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's tests without independent corroboration.”

The answer to the above question is yes and the search warrant therefore meets the standards set forth in Spinelli.

Accordingly, the search warrant was lawfully issued and it was error to have quashed the warrant and suppress the evidence seized as a result of the search. Therefore, we are reversing the order appealed from and remanding the cause with directions that it be reinstated for further proceedings consistent with this opinion.

Reversed and remanded with directions.

BURMAN and DIERINGER, JJ„ concur.


author: Mr. JUSTICE DIERINGER Mr. JUSTICE BURMAN,

text:
    Sora Loan Corporation, Plaintiff-Appellant, v. Stewart Shlifka et al., Defendants-Appellees.
    (No. 55123;
    First District
    — October 20, 1971.

      BURMAN, J., dissenting.
    Muench & Muench, of Chicago, (James J. Muench, of counsel,) for appellant.
    Stanley F. Kaplan, of Chicago, for appellees.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County, vacating plaintiff’s ex parte judgment. Plaintiff, the Sora Loan Corporation, had loaned the defendants, Stewart and Elaine Shlifka, $1800 and instituted suit for the balance of $1415.35 after the defendants had paid a total of $384.65. Suit was filed in this case after the defendants had filed a bankruptcy petition.

Plaintiff alleged the loan had been made in reliance on a written statement signed by the defendants, stating they owed only three debts totaling $2753 when, in fact, they owed six other creditors amounts totaling $4938.86. Plaintiff alleged it would not have made the loan had it known about the additional debts. The defendants filed an answer, denied any fraud, and stated one debt was a forgery, admitting the other five debts, and set up bankruptcy as a defense. Under the law at that tice, bankruptcy was no defense to fraud.

At a hearing on December 2, 1969, no one appeared for the defendants, and an ex parte judgment was entered for plaintiff for the loan balance of $1415.35. Defendants first became aware of the judgment more than thirty days later, when a garnishment summons was served on the employer of one of the defendants. On February 2, 1970, defendants’ attorney filed his motion to vacate the judgment ten days after learning of the judgment. A motion to strike by plaintiff was sustained and defendants allowed to file an amended petition under section 72. A motion to strike was denied, and the judgment was vacated March 19, 1970.

Defendants’ attorney claims neither he nor his clients appeared for the hearing on December 2, 1969, because he had several other items on his calendar that day and was under the impression plaintiff would ask for a continuance. He stated he assumed he had called the office of plaintiff’s attorney to request a continuance. Plaintiff’s attorney filed an affidavit executed by the three lawyers and a secretary in his office, denying he or any other member of his office received such a telephone call.

The plaintiff complains that the section 72 petition should have been denied because the defendants were not diligent and they did not set forth facts showing a meritorious defense.

The leading cases are Ellman v. DeRuiter (1952), 412 Ill. 285, and Elfman v. Evanston Bus Co. (1963), 27 Ill.2d 609. In Ellman, the court held that a section 72 proceeding could be addressed to the equitable powers of the court when the exercise of such power is necessary to prevent injustice. In Elfman, the court reiterated the holding of Ellman and suggested a default judgment would not be allowed to stand where the plaintiffs would gain an unconscionable advantage. The court also noted, while not conclusive or controlling, the fact that plaintiff delayed execution until after thirty days had expired cast a cloud on the proceedings.

However, in subsequent cases it has become clear that before a final judgment for default may be vacated, the defendant must not only show he has a meritorious defense to the allegations contained in the complaint, but that he also exercised due diligence in presenting his defense. Esczuk v. Chicago Transit Authority (1968), 39 Ill.2d 464; Bartolini v. Popovitz (1969), 108 Ill.App.2d 89. In Esczuk, the court stated:

“Section 72 of the Civil Practice Act substitutes a simple remedy by petition for various forms of post-trial relief and enables a party to bring before the court rendering a judgment matters of fact which, if known to the court at the time judgment was entered, would have prevented its rendition. (Brockmeyer v. Duncan, 18 Ill.2d 502; Glenn v. People, 9 Ill.2d 335.) However, a party may not avail himself of the remedy provided by section 72 unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. [Citations] Such a motion or petition is not intended to relieve a party from the consequences of his own mistake or negligence.’ (Brockmeyer v. Duncan, 18 Ill.2d 502, 505.) The burden is upon the petitioner under section 72 to allege and prove the facts justifying relief.”

In the case at bar the attorney for the defendants was negligent in assuming that a continuance would be granted the first time the matter came up for hearing and by failing to inquire about the future date or checking the court files, had his assumption been correct. The fact he promptly filed his petition to vacate after discovering the default is not controlling.

We regret this matter cannot be disposed of on the merits, particularly since the plaintiff apparently waited for thirty days to expire before issuing a garnishment summons. Nevertheless, we believe the rationale of Danforth v. Checker Taxi Co., Inc. (1969), 114 Ill.App.2d 471, is applicable here:

“To have a case tried on its merits is, of course, the desirable goal, but we must also have rules relating to procedure and even statutes of limitation. Courts are reluctant to dismiss suits for failure to comply with procedural rules and court orders intended to enforce them, but there are circumstances under which that must be done or the whole system will bog down. That which would best serve the interests of the dilatory party is not the only factor to be considered. The argument that fundamental fairness demands a trial on the merits might be persuasive if urged in the trial court before the expiration of the thirty day period, the current substitute for term time. Disregard for procedural rules intended to expedite the disposition of litigation can only contribute to the problem those rules were designed to ameliorate. Considering the enormous backlog of cases confronting our courts # * * we cannot be indifferent to procedural rules such as those here involved. A general understanding that section 72 was always available for relief regardless of neglect in failing to comply with court orders would add to the case load and penalize those who obey the court’s orders by subjecting them to further delay.”

For these reasons, the decision of the circuit court of Cook County is reversed and the cause remanded with directions to reinstate the judgment.

Reversed and remanded with directions.

ADESKO, P. J., concurs.

Mr. JUSTICE BURMAN,

dissenting:

The trial judge, in the exercise of his sound discretion, vacated the ex parte judgment and permitted the defendants to have their day in cotut. I perceive no abuse of discretion and would affirm.

The primary question on this appeal is whether the defendants exercised due diligence prior to the entry of the default judgment against them. Upon being served with summons, the defendants retained counsel. An appearance and an answer setting forth a meritorious defense was filed. Stanley F. Kaplan, the attorney of record for the defendants, testified that the course was set for trial on December 2, 1989, and that it was his understanding that the case was going to be continued since it was up for the first time. Defendants’ attorney explained that he had four things on that morning and could not handle all of them at once. Although the plaintiff contended otherwise, defendants’ attorney testified and the trial judge found that Kaplan called plaintiff’s attorney to request that he get a continuance. Relying on his understanding that the case would be continued, neither he nor his client appeared. Defendants did not learn that judgment had been entered until Mrs. Shlifka’s employer received a garnishment summons more than 30 days after entry of judgment. Within ten days after receiving notice of the judgment, defendants filed their petition to vacate.

This court has repeatedly held that “while no duty is imposed upon a party or counsel to sue out an execution promptly in order to inform a defendant of a default within the thirty day period, yet failure to do so is a circumstance which casts a cloud upon the entire proceeding. Ellman v. De Ruiter, * * * [412 Ill. 285, 106 N.E.2d 350.] On a petition to vacate, the court may properly take it into account in appraising the worth of the defense to the petition.” Jansma Transport, Inc. v. Torino Baking Co., 27 Ill.App.2d 347, 354, 169 N.E.2d 829, 832. See, e.g., Elfman v. Evanston Bus Co., 27 Ill.2d 609, 190 N.E.2d 348 and Gary Acceptance Corp. v. Napilillo, 86 Ill.App.2d 257, 230 N.E.2d 73.

Since Ellman v. De Ruiter, 412 Ill. 285, 292, 106 N.E.2d 350, 354, Section 72 motions have been “addressed to the equitable powers of the court, when the exercise of such power is necessary to prevent injustice.” Thus petitions to vacate default judgments have been aUowed, when due diligence and a meritorious defense are shown, in order to adhere to the preference for a determination on the merits. “An ex parte trial in a contested matter should be condoned only as a last resort.” Vosnos v. Wenzel, 44 Ill.App.2d 192, 197, 194 N.E.2d 484, 487.

In the instant case, defendants’ counsel had filed an appearance and an answer setting out a meritorious defense. As we stated in Wolder v. Wolder, 30 Ill.App.2d 98, 173 N.E.2d 546, a simple glance in the court file by the trial judge would have disclosed a contested matter and a phone call by the court’s baffiff or clerk to the absent counsel whose name appeared on the pleadings would have obviated the necessity of disposing of the litigation by way of a default hearing. Moreover, plaintiff’s attorney, while obviously aware that the defendants were contesting plaintiff’s claim, made no attempt to phone his opposing counsel when the matter came on for trial. We have said that courtesy among lawyers should be the rule rather than the exception. Stidham v. Pappas, 78 Ill.App.2d 402, 223 N.E.2d 318.

In the recent case of Libert v. Turzynski, 129 Ill.App.2d 146, 262 N.E.2d 741, defendant’s attorney had withdrawn his appearance but defendant had no notice of that fact until some 19 days before trial. On the advice of a deputy clerk, he left his phone number in the file requesting notification of the trial date. When the case was called for trial, the defendant failed to appear. A conscientious trial judge examined the file. Despite the fact that there was no appearance on file, the judge attempted to phone the defendant, and when he was unable to complete the caU because of a clerical error in which the digits in defendant’s phone number had been transposed, he called aH of defendant’s previous attorneys before entering the order of default. The AppeUate Court, in reversing the trial comt’s denial of the petition to vacate, noted that since the default had been taken on the first setting of the case, it would cause no hardship upon the plaintiff to go to trial on the merits.

The facts in the instant situation present an even stronger case for relief. Here the defendants had filed an appearance and an answer setting forth a meritorious defense to a claim for the balance due on a loan and it was clear that they intended to contest the action. The trial judge found that defendants’ attorney exercise due diligence in phoning plaintiff’s counsel to ask that he get a continuance, and in filing his petition to vacate within ten days after receiving notice of the judgment. The plaintiff, on the other hand, while obviously aware that defendants intended to contest the matter, did not attempt to contact his opposing counsel when the matter came on for trial, and then waited more than 30 days to sue out an execution on the judgment. Under such circumstances, I cannot say that the trial judge abused his discretion in exercising his equitable powers to vacate the default judgment and grant the defendants the day in court which is their due.


author: Mr. JUSTICE BURMAN

text:
    Charles Jere Albright, Plaintiff-Appellee, v. Louis A. M. Phelan, et al., Defendant-Appellant.
    (No. 55264;
    First District
    — October 20, 1971.

      Miller, Hickey & Close, of Rockford, and Richard F. McPartlin, of I Chicago, for appellant.
    Coghlan & Joyce, and William J. Nellis, of Chicago, for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

Plaintiff, Charles Jere Albright, instituted an action for declaratory judgment on November 25, 1968, alleging that defendant, Louis A. M. Phelan, had breached two contracts executed with plaintiff and had conspired with other defendants not involved in this appeal to deprive plaintiff of the benefit of those agreements. Plaintiff sought a declaration regarding the validity of the contracts and the rights and obligations of all interested parties, damages and an injunction to restrain defendants from interfering with plaintiff’s contractual rights. Defendants moved to dismiss the complaint on the ground that the complaint failed to set forth allegations necessary to bring the action within the provisions of the Declaratory Judgments Act. (Ill. Rev. Stat. 1969, ch. 110, par. 57.1.) This motion was denied on February 14, 1969. Defendants filed an answer to the complaint, and the cause proceeded to trial without a jury. During the course of the extended trial, the defendants moved to dismiss the complaint at the close of plaintiffs evidence and again at the close of all the testimony on the ground that resort to declaratory judgment procedures under the allegations of the complaint and the evidence was improper. Both motions were denied. Judgment for plaintiff was entered and the defendant Louis A. M. Phelan appeals.

The defendant appeals solely from the orders of the trial court denying the motions to dismiss the complaint. He has not included the record of the trial and does not assign as error the sufficiency of the evidence. The record shows that the defendant conceded during the entire proceedings that plaintiff’s complaint did state a cause of action. Thus the sole issue before us is whether the trial corut abused its discretion in denying the motions of the defendant to dismiss the complaint on the ground that it did not set forth a proper case for relief under the Declaratory Judgments Act.

Defendant argues that where a cause of action has already accrued which is justiciable in a well recognized and traditional form of action, a suit for declaratory relief may not be maintained. He contends that the instant case is one which could have been readily resolved in an action for breach of contract and therefore, the trial court ought to have dismissed the declaratory judgment suit. Although the rule for which defendant contends may find proper application in some cases, for reasons to be stated, we do not believe that this is such a case.

In Count I of the complaint plaintiff alleged in substance that he invented a pressure-fryer machine and a method of cooking foods therein and applied for patents; that on May 8, 1968, he entered into a contract with Phelan wherein at the request of Phelan he disclosed his invention to him in strict confidence and Phelan, agreed to pay him the sum of $10,000 in advance, and that he agreed to grant Phelan a single and nonrenewable option to purchase all of his rights and interest in those inventions. The complaint further alleged that a prior agreement between the parties had been executed on December 12, 1967. Copies of both contracts were attached as exhibits. Under the contract of December 12, 1967, plaintiff agreed to assign to defendant his patent applications for a food broiling apparatus and for facilities for cooking and assembling portioned food products, and defendant agreed to provide or license appropriate concerns to manufacture and market such devices and to pay plaintiff a 3% royalty of net sales or a minimum annual royalty of $30,000. Plaintiff alleged that he had complied with all the terms and conditions of the two contracts, but that defendant Phelan had breached the contracts and had wilfully conspired with others to deprive him of the benefit of the agreements and was in default. Plaintiff prayed that the declaratory judgment provisions of the statutes be invoked for determination of the matters at issue, including the rights of all parties under the contracts and the amount of damages due him. In Count II, plaintiff repeated the allegations made in Count I and asked that the defendants be restrained from interfering with his contractual rights.

Defendant moved to dismiss the complaint, which motion was denied. He then filed an answer denying that plaintiff was an inventor and had invented the claimed devices. He also denied that the contracts dated May 8, 1968, and December 12, 1967, and attached to the complaint were the same ones he had signed, and alleged that because of his poor eyesight he was unable to read the agreements and that plaintiff read different agreements to him which he signed. The cause proceeded to trial. During the course of trial, defendant made two more motions to dismiss, both of which were denied. After the conclusion of the trial, plaintiff filed an amended complaint repeating in substance the allegations made in the original complaint, but mating specific charges against Phelans co-defendants. Defendants filed an amended answer. The court entered judgment for plaintiff, in which it declared, in part, that the contract of December 12, 1967, was valid and enforceable; that plaintiff and defendant were entitled to specific performance of the contract; that Phelan had right, title and interest to the patent applications, and that defendant owed plaintiff $75,000 in royalty payments. The court also ordered defendant to pay plaintiff the 3S royalty of net sales as specified in the contract and enjoined the defendants from interfering with plaintiff’s contractual rights.

The defendant argues that the issue is one that could have been readily resolved by resort to an action at law for breach of contract; that declaratory judgment will not be granted under the provisions of the Declaratory Judgments Act where a cause of action has already accrued which is justiciable in a well recognized and traditional form of action; that the complaint does not seek to have present rights in an existing contract declared in a preventative fashion, but, rather, seeks to have them enforced and executed after the fact, and that the complaint discloses no uncertainty as to plaintiff’s present and existing status under the terms of the contract and discloses no ambiguity of its terms. In other words, the defendant insists that the suit in fact is for damages based on a breach of contract which has already accrued and therefore is not a proper subject for a declaratory judgment action.

The Declaratory Judgments Act provides that “no action or proceeding is open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including * # * the construction of any * # * contract or other written instrument, and a declaration of the rights of the parties interested. The foregoing enumeration does not exclude other cases of actual controversy.”

We recognize that the existence of another remedy has an important bearing upon the question of whether declaratory relief will be granted to the parties. In its most recent decision dealing with the question, the Supreme Court stated that in its opinion the words of the statute indicate that the statute was not intended to bar an action for declaratory judgment merely because of the existence of alternative available forms of relief. (Kupsik v. City of Chicago, 25 Ill.2d 595, 185 N.E.2d 858.) Justice Schaefer speaking for the Court stated, “In the early days of the declaratory judgment in this country, some courts held that a declaration of rights could not be had if any of the ordinary forms of relief were available. (See Borchard, Declaratory Judgments, Chap. VI.) To avoid such a result, our statute, like the Uniform Declaratory Judgments Act, makes it clear that a declaratory judgment is not precluded by the availability of other relief. (Ill. Rev. Stat. 1961, ch. 110, par. 57.1; Uniform Declaratory Judgments Act, sec. 8; 9A Uniform Laws Ann., p. 204.) The declaratory judgment has thus become an optional alternative remedy.” (p. 598)

In the Historical and Practice Notes to the Act, Ill. Ann. Stat. 1968, ch. 110, par. 57.1, Messrs. Jenner and Tone make the following statement regarding the purpose of the Act:

“The remedy is not designed to supplant existing remedies, nor afford a new choice of tribunals. It supplies a new form of relief where needed. It is designed to afford security and relief against uncertainty with a view to avoiding litigation, rather than in aid of it, and to settle and fix rights before there has been an irrevocable change of position of the parties in disregard of their respective claims of right, and thus promote peace, quiet and justice, with the end always constantly in view that one of the chief purpose is to declare rights rather than to execute them.” (p. 128)

Defendant argues that plaintiff does not seek to have his rights declared in a preventative fashion, but rather to have them executed after the fact. It seems clear to us, however, that by invoking the declaratory judgment form of action, plaintiff has furthered the statutory purpose of settling and fixing the rights of the parties and avoiding future litigation. Moreover, Messrs. Jenner and Tone state that “declaratory relief may be had as weH after as before the stage of relief by coercion has been reached.” (p. 127)

In Koziol v. Village of Rosemont, 32 Ill.App.2d 320, 177 N.E.2d 867, we said, “Actions brought under the Declaratory Judgments statute are neither legal nor equitable, but sui generis. The statute provides for the entry of a declaratory judgment, decree or order, which takes the character of the nature of the relief declared. (Freeport Motor Cas. Co. v. Tharp (1950), 406 Ill. 295, 299, 94 N.E.2d 139.) The scope of the declaratory judgment remedy should be kept wide and liberal and not restricted by technicalities. The important point is the right and duty of the courts to grant declaratory relief where, in the interests of the proper administration of justice, it ought to be granted regardless of how the particular action in which the declaratory relief is sought, may be classified. Declaratory relief is not ‘defeated by the mere existence of another form of action which could presently be employed’ * * * The tendency seems to be to liberalize the use of the declaratory judgment action and for the court to take jurisdiction, notwithstanding there is an adequate remedy by some other means. If there is no particular reason for denying the use of the Declaratory Judgment statute, even though the case presented may come within the scope of some other remedy, the declaratory judgment action should still be used.” (pp. 327-8)

In LaSalle Cas. Co. v. Lobono, 93 Ill.App.2d 114, 236 N.E.2d 405, the trial court dismissed a declaratory judgment suit on the ground that there was an adequate remedy at law. In reversing, the Appellate Court said, “That an adequate legal remedy exists is not grounds for refusing to entertain a complaint for declaratory judgment as the mere existence of another form of remedy does not necessarily preclude judgment.” (p. 118.) See also Elm Lawn Cemetery Co. v. City of Northlake, 94 Ill.App.2d 387, 237 N.E.2d 345, and Young v. Hansen, 118 Ill.App.2d 1, 249 N.E.2d 300.

The defendant relies heavüy on Goldberg v. Valve Corp. of America, 89 Ill.App.2d 383, 233 N.E.2d 85. In that case, plaintiff commenced an action for a declaration of rights under the terms of a written contract of employment and appealed from an order striking his complaint for failure to state a cause of action for declaratory relief. The AppeHate Court in affirming stated that the Complaint did not disclose any uncertainty as to plaintiff’s present and existing status under the contract. The Court held that “the contractual relationship having been severed, the only bona fide issue presented by the complaint was whether or not plaintiff’s discharge was justified, a question reserved for a traditional action ex contractu.” (p. 391) In the case at bar, an actual controversy existed as to whether the alleged contracts were entered into by the parties and as to plaintiff’s rights and defendant’s obligations. Plaintiff properly sought to have his rights declared and to prevent future contractual breaches by the defendant. The fact that plaintiff requested money damages or other incidental relief did not diminish the avaHability of declaratory relief. (Greene v. Gust, 26 Ill.App.2d 2, 167 N.E.2d 438.) Moreover, in Goldberg, the plaintiff sought to avoid the duty to mitigate his damages by choosing the declaratory form of action. Plaintiff, in the instant case, sought no such advantage under the substantive law.

In Goodyear Rubber Co. v. Tierney, 411 Ill. 421, 104 N.E.2d 222, plaintiff filed a petition for declaratory judgment to declare that certain tax assessments were invalid and void. After a trial, the Court found that the petitioner had not exhausted his statutory legal remedies and dismissed the petition. In affirming, the Supreme Court held that plaintiff had an adequate remedy under the Revenue Act which he should have pursued in questioning the legality of the assessments. In Amer. Civil Liberties Union v. Chicago, 3 Ill.2d 334, 121 N.E.2d 585, the Supreme Court emphasized that the rule announced in Goodyear was fashioned for actions challenging the validity of tax assessments. The Court said of its decision in Goodyear, “We there held only that a plaintiff desiring to challenge the validity of a tax assessment must pursue the statutory remedies provided by the Revenue Act * * * The case in no way suggests that an action for declaratory relief is defeated by the mere existence of another form of action which could presently be employed.” (p. 353)

In Trossman v. Trossman, 24 Ill.App.2d 521, 165 N.E.2d 368, the dismissal of a complaint seeking declaratory relief was reversed and remanded. The Court found that a concrete justiciable cause of action existed and that the dispute was more than merely hypothetical and abstract. The defendant finds comfort in the dictum of the AppeHate Court that “it is also the law that since the declaratory judgment statute was not designed to supplant existing remedies declaratory relief as a general rule wiU not be granted for a cause of action which has already accrued which is justiciable in a weH-recognized form of action. 16 I.L.P., Declaratory Judgments, sec. 2. It would seem to be clearly apparent that if an action for declaratory judgment could only He when some other legal remedy was available, the passage of the Act would have been idle. Between ScyHa and Charybdis there is a narrow but plain channel.” (p. 526) We befieve that in a proper case the aforementioned rule could prevail. In the instant case, however, where an actual controversy regarding the vafidity of the contracts and the parties’ rights and obfigations under them existed, a declaratory judgment action could best serve to fix the rights of the parties and avoid future fitigation. We believe that a proper case for declaratory relief was presented.

For the reasons stated, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


text:
    Donald E. Cohen, Plaintiff-Appellant, v. Washington National Insurance Company, Defendant-Appellee.
    (No. 55532;
    First District
    — October 20, 1971.
    Gordon and Cohen, of Highland Park, for appellant.
    Elmer M. Walsh, Jr., of Chicago, for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

On August 17, 1962, defendant Washington National Insurance Company, issued a “Lifetime Medical Protection" policy, LMP 8599967 to plaintiff, Donald E. Cohen. On November 4, 1964, a son, Chester, was born to plaintiff and his wife with congenital corneal opacity of the right eye (blind white eye). The child’s parents sought medical and surgical advice for treatment with eye doctors and oculists, incurring certain expenses for which plaintiff filed a claim pursuant to the terms of the policy. Defendant denied payment.

Plaintiff filed a two-count verified complaint for recovery of medical expenses, including a prosthetic appliance and the costs of hospitalization of the child. A jury returned a general verdict for defendant and judgment was entered on the verdict. Plaintiff raises the following six issues for review:

1. Whether the insurance policy covered insured’s $422.52 loss.

2. Whether the insured’s motion for summary judgment in the amount of $422.52 should have been granted, either on plaintiff-insured’s motion, or by the court on its own motion pursuant to Civil Practice Act, Section 68.1(2).

3. Whether an insurance company may effectively expand a $50 deductible policy provision into a larger amount by internal computations of its own, without written provisions of the policy enabling it to do so.

4. Whether the jury’s failure to find in favor of plaintiff, based upon plaintiff’s tendered instruction (E-10) was reversible error, or against the manifest weight of the evidence.

5. Whether the court erred as a matter of law in failing to grant insured’s motion for judgment on the pleadings.

6. Whether the court erred as a matter of law in failing to direct the jury to return a separate verdict upon each count of the complaint. Plaintiff did not present to this court a record of the proceedings which

took place before the trial court. The parties stipulated that the following documents be included in the excerpts from the record:

1. Complaint including a copy of insurance policy.

2. Demand for bill of particulars.

3. Bill of particulars.

4. Trial Exhibits Nos. 4, 5, 6, 7, 9, 10.

5. Plaintiff’s tendered and given exhibits.

6. Plaintiff’s post trial motion.

7. Notice of appeal and proof of service.

8. Praecipe for record and proof of service.

The defendant contends that the burden rests on the plaintiff to present a record which establishes reversible error and that the reviewing court cannot review motions and rulings which do not appear of record.

We are mindful of various Supreme Court rules to which plaintiff refers in his brief. The designated parts of the record consisting of the documents presented to this court do not give us enough facts and law upon which we could base our decision.

“A party prosecuting an appeal must furnish material essential to the disposition of the appeal. Matters de hors the record cannot be considered. In the absence of a report of proceedings or an agreed statement of facts it is presumed that the evidence supported the trial court’s decision.” Perez v. Janota (1969), 107 Ill.App.2d 90, 246 N.E.2d 42.

We have no way of knowing what evidence was presented or what evidence was considered by the trial court. As was said in Housewerth v. Seidel (1964), 47 Ill.App.2d 112, 197 N.E.2d 271:

‘We know some of the evidence, but we do not know the entire evidence heard by the court. We do know what is contained in the exhibits, but we cannot assume that this was the whole evidence and we cannot give weight to the unsupported assertion of counsel, dehors the record * ” *. [W]e must assume that the evidence supported the judgment of the court.”

In a more recent case, the Illinois Supreme Court said in Gille v. County Housing Auth. (1970), 44 Ill.2d 419, 255 N.E.2d 904: “* # * and we have consistently held that matters not properly in the record wiU not be considered on review by this court.”

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

Judgment affirmed.

BURMAN and DIERINGER, JJ., concur.


author: Mr. JUSTICE DEMPSEY

text:
    Lucille Winston, Plaintiff-Appellee, v. Chicago Transit Authority, Defendant-Appellant.
    (No. 55354;
    First District
    — October 21, 1971.

      George J. Schaller, O. R. Hamlink, and Paul Denvir, of Chicago, for appellants.
    Washington, Kennon, Bryant & Hunter, of Chicago, for appellee.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

Lucille Winston, a pedestrian, was injured on an early November morning when she was struck by a Chicago Transit Authority bus at 37th Place and Cottage Grove Avenue, Chicago. A jury returned a verdict against the C.T.A. and the driver of the bus. The C.T.A.’s contentions on appeal are that the court erred in instructing the jury and in denying its motion for judgment notwithstanding the verdict.

Mrs. Winston lived on 37th Place, a street which ends at Cottage Grove. She left her home at 6:15 A.M. to go to work. It was dark and raining and she wore a scarf around her head and carried an open umbrella. She walked on the north side of 37th Place to Cottage Grove, a four-lane street running north and south, where she hailed a northbound taxicab. Tire cab stopped on the east side of Cottage Grove and she stepped off the west curb to cross the street. A C.T.A. bus coming from the north attempted to stop and skidded on the wet pavement; its rear end swung to the west and struck her.

The driver of the bus testified that he was driving in the center lane at about 20 to 25 miles an hour. He saw Mrs. Winston leave the curb and run out into the street. Her head was down and covered. She kept running toward the center of the street and when she was about four feet from the center line and 20 or 30 feet from the bus he sounded his horn, applied his brakes and swung the bus all the way to the left and into the northbound lane. The bus skidded 20 or 30 feet, “fishtailed” to the right and came to a stop south of 37th Place where it struck a truck parked on the east side of Cottage Grove. He got out of the bus and saw Mrs. Winston lying near the center line of the street, back of the rear door and a foot and a half from the right side of the bus.

Mrs. Winston testified that after stepping off the west curb she looked both ways and saw a bus to her left near 36th Street. She took a step or two farther and suddenly became aware that the bus was approaching in the lane in which she was standing. She stepped or jumped toward the curb but did not know what happened after that. She blacked out. She regained consciousness before being taken away in an ambulance and requested someone to ask' her neighbors to take care of her children.

A letter carrier, the only bus passenger who testified at the trial, contradicted the driver. He said the bus was traveling 40 miles an hour before it struck Mrs. Winston. He saw her leave the curb and felt the bus swerving around just after she stepped off. After accepting a witness card from the driver, he left the bus. Its rear end was then in the middle of the street and Mrs. Winston was lying near the back wheel.

The only other eyewitness testified for the defense. However, he corroborated Mrs. Winston in respect to her location and the location of the bus. He was standing close to the intersection and saw her as she came to Cottage Grove. He heard the screeching of brakes as she took her first step from the curb. She was two or three steps from the curb when the bus, which was on the right side of the street, slid to the west; its back end swerved and collided with her. He contradicted Mrs. Winston in respect to her umbrella, stopping after entering the street and stepping back to the curb. He said she was holding the umbrella down over her face and that she did not stop walking from the time she was on the sidewalk until she was hit.

The C.T.A. first contends that its motion for judgment notwithstanding the verdict should have been allowed because the evidence, when viewed in its aspect most favorable to Mrs. Winston, so overwhelmingly favored the C.T.A. that the verdict for her could not stand. It argues that her description of the accident must be rejected because the location of the bus before and after the cofiision, as weH as her position on the street after the collision, make her version of the occurrence unsupportable.

The driver testified that the bus was traveling in the lane next to the center line but the testimony of the other witnesses was not so clear on this point. Mrs. Winston said the bus was coming toward her in the lane in which she was standing and she was only a step or two away from the west curb. The defendant’s own witness said it was on the right-hand side of the street. The location of the bus after the accident, on the other hand, was definitely established. It was facing east or southeast and most of it was across the northbound lanes of Cottage Grove. Mrs. Winston’s position after the accident was likewise established. The witnesses who testified on this point placed her close to the rear wheel of the bus.

Mrs. Winston’s position and the location of the bus after the accident do not conclusively prove that the driver’s story of the occurrence was accurate and Mrs. Winston’s inaccurate. Although she was the only person who testified that she returned to the curb to avoid being struck, the two disinterested witnesses placed her very close to the curb. They both testified that she had just stepped from the curb when the rear of the bus swept into her. The driver himself said it fishtailed. By “fishtailing” he meant that it sort of “flopped around,” that the rear of the bus swung out “farther than the front.” The jury could have found that the force of the whip-action by a speeding vehicle operating on a slippery surface could have propelled her into the street.

The jury was fully apprised of the physical facts surrounding the accident and it was also aware that certain detafis of Mrs. Winstons testimony differed from what she stated at a pre-trial deposition. Since the evidence was conflicting and substantial questions of fact were in dispute, and since different inferences could be drawn from those facts, the determination of the truth depended upon the jury’s evaluation of the credibility of the witnesses. (Horst v. Morand Bros. (1968), 96 Ill.App.2d 68, 237 N.E.2d 732.) This court cannot set aside the jury’s verdict when, as here, evidence favorable to the plaintiff and reasonable inferences from that evidence support the verdict.

Incidental to its first contention, the C.T.A. argues simultaneously that Mrs. Winston was guilty of contributory negligence as a matter of law because — her vision being obscured by her umbreHa — she either walked into the bus or ran to the middle of the street and into the path of the bus. This argument, of course, is based on the testimony favorable to the defendant; it ignores aH testimony favorable to the plaintiff.

For the trial court to find contributory negligence as a matter of law, it must be shown that aH the evidence bearing upon the plaintiffs negligence, when viewed most favorably toward her, so overwhelmingly establishes her negligence that no verdict in her favor could ever stand. (Moore v. Checker Taxi Co. (1971), (Ill.App.2d), No. 54981, filed 7/15/71; Maddox v. Grisham (1970), 124 Ill.App.2d 421, 260 N.E.2d 336.) What evidence constitutes contributory negligence must be determined from the facts and circumstances of each case. (Murad v. Witek (1964), 48 Ill.App.2d 137, 199 N.E.2d 809.) Whether Mrs. Winston was guilty of negligence in failing to observe the bus before she entered Cottage Grove, or whether she failed to take sufficient precaution for her own safety once in the street, presented qustions of fact and not of law. The jurors were instructed as to the law of contributory negHgence, they observed the witnesses, heard their testimony and saw several pictures of the intersection. There is no reason to upset the determination implicit in their verdict that Mrs. Winston was not contributorily negligent.

The C.T.A.’s final assertion of error is that one of its tendered instructions was refused. The instruction, which the court declined to give, stated:

“There was in force in the City of Chicago at the time of the occurrence in question a certain ordinance which provided that:

‘27-284 Pedestrian crossing.

‘(a) No pedestrian shah cross a roadway at any place other than by a route at right angles to the curb or by the shortest route to the opposite curb except in a marked crosswalk.
“b) No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.’
“If you decide that a party violated the ordinance on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was contributorily negligent before and at the time of the occurrence.”

A party to a lawsuit has the right to have the jury instructed upon its theory of the case when that theory is supported by the pleadings and evidence. (Vincent v. Wesolowski (1967), 87 Ill.App.2d 477, 232 N.E.2d 120.) The object of instructions is to clearly inform the jury of the issues presented, the principles of law to be apphed and the necessary facts to be proved to justify a verdict. (Warnes v. Champaign County Seed Co. (1955), 5 Ill.App.2d 151, 124 N.E.2d 695.) Where no prejudice is shown the refusal to give an instruction cannot be deemed reversible error. McManus v. Feist (1965), 76 Ill.App.2d 99, 221 N.E.2d 418; Kortlander v. Chicago Transit Authority (1965), 56 Ill.App.2d 48, 205 N.E.2d 516.

Subparagraph (a) of the instruction had no application to the evidence. There was no testimony that Mrs. Winston crossed Cottage Grove at a diagonal and the defense does not contend there was. AU testimony indicated that she started across the street at a right angle to the curb. This was also the impression of the trial judge who so stated when he refused the instruction. [InexpHcably, however, the driver stated under cross-examination that after reaching the middle of the street she moved north toward his bus. The C.T.A. has made no point of this and the attorneys on appeal, who were also the trial counsel, offered no explanation for this part of his testimony.]

Subsection (b) of the tendered instruction touched on one phase of the defendant’s theory: running into the path of the vehicle. But it was not the C.T.A.’s contention and not the testimony of the driver that she suddenly left the curb. The driver said he saw her standing on the curb and saw her enter the street. At this point he was alerted but not alarmed; he neither blew his horn nor slowed down. He said he watched her as she moved into the street and when he saw that she was not going to stop, he braked his bus, sounded his horn and swung to his left. Her action was not the unexpected bolting into the path of an oncoming vehicle contemplated by the ordinance.

In view of the inapplicability of sub-section (a) the instruction as submitted was defective. The plaintiff, however, did not object to the instruction on this ground. Sub-section (b) while not entirely consonant with the defendant’s theory was partially so, and it could well have been given. Neverthless, the failure to do so was not prejudicial.

The jury was instructed that it was necessary for the plaintiff to exercise due care for her own safety. The jury was also instructed pursuant to the defendant’s request that there was a City ordinance which provided:

“Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.”

Whether or not the crosswalk was marked at the intersection of 37th Place and Cottage Grove was not clear from the testimony or exhibits. This instruction informed the jurors that if Mrs. Winston was not walking in a marked crosswalk she was obligated to yield the right of way to the bus and if she failed to do so that fact could be considered by them in determining whether she was contributorily negligent. Thus, even if the jury considered that part of the driver’s testimony about her turning north, she would have been outside the crosswalk — marked or unmarked — and the jury was instructed that under this circumstance her failure to yield the right of way would be a violation of the ordinance.

The jury was thus sufficiently apprised of the defendant’s theory that they would not be liable for the plaintiff’s injuries if, by failing to yield the right of way, she put the bus driver in such a position that he could not avoid striking her. Instructions are to be considered as a whole and the failure of the trial court to inform the jury of the ordinance set forth in the defendant’s refused instruction would not warrant reversal. Cole v. Chicago E. R. R. Co. (1961), 33 Ill.pp.2d 10, 178 N.E.2d 401. The judgment is affirmed.

Judgment affirmed.

McNamara, P. J., and McGLOON, J., concur.


author: Mr. JUSTICE DEMPSEY.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lawrence Fiorentino, Defendant-Appellant.
    (No. 54783;
    First District
    — October 21, 1971.
    Sherman, Schachtman & Stein, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Brent Carlson, Assistant State’s Attorney, of counsel,) for appellee.
   Opinion by

Mr. JUSTICE DEMPSEY.


author: Mr. JUSTICE LORENZ

text:
    Robert B. Kalnitz, Plaintiff-Counter Defendant-Appellee, v. Ion Exchange Products, Inc., et al., Defendant-Counter Plaintiff-Appellants.
    (No. 54564;
    First District
    — October 22, 1971.

      Shulman, Shulman & Abrams, and Jerome H. Torshen, Ltd., of Chicago, for appellant.
    Warren J. Carey, of Chicago, for appeUee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Kalnitz brought this action for a declaratory judgment seeking a declaration that he was free to compete with Ion Exchange Products, Inc. (hereinafter referred to as Ion), who, by way of counterclaim sought to enjoin such competition. The court found for Kalnitz on aU issues raised by the complaint and counterclaim thereby aUowing him to lawfully compete with Ion.

The counterclaim filed by Ion was based upon an agreement entered into between the parties in 1960, the trust and confidence reposed in i Kalnitz by Ion, the great expenditures incurred by Ion in the develop- ' ment of its customer’s relations and the trade secret status of its customer and technical data. Ion has abandoned some of those contentions and in this court contends that the trial judge did not properly apply existing law to the facts of the case. Specifically Ion contends: (1) that its customer lists are entitled to protection because of their confidential nature and the considerable effort and expense which went into their development, and (2) that because Kalnitz held a position of trust and confidence he may not use or disclose confidential information obtained in the pursuit of his employment.

Since Ion, a water treatment service firm, was incorporated, in 1965 Irving Reichstein was its president and general manager. He was also president and general manager of Zerosoft Water Company (hereinafter referred to as Zerosoft), incorporated in 1960, which was dissolved and its assets absorbed by Ion in 1964. At the time of the mutual existence of Ion and Zerosoft the same employees were engaged in the operation of both firms.

In May of 1960 Robert Kalnitz began his employment with Zerosoft, a firm which had only six or seven employees at peak periods. On November 3, 1960, a document was signed by Kalnitz wherein he agreed both to protect the trade secrets of Zerosoft and Ion and not to engage in competitive activity within 150 miles for a period of one year after leaving the employ of those firms. Later that same month Kalnitz was discharged. Although denied by Kalnitz, Reichstein testified that this was not a discharge but only a temporary leave of absence which he suggested to enable the firm to have a smaHer payroH in a time of financial difficulty. In early September, 1961 Kalnitz returned to Zerosoft and remained with the firm and its successor, Ion, until March 24, 1969.

Although the firm did have some sales representatives in other parts of the country and did hire some salesmen on a short-term basis, during most of the time Kalnitz was employed by Zerosoft and Ion he was the only salesman. In spite of the fact that he trained new salesmen and signed some letters as “Sales Manager” he did not consider himself to be such and there was some indication that the firm used job titles rather freely in an attempt to enhance its image in the industry. Kalnitz had some power, subject to Reichstein’s approval, to employ and discharge sales, office and delivery personnel and he would handle emergency situations which arose during Reichstein’s absence. Although Kalnitz held no stock or office in Ion he was authorized to sign checks and, at Reichstein’s death, was to inherit 40 percent of the company’s stock and become its operating head.

On March 24, 1969, pursuant to information obtained from the company bookkeeper, Reichstein questioned Kalnitz concerning his competitive activities. The evidence is conflicting as to what actuaHy was said at the confrontation but as a result thereof Kalnitz was discharged.

On April 1, 1969, Kalnitz leased business premises and shortly thereafter borrowed $15,000 from his brother to enable him to start his own business, Calco, a firm engaged in the supply and assembly of water demineralization equipment. He intended to and did solicit and sell his firm’s services to Ion’s customers with whom he had become acquainted while employed by Ion. Those of Ion’s customers who began receiving their service from Calco and not Ion did so mainly because Calco provided essentially the same service at a lesser price. It should be noted that most of the major firms in this industry provided essentiaUy the same product made up of components readily available on the open market and utilized technology which is of general knowledge in the trade. The factors which would convince a customer to do business with one firm as opposed to another were quality, service and price.

In the year prior to the initiation of this action Ion acquired 20 to 40 of its 150 accounts. Rather detailed confidential customer records were kept in various forms by Ion and used by personnel in aU facets of Ion’s business. These records contained such information as the person to contact at the customer’s place of business, the price charged that customer for the service and the demineralization requirements of that customer. Although some of these records were not found after Kalnitz left Ion’s employ there is no evidence that Kalnitz took them.

The trial judge in refusing to enjoin Kalnitz from soliciting Ion’s customers properly employed existing law to the evidence presented. Opinion

After a consideration of many authorities the court in American Cleaners and Dyers v. Foreman (1929), 252 Ill.App. 122, 134-135 stated that in the absence of an express contract, a taking of a customer list, or fraud, a former employee may not properly be enjoined from soliciting his former employer’s customers whom he served during his employment. The court in Rencor, Inc. v. Fame, Inc (1967), 85 Ill.App.2d 350, gave a full statement of the underlying rationale and the limits of the abovestated principle where at page 357 it stated:

“Our free economy is based upon competition. One who works for another cannot be compelled to erase from his mind aH of the general skiHs, knowledge, acquaintances and the over-aH experience which he acquired during the course of his employment. The success of a person who is engaged in sales depends largely upon his personal friendships and the confidences inherent therein. Absent special circumstances, such person cannot be prevented from seeking out customers of his former employer when he has entered into a competing business or gone to work for a competitor.

If a salesman has agreed to a restrictive covenant in his employment contract, or if he has fraudulently and surreptitiously copied or removed lists of customers from a prior employer, or if the names of actual or potential customers are confidential, not subject to memory, are not publicly listed or otherwise readily obtainable, then, under proper circumstances, such salesman might be enjoined from soliciting business from the customers of his prior employer. Absent such circumstances, however, there can be no such prohibition.

In analyzing the record in this case it is readily apparent that there was no restrictive employment contract which was effective to govern the actions of Kalnitz when he left Ion’s employ in 1969. The agreement of November 3, 1960, may have been effective to control Kalnitz’s activities when he left Ion late that month but it was fuHy performed by Kalnitz when he conformed his activities to the terms of that agreement during the period in which he was not employed by Ion. Thereafter, the contract had no vitality to control Kalnitz’s actions. AdditionaHy, Ion admitted in its brief that the contract is unenforceable to restrict Kalnitz’s activities after he left Ion in 1969.

The record also does not support a theory that Kalnitz took the customer lists. Although there is testimony that he took some of the customer data home he said that Reichstein requested such use of the records evidently for business purposes. Kalnitz flatly denied possessing any of Ions customer data and there is no testimony that he stole or surreptitiously copied Ions customer data. Ion contends that it makes no difference whether the information is physically copied or memorized. In support of this theory he cites Schulenberg v. Signatrol, Inc. (1965), 33 Ill.2d 379 and Boylston Coal Co. v. Rautenbush (1925), 237 Ill. App. 550. In Schulenburg former employees either surreptitiously traced or memorized blueprints. In Boylston a former employee took the names of 214 of his former employer’s agents. In both of those cases there was evidence of a clandestine appropriation, either by copying or by memorization, of confidential business information. The principle of those cases, however, is not effective to make improper Kalnitz’s solicitation of Ion’s customers with whom he had developed a personal rapport. See Revcor, Inc. v. Fame, Inc. (1967), 85 Ill.App.2d 350, 357; Mid-States Vending Service, Inc. v. Rosen (1966), 77 Ill.App.2d 83, 88.

The record also is barren of any evidence establishing the confidentiality of the customer lists. WhUe some of the customer information was kept secret, various office, sales and delivery personnel, some of which are no longer employed by Ion, had access to the customer’s names and addresses. Additionally, there is no evidence that Kalnitz took the confidential customer price information. Ion unsuccessfully attempted to establish that Kalnitz took the customer data by showing that he consistently priced his goods and services lower than Ion’s. This is explained, however, by Kalnitz’s testimony that price information was readily supplied by the customers themselves and that he remembered some of Ion’s prices from his many years of experience seUing for Ion.

Ion contends that Kalnitz’s position with the firm prevents him from soliciting that firm’s customers. Kalnitz’s former position with Ion does not, however, prohibit him from soliciting those customers of his former employer with whom he had a personal relationship. Revcor, Inc. v. Fame, Inc. (1967), 85 Ill.App.2d 350, 357; Mid-States Vending Service, Inc. v. Rosen, 77 Ill.App.2d 83, 88; American Cleaners and Dyers v. Foreman (1929), 252 Ill.App. 122, 134-135.

The trial court applied the proper rule of law to the facts of the instant case.

The judgment is affirmed.

Judgment affirmed.

ENGLISH, P. J., and DRUCKER, J., concur.


author: Mr. JUSTICE DRUCKER.

text:
    Susie Lewis, Plaintiff-Appellee, v. License Appeal Commission of the City of Chicago, et al., Defendants-Appellants.
    (No. 55021;
    First District
    — October 22, 1971.
    Richard L. Curry, Corporation Counsel of the City of Chicago (Marvin E. Aspen and Gayle F. Haglund, Assistant Corporation Counsel, of counsel,) for appellants.
    Gerald B. Mullin, of Chicago, for appellee.
   Opinion by

Mr. JUSTICE DRUCKER.


text:
    Christine E. Hartman, Plaintiff-Appellee, v. Arlie A. Hartman, et al., Defendants,—(Gerald Rolaff, Defendant-Appellant.)
    (No. 54046;
    First District
    — October 22, 1971.

      J. Edward Jones, of Blue Island, for appellants.
    Korean Movsisian, of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

This is a suit for partition and for specific performance of a real estate sale contract. Judgment was for the plaintiff. This appeal is brought by Gerald Rolaff, “defendant” herein.

Plaintiff filed her original complaint on April 23, 1968. That complaint, insofar as pertinent to this appeal, named as defendants her former husband, Arlie A. Hartman, and Gerald Rolaff, vendor of a parcel of real estate under a contract with plaintiff and Arlie A. Hartman as purchasers. The relief demanded was a partition of the subject real estate; an accounting by Arlie A. Hartman of all receipts and rents pertaining to the property; the appointment of a receiver for the property during the pendency of the suit; and any other equitable relief the court might find appropriate.

Attached to the complaint was a copy of the decree of divorce terminating the marriage of plaintiff and defendant Arlie Hartman which declared, inter alia, that plaintiff and Arlie Hartman contracted for the purchase of the subject property as joint tenants. On May 6, 1968, the court appointed William L. Randall as receiver of the property. On July 9, 1968, Rolaffs attorney made written demands upon plaintiff and Arlie A. Hartman for payments past due upon the contract. On July 19 Rolaff filed a motion to dismiss the complaint on the ground that plaintiff was without such an interest in the land as would entitle her to partition. On August 14 the court entered an order allowing defendant to amend his motion to dismiss and allowing plaintiff to file her second amended complaint. In her amendment which consisted of an additional count, plaintiff alleged a conspiracy between defendants Hartman and Rolaff to deprive plaintiff of her interest in the subject property. The substance of that conspiracy was alleged to be as follows: Rolaff advised Arlie Hartman diming the divorce proceedings that no land payments need be made “until the entire matter and the property was disposed of.” Arlie Hartman had then closed his bakery business which had been operated on the subject property. He further refused to pay alimony and child support as ordered in the divorce decree with the knowledge that plaintiff would, as a consequence, be unable to make the payments required by the contract. Rolaff on July 9, 1968, then demanded prompt payment and on August 12, 1968, served plaintiff with a notice of forfeiture. Plaintiff further alleged that the value of the property was in excess of $21,000, that approximately $4,000 remained owing on the contract and that defendant Rolaff was well seemed. The relief requested was that defendant Rolaff be enjoined from forfeiting the contract; that defendant Hartman be required to account for all receipts and disbursements and to make rental payments for the period 1958 to 1968; and, that the property be sold, defendant Rolaff be given the sum due him and the balance divided betwen plaintiff and Arlie Hartman.

On August 20, 1968, Rolaff filed his answer to plaintiffs’ second amended complaint denying any conspiracy and denying that the value of the property was in excess of $21,000, and re-asserting his motion to dismiss. On August 21 plaintiff tendered in open court $4,368.86 and demanded delivery of a deed. Rolaff refused to accept the tender and deliver the deed.

On September 17, 1968, the comt began to hear evidence. On September 30, plaintiff amended the second count of her complaint by adding the following allegations: that Rolaff and defendant Hartman are related by marriage; that Rolaff was employed by defendant Hartman in the bakery operated on the subject property; that defendant Hartman and Rolaff were and remained on friendly terms and in constant communication; that though Rolaff knew that plaintiff no longer lived with defendant Hartman he did not advise her that payments were not being made; that the notice of intent to forfeit was a result of collusion of the parties; and that plaintiff had tendered the amount due and continued the offer of tender. Finally, plaintiff asked for specific performance of the contract. On December 2, 1968, Rolaff filed his answer to plaintiff's amended complaint denying the allegations of collusion.

After hearing the evidence the court on January 21, 1969, entered a decree directing defendant to deliver a warranty deed to the receiver for redelivery to plaintiff upon payment of the amount due under the contract. On February 18, 1969, Rolaff filed his notice of appeal. Subsequently, on May 28, 1969, plaintiff filed a petition alleging, inter alia, that Rolaff had on November 9, 1961, conveyed the subject property in trust to the Pullman Trust and Savings Bank and that his representations in pleadings and testimony through the course of this suit to the effect that he was the sole owner of the subject property were false and fraudulent. Plaintiff alleged that she was obligated for additional legal and attorney’s fees. She therefore demanded that Rolaff be ordered to instruct Pullman Trust and Savings to convey title to her and that Rolaff be required under Section 41 of the Civil Practice Act (111. Rev. Stat. 1967, ch. 110, par. 41) to pay the costs and fees she incurred as a result of Rolaff’s false pleadings. On the motion of Rolaff the court decided that it no longer had jurisdiction and ordered plaintiff to withdraw her motion for Section 41 relief and to file it with this court.

Opinion

On appeal defendant contends that the trial court erred in: (1) denying his motion to dismiss the complaint; (2) appointing a receiver for the subject property; (3) requiring an appeal bond in the amount of $25,000; and (4) granting plaintiff specific performance of the contract. Additionally, plaintiff on appeal requests this court to grant her relief under Section 41 of the Civil Practice Act.

(1) Defendant’s motion to dismiss the complaint under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 48) asserted that plaintiff lacked such an interest in the subject property as would permit her to maintain a suit for partition. Defendant’s supporting affidavit indicated that plaintiff was without legal title and that her only interest in the property was through the contract to purchase. However, when the cause came to trial after amendments of pleadings by all parties and the filing of an answer by defendant, plaintiff again amended her complaint to include a prayer for specific performance. That amendment permissibly combined actions for specific performanee and partition (See Kirk v. Kirk (1927), 325 Ill. 296.) It is not argued by defendant that the amended complaint seeking specific performance was subject to attack under section 48. We therefore conclude that the court properly denied defendant’s motion to dismiss.

(2) Defendant’s second contention on appeal is that the imposition of a receivership deprived defendant of property in violation of sections 2 and 19 of Article II of the Illinois constitution and the Fourteenth Amendment to the constitution of the United States. We do not find merit in defendant’s argument. The receiver was appointed in response to plaintiff’s former husband, co-purchaser with plaintiff of the subject real estate. The property was at that time in the possession of Arlie Hartman, who, according to the allegations of plaintiff’s complaint, occupied a portion of the premises and collected rent from another portion but refused to account therefor to plaintiff. Since possession of the property was not in defendant the record does not suggest nor does defendant indicate in his argument the property right in which he was injured by the imposition of the receivership. We find no error in the appointment of the receiver.

(3) Defendant next contends that the court erred in ordering supersedeas bond in the amount of $25,000. Defendant argues that this amount was excessive for the reason that it exceeded the value of $21,-784 at which plaintiff’s expert appraised the property. We do not find that the amount of the bond as fixed by the court was excessive. See Ellison v. Thomason (1929), 243 Ill.App. 358.

(4) Defendant’s final contention is that the court erred in granting the plaintiff specific performance. Defendant argues that the interests of plaintiff under the articles of agreement were forfeited by defendant when on August 12, 1968, he served her with notice of his intent to forfeit for a 23-month failure to make payments.

Paragraphs 9 and 10 of the Articles of Agreement state as follows:

“9. And in case of the failure of the Purchaser to make any of the payments, or any part thereof, or perform any of the covenants hereof on Purchaser’s part hereby made and entered into, this contract shall, at the option of the seller, be forfeited and determined, and the purchaser shall forfeit all payments made on this contract, and such payments shall be retained by the said seller in full satisfaction and as liquidated damages by seller sustained, and in such event the seller shall have the right to re-enter and take possession of the premises aforesaid.

“10. In the event this contract or agreement shall be declared null and void by the seller on account of any default, breach or violation by the purchaser in any of the provisions hereof, the same shall become and be null and void and be so conclusively determined by the filing by the seller of a written declaration of forfeiture hereof, in the Recorder’s Office of said County.”

The record indicates that defendant did not file a declaration of forfeiture with the Recorder’s office as provided in paragraph 10, but instead only served upon plaintiff notice of his intent to forfeit. Defendant contends that that notice was proper and sufficient regardless of the procedure specified in the agreement. This issue was before the court in Forest Preserve Real Estate Improvement Corporation v. Miller (1942), 379 Ill. 375, in which the court stated at 386:

“It will be noted that this paragraph provides that the contract, in event it shall be declared void, shall become null and void and be so conclusively determined’ by filing a written declaration of forfeiture thereof in the recorder’s office. Appellee did not comply with this provision of the contract. Forfeitures are not favored in courts of equity and to be effective must be made in strict conformity with the contract. To hold that the declaration of forfeiture served on appellant was, of itself, sufficient to determine the contract, would be to approve a mode of forfeiture not agreed to by the parties to that contract."

We think that the steps taken by defendant to enforce a forfeiture were insufficient because they were not in compliance with procedure required by the contract.

Finally, we turn to plaintiff’s petition for relief under Section 41 of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 41). Plaintiff alleges that false representations of defendant indicating his continued ownership of the subject property have resulted in additional substantial attorney’s and legal fees. We find that, under the circumstances of this appeal, the filing of this petition was timely, and the cause is therefore remanded to the circuit court for hearing and a determination of appropriate disposition. See Brooks v. Goins, 81 Ill.App.2d 12, 20-22.

Judgment affirmed and cause remanded with directions.

ENGLISH, P. J., and DRUCKER, J., concur.