text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Earl H. Reeves, Defendant-Appellant.
    (No. 59608;
    First District (4th Division)
    January 22, 1975,

      Paul Bradley and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

The defendant-appellant was indicted for murder and on January 23, 1973, he withdrew his previously entered plea of not guilty and pled guilty to the offense charged. Defendant was sentenced to a term of not less than 15 nor more than 20 years and now appeals. Defendant maintains that his guilty plea was accepted without adherence to Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 38, par. 402) in that he was not properly admonished as to the nature of the charge and that he could persist in his plea of not guilty. We find no merit in this contention.

The record establishes that the defendant’s plea of guilty was the result of plea negotiations between the trial court, assistant State’s attorneys and defense counsel. At the conclusion of the conference held on January 23, 1973, the following colloquy occurred between the trial court and defendant.

“THE COURT: Earl Reeves, you understand you are charged with a two-count indictment for murder, do you understand that?
THE DEFENDANT: Yes.
THE COURT: Your counsel advises me that you wish to change your plea of not guilty to a plea of guilty, is that correct?
THE DEFENDANT: Yes.
THE COURT: When you plead guilty, you automatically waive your right to a jury trial, bench trial and the right to be confronted by the witnesses, do you understand that?
THE DEFENDANT: Yes.
THE COURT: You waive those rights. Before accepting your plea of guilty, it is my duty to advise you that on your plea of guilty to this indictment which charges you with murder, you may be sentenced to the penitentiary, the maximum term for which is any term in excess of 14 years, do you understand that?
THE DEFENDANT: Yes.”

The court also advised the defendant that as a result of the conferences that were held it had determined that there was a factual basis to sustain a plea of guilty and that on a plea of guilty it would impose a sentence of not less than 15 nor more than 20 years. Defendant informed the court that this was acceptable to him.

A stipulation was entered which revealed that on June 24, 1972, defendant entered an apartment and began a verbal altercation with the victim, Rosetta Bracey. During the quarrel the defendant came into possession of an ice pick and stabbed the victim in excess of 100 times, causing her death. It was also stipulated that certain technical evidence connecting the defendant with the crime would be offered into evidence as well as an oral and written confession.

Supreme Court Rule 402 directs that there be substantial compliance with the requirement that the trial court inform the defendant of and determine that he understands the nature of the charge against him. Defendant maintains that he was not properly admonished as to the nature of the charge in that the trial court’s only admonition in this regard was: “Earl Reeves, you understand you are charged with a two-count indictment for murder, you understand that?” This very court, Mr. Justice Dieringer speaking, has held that reference by name to the crime charged is sufficient to comply with the requirement of Supreme Court Rule 402. (People v. Wintersmith, 9 Ill.App.3d 327, 292 N.E.2d 220 (1972); People v. Tennyson, 9 Ill.App.3d 329, 292 N.E.2d 223 (1972).) In Wintersmith, at page 328, we stated: “The rule that a defendant must be informed of the nature of the charge does not require the court to recite all the facts therein. The admonishment of the crime by name has been held sufficient to apprise the defendant of the nature of the crime charged. (People v. Wright, 2 Ill.App.3d 304, 275 N.E.2d 735; People v. Carter, 107 Ill.App.2d 474, 246 N.E.2d 320.)” Similarly, in the case at bar, we find the trial court’s reference to the crime of murder by name was sufficient to apprise the defendant of the nature of the crime charged.

This court is aware of the contrary position other districts of the Illinois Appellate Court have taken as to the sufficiency of referring by name to the crime charged. (See People v. Ingeneri, 7 Ill.App.3d 809, 288 N.E.2d 550 ( 5th Dist. 1972); People v. Krantz, 12 Ill.App.3d 38, 297 N.E.2d 386 (4th Dist. 1973), Reversed, 58 Ill.2d 187 (1974); People v. Triplett, 18 Ill.App.3d 619, 310 N.E.2d 428 ( 5th Dist. 1974).) However, our supreme court has held that a literal compliance with Supreme Court Rule 402 is not necessary, but what is required is that the mandates of the rule be substantially followed. (People v. Mendoza, 48 Ill.2d 371, 270 N.E.2d 30 (1971).) We, therefore, adhere to our previous holdings that referring by name to the crime charged is sufficient to advise a defendant of the nature of the charge against him. When we read the record in the case at bar in a practical and realistic manner, we are of the opinion that there was substantial compliance with Supreme Court Rule 402 and that the defendant was adequately admonished as to the nature of the charge against him.

Defendant also maintains that the trial court’s failure to admonish him as to his right to persist in his plea of not guilty voids his guilty plea. However, as our supreme court stated in Mendoza, supra, at page 374:

“The fact that defendant was not specifically admonished by the court, on the record, as to each and every consequence of his plea does not sufficiently demonstrate that he was, in fact, unaware of these consequences.” (48 Ill.2d 371, 374.)

The circumstances of each case must be examined in order to determine whether there has been substantial compliance with Supreme Court Rule 402 and whether the defendant understood the consequences of his guilty plea. People v. Charleston, 14 Ill.App.3d 452, 302 N.E.2d 687 (1973).

In the case at bar, defendant had originally pleaded not guilty but, pursuant to plea negotiations, decided to plead guilty. He was advised as to the results of the conferences that were held and indicated his acceptance of them. Defendant also indicated that no force, threats or promises other than the plea agreement were utilized to obtain his change of plea. The trial court advised defendant of his right to a jury trial, his right to confront the witnesses against him, and the minimum and maximum sentence that could be imposed for murder. Under the circumstances of this case we find there was substantial compliance with Supreme Court Rule 402.

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

Judgment affirmed.

DIERINGER, P. J., and BURMAN, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE BURMAN

license: Public Domain

text:
    Gertrude Tatelman, Plaintiff-Appellant, v. Brenda Tatelman, Defendant-Appellee.—(Insurance Company of North America et al., Defendants.)
    (No. 60087;
    First District (4th Division)
    January 22, 1975.

      Rehearing denied February 13, 1975.

      Frankenstein, Lewis & Feierberg, of Chicago (A. S. Frankenstein, of counsel), for appellant.
    Sheldon A. Harris and Adolph L. Haas, both of Chicago (Adolph L. Haas and Gary E. Dienstag, of counsel,) for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

This appeal evolves from an action brought by the plaintiff, Gertrude Tatelman, mother of Irwin Tatelman, deceased, to enjoin payment of the proceeds of certain life insurance policies issued on Irwin Tatelman’s life to the defendant, Brenda Tatelman, the designated beneficiary. The plaintiff alleged that she was entitled to the proceeds rather than the defendant, Brenda Tatelman, the deceased’s wife. The latter filed a verified motion for summary judgment alleging that there existed no genuine issue as to any material fact and that the plaintiff’s amended complaint failed to state a cause of action. The Chancery Division of the Circuit Court, which had before it all of the pleadings and a discovery deposition of the plaintiff taken by the defendant, granted the motion of defendant, Brenda Tatelman, and ordered the insurance companies to pay the proceeds of the policies to her.

The record reveals that the defendant insurance companies deposited all monies due under the respective policies with the clerk of the court, and they are not parties to this appeal.

The record further reveals the following facts: The deceased, Irwin Tatelman, and the defendant, Brenda Tatelman, were married on March 31, 1968. They were living separate and apart since September 17, 1972. On March 23, 1973, they entered into a written property settlement agreement in contemplation of a divorce, a copy of which was attached to the amended complaint. The defendant, Brenda Tatelman, had previously been named by her husband, Irwin, as the sole beneficiary of the insurance policies in question. No mention of the policies was made in the property settlement agreement.

The plaintiff’s complaint alleged that Irwin and Brenda were hopeIessly estranged. Brenda was insistent upon obtaining a divorce. Irwin on many occasions attempted to obtain a reconciliation, but was spurned by her. Brenda no longer “had a place in his affections and because of the intense hatred and lack of love and affection Brenda had for Irwin, it was no longer Irwin’s intention * * * to continue to name Brenda as his beneficiary under the said policies of insurance,” and Irwin’s true intent was to change the name of the beneficiary to his mother, the plaintiff, Gertrude Tatelman. On or about April 1, 1973, Irwin went to Centraba, Illinois, to assist his father in the operation of a country club and while there was killed in an automobile accident on April 6, 1973.

In a discovery deposition, the plaintiff testified that on about March 28, 1973, her son was at her home for dinner. He told her “that he was going to transfer his insurance making me beneficiary when he came back from Centraba,” and that “he was going to transfer his insurance as soon as he came back.” The plaintiff’s sister, Mildred Goodman, was present during this conversation. When the plaintiff was asked what else Irwin said with reference to the insurance, she replied, “Nothing else.” She said he talked about his coming divorce and said he was going to take care of everything when he got back. She did not remember discussing his insurance with him at any other time. He had discussed the matter of a divorce a number of times with her. He had told her that he was angry with his wife because she was having an affair with another man and she told him about it. He told her “he hated [his wife’s] guts.”

The plaintiff strenuously argues, based on the above facts, that it was the intention of Irwin Tatelman to change the beneficiary of his insurance from his wife to her, but that he was prevented from complying with the terms of the policies by his untimely death. It is her position that in order to do justice and to respect the wishes of a deceased person, a court of equity will intervene to carry out the clear and evident intention of a person under such circumstances.

The law is clear, however, that some positive action must be taken by the insured to comply with the terms of the policy in regard to changing beneficiaries to warrant the intervention of a court of equity. Substantial compliance with the terms of the policy has been deemed essential. (See Freund v. Freund, 218 Ill. 189, 75 N.E. 925; Begley v. Miller, 137 Ill.App. 278.) An oral declaration that a beneficiary has been changed or will be changed is not sufficient to effect the change. Williams v. Teachers Insurance & Annuity Association, 15 Ill.App.3d 542, 304 N.E.2d 656.

These principles are recognized by various other authorities. In 2 Appleman, Insurance Law and Practice §963, at 591-93 (1966), it is stated:

“Where the insured takes a positive action which evidences his obvious desire for a change of beneficiary, the courts will take such a construction as will assist in carrying out such intention. * * * It is ordinarily necessary, however, that affirmative action be taken by the policyholder to effectuate his intention — the intention alone, however definite, being insufficient. Oral statements of the insured’s intention are insufficient to accomplish this result ° (Emphasis added.)

And in § 985, at 620, it is stated:

“Where the insured has made no effort to comply with the policy terms ° # and has merely expressed an intention or desire as to who shall receive the fund, equity will not intervene. This may arise where the insured waits until shortly before his death before attempting to comply with the policy requirements, and then fails to do substantial acts in accordance therewith.” (Emphasis added.)

In 5 Couch on Insurance 2d § 28:75, at 179-81 (1960), it is also stated:

“The mere fact that the insured takes preliminary steps with the intent of ultimately effecting a change of beneficiary does not in itself constitute substantial compliance and a change of beneficiary does not result therefrom.
On the other hand there is of course no basis for the application of the substantial compliance doctrine where the circumstances are such that there is no clear expression by the insured of an intent to change the beneficiary and name a third person as the substituted beneficiary. Where all the insured does toward effecting a change of beneficiary consists in a statement or expression of intention to the effect that he desires to change the beneficiary, and he does not take any positive formal steps to accomplish such change, no change of beneficiary takes place, nor is the insured regarded as declaring himself to be a trustee of the insurance policy for the benefit of the intended beneficiary. Mere declarations of the insured member that he was changing the beneficiary to a designated person or had already done so is not sufficient to effect or establish a change of beneficiary where the procedure for changing the beneficiary had not been satisfied.” (Emphasis added.)

In the instant case there is no claim by the plaintiff that the deceased made or attempted to make any effort to comply with the policy requirements or that he contacted the companies for the purpose of changing beneficiaries. In Seipel v. State Employees’ Retirement System, 8 Ill.App. 3d 182, 289 N.E.2d 288, for example, the deceased executed a beneficiary form for death benefits under a retirement plan designating his mother as beneficiary, but his mother signed the form in the wrong place. The deceased was informed of the mistake, and a new form was mailed to him. After his death, the form was found in his desk, again designating his mother as beneficiary. It was signed, but not notarized. Even under these facts, the court upheld the decision of the circuit court, affirming the finding of the retirement system, that deceased did not act sufficiently to effectively designate his mother as beneficiary. The court stated that “[i]n Illinois, in life insurance contract beneficiary cases, the court has held that a substantial compliance with the policy requirements must have been followed” (citing Begley v. Miller, 137 Ill.App. 278, Freund v. Freund, 218 Ill. 189, 75 N.E. 925, and Joyce on Insurance, at 203). (8 Ill.App.3d 182 184-85, 289 N.E.2d 288, 290.) Applying that principle to the facts, the court found the decision of the administrative body not to be against the manifest weight of the evidence. In the case at bar, clearly much less was done by the deceased — in fact, no positive action whatsoever.

The authority cited by the plaintiff itself emphasizes the need for some positive action to effectively accomplish a change of beneficiary. In John Hancock Mutual Life Insurance Co. v. Douglass (7th Cir. 1946), 156 F.2d 367, the insured executed a change of beneficiary form, but it was signed incorrectly, had no witness to the signature, and did not identify the new beneficiary (the insureds new wife) by name. Six days later, before the insured could execute the form properly, he developed pneumonia and died. The court reversed the trial court’s finding that no change in beneficiary had been effected. It was pointed out that the request for change was made by the insured on the blank of the insurer, furnished by one of its agents and tendered, together with the policy, to another of its agents for whatever action was necessary on the part of the insurer; it identified the policy by number, and the proposed new beneficiary at least by class and address; and it revoked all prior designations. Again, this case is not remotely similar to the case at bar, where no positive action was undertaken by die insured.

The plaintiff strongly urges that the separation agreement proves that the deceased did not intend to leave his wife anything and that it buttresses the contention that he intended to give the benefits of the policies to his mother. The record clearly shows that the agreement was made in contemplation of a divorce and that no divorce proceedings had as yet been filed. And, as in Equitable Life Assurance Society v. Stilley, 271 Ill.App. 283, the separation agreement does not mention the policies. There it was held that the wife remained beneficiary under a policy of insurance on her husband’s life where, although she had entered into a separation agreement with her husband relinquishing various property rights, the insurance policy was not referred to expressly or impliedly therein.

Likewise, in O’Toole v. Central Laborers’ Pension & Welfare Funds, 12 Ill.App.3d 995, 299 N.E.2d 392, a property settlement agreement had been entered into by the husband and wife, but there it had been incorporated in the divorce decree. It also contained a general clause stating that “each party is further barred as to any and all claims or interests whatsoever in and to the property of tire other now owned and hereafter acquired.” Subsequent to the divorce no change was made in the designation of the wife as beneficiary of certain insurance policies and death benefits payable on the husbands death. The husband died and left his mother as his only heir at law. The appellate court affirmed the judgment of the circuit court that the wife was entitled to the benefits of the policies. It held that when an insured reserves a right to change a beneficiary, the beneficiary has a mere expectancy during the insured’s lifetime, and this expectancy would not be considered property and would not be included in a property settlement agreement unless specifically included or so intended by the language of the agreement. There also the property agreement was general and there was no specific provision regarding insurance. The court stated that Illinois follows the majority rule that a decree of divorce in no way affects the rights of the divorced wife as a beneficiary in a husband’s life insurance policy. “Only if a property settlement agreement should specifically include a termination of the beneficiary’s interest, will the right to the proceeds of a policy on the life of the husband be affected, unless the policy itself or a statute provides otherwise.” (12 Ill.App.3d 995, 997, 299 N.E.2d 392, 394.) The court further noted that “[sjurely, if the insured had wished to substitute another person or his estate as beneficiary following the divorce, he would have at least attempted to effect a change with the insurer or included a provision in the property settlement agreement indicating such intention.” 12 Ill.App.3d 995, 998, 299 N.E.2d 392, 394.

Again, the authority cited by the plaintiff in no way supports her position. In Thomas v. Johnson, 12 Ill.App.3d 302, 297 N.E.2d 712, the sole issue was whether the severance of a joint tenancy was effected by the provisions of a divorce decree. There the divorce decree incorporated a property settlement agreement which specifically provided “ * * that all real estate * * * shall be sold and the net proceeds thereof, divided, equally, between the parties hereto.’ ” (12 Ill.App.3d 302, 304.) The court concluded from that language and the relevant circumstances disclosed in the transcript of the divorce hearing that the parties intended a division of the property and that the agreement contemplated a sale as soon as feasible. The decree unconditionally ordered the sale to take place and the proceeds to be divided equally. The performance of the agreement to sever the joint tenancy prior to the husband’s death was held to be unnecessary to effect the severance, and the husband’s devisee was entitled to his interest in the property rather than his former wife as surviving joint tenant.

Under the heading of “Summary judgments and decrees,” section 57 of the Civil Practice Act provides, in subsection (3) (Ill. Rev. Stat. 1971, ch. 110, par. 57(3)):

“Procedure. * * * The judgment or decree sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that tire moving party is entitled to a judgment or decree as a matter of law. * * *”

The use of summary judgment is to be encouraged in a proper case (Allen v. Meyer, 14 Ill.2d 284, 152 N.E.2d 576), and this is clearly such a case. Based on the record before us, it is evident that there exists no genuine issue as to any material fact, and based on the above discussion, it is emphatically clear that the defendant, Brenda Tatelman, was entitled to judgment as a matter of law. We therefore affirm the judgment of the circuit court.

Affirmed.

ADESKO and JOHNSON, JJ., concur.


author: Mr. JUSTICE MEJDA

text:
    Martin Bickel, Plaintiff-Appellee, v. The City of Chicago, Defendant-Appellant.
    (No. 58220;
    First District (3rd Division)
    January 23, 1975.

      Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Richard F. Friedman, Assistant Corporation Counsel, of counsel), for appellant.
    Arnold Grubman, of Chicago (James G. O’Donohue and Philip J. Rock, of counsel), for appellee.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff, Martin Bickel, brought action against the defendant City of Chicago for personal injuries sustained in a fall on a City sidewalk. Following a trial without a jury, judgment was entered in favor of plaintiff in the amount of $110,000. Defendant appeals, contending that the trial court erred in failing to dismiss the action because of a fatal defect in the written statutory notice of injury served on defendant, that plaintiff failed to prove that he was free from contributory negligence, and that the judgment is excessive.

Plaintiff’s injuries were sustained in a fall at the curb of the southeast corner of Franldin and Washington Streets in the City of Chicago, on November 28, 1969, at which time sections 8 — 102 and 8 — 103 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1969, ch. 85, pars. 8 — 102 and 8 — 103) provided in pertinent part:

“§ 8 — 102. Within 6 months from the date that the injury or cause of action, referred to in Sections 8 — 102 and 8 — 103, was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, * * * must personally serve in the Office of the Secretary or Clerk, * * * a written statement, ® * * giving the name of the person to whom the cause of action has accrued, * * * and the name and address of the treating hospital or hospitals, if any. § 8 — 103. If the notice under Section 8 — 102 is not served as provided therein, any such civil action commenced against a local public entity, * * * shall be dismissed and the person to whom such cause of injury accrued shall be forever barred from further suing.”

The requirement of section 8 — 102 that the notice include the name and address of the treating hospital or hospitals, if any, was added by a 1969 amendment which first became effective on October 10, 1969.

On December 22, 1969, plaintiff’s attorney served defendant with a written notice of claim for personal injuries which included “Hospital: Chicago Wesley Memorial, 250 E. Superior St., Chicago, Illinois.” Plaintiff had in fact received emergency care at Chicago Wesley Memorial Hospital on the date of the accident. Subsequently, but prior to the service of the statutory notice, plaintiff had received certain medical services for his injuries at Lutheran General Hospital on seven separate occasions. At the opening of trial, defendant moved that the suit be dismissed under section 8 — 103 because the plaintiff’s notice did not list all of the treating hospitals. The trial court denied the motion upon the basis that a “treating hospital” is one which provides hospitalization rather than merely extending out-patient care. The cause then proceeded to trial without a jury.

Plaintiff testified that on the date of the accident he was taken to Wesley Memorial Hospital where his left leg was X-rayed in the emergency room and an intern advised him to keep his leg elevated and to apply ice packs. That evening plaintiff called his personal physician, Dr. Rasmus Harr, who advised him to go to Lutheran General Hospital on the following day. There the plaintiffs leg was again X-rayed; an elastic bandage was applied, he was advised to keep the leg elevated, and Dr. Harr gave him a prescription. He returned to Lutheran General Hospital 2 or 3 days later and was again told to keep his leg elevated. Plaintiff further testified that he began receiving therapy at Lutheran General Hospital in December of 1969, which at first consisted of whirlpool treatments about every other day.

Dr. Rasmus Harr testified that he was associated with Lutheran General Hospital and was plaintiff’s family physician. Although he did not recall receiving a telephone call from plaintiff on November 28, 1969, he did receive a call from the emergency room of Lutheran General Hospital on November 29, 1969, advising him that plaintiff was there. He directed that plaintiffs leg be X-rayed, an elastic bandage applied, and that plaintiff be told to elevate his leg and apply ice packs. He saw plaintiff at Lutheran General Hospital on the following day and again at his private office on December 2, 1969. Dr. Harr stated that he prescribed physiotherapy for which he directed plaintiff to the physiotherapy department of Lutheran General Hospital, where he often saw him when he came in for treatment. He further testified that the hospital’s records indicate that plaintiff began receiving physiotherapy and massage on December 8, 1969, for which he was charged directly by the hospital. A paid bill from the hospital was received in evidence reflecting that plaintiff had physiotherapy on the 9fh, 11th, 12th, 15th, 17th and 19th of December, 1969.

The written notice served on defendant was received in evidence over the renewed objection of defendant that the notice was defective.

I.

Initially, defendant contends that the written notice served upon it was fatally defective in failing to list all of the treating hospitals. The trial court accepted plaintiff s argument that the treating hospital or hospitals, as required by the statute, must be equated with hospitalization, and concluded that out-patient care was not within the scope of those terms. Treatment is defined in Webster’s 1966 Third New International Dictionary as “the action or manner of treating a patient medically or surgically.” Treatment has been defined as a broad term covering all the steps taken to effect a cure of injury or disease, including examination and diagnosis, as well as the application of remedies. (Pfahler v. Eclipse Pioneer Division of Bendix Aviation Corp. (1956), 21 N.J. 486, 122 A.2d 644; Hester v. Ford (1930), 221 Ala. 592, 130 So. 203.) In the instant case, between the date of the accident and the service of the statutory notice upon defendant, plaintiff received diagnostic service by way of X-ray, as well as remedial care, at the emergency room and Physiotherapy Department of Lutheran General Hospital, albeit at the direction of his personal physician.

The trial court erred in concluding that in this instance Lutheran General Hospital was not a treating hospital within the provisions of section 8 — 102. However, under the principle that it is the correctness of the ruling which is reviewed and not the reasons expressed by the trial court, the question still arises whether the failure to include said hospital in the statutory notice is fatal to the maintenance of the present action. (Cady v. Hartford Fire Insurance Co. (1965), 56 Ill.App.2d 429, 206 N.E.2d 535.) Defendant maintains that strict compliance is required Under the above statute and cites in support of this argument Rapacz v. Township High School Dist. No. 207 (1971), 2 Ill.App.3d 1095, 278 N.E.2d 540; Hoffman v. Evans (1970), 129 Ill.App.2d 439, 263 N.E.2d 140; and Williams v. City of Gibson (1970), 129 Ill.App.2d 431, 263 N.E.2d 138. It is significant that Rapacz and Williams involved erroneous dates of accident and Hoffman involved a complete failure to give notice. Plaintiff responds that substantial compliance rather than strict compliance is the proper standard for determining the sufficiency of the statutory notice, especially where, as here, the omission was inadvertent, plaintiff has not been shown to have acted in bad faith, and defendant was not misled or prejudiced in any way. Plaintiff relies on McComb v. City of Chicago (1914), 263 Ill. 510, 105 N.E. 294; Klein v. City of Chicago (1973), 10 Ill.App.3d 670, 294 N.E.2d 755; Redmond v. City of Chicago (1973), 10 Ill.App.3d 567, 294 N.E.2d 761; Bryant v. City of Chicago (1943), 319 Ill.App. 524, 49 N.E.2d 654; and Lutsch v. City of Chicago (1943), 318 Ill.App. 156, 47 N.E.2d 545.

In Ouimette v. City of Chicago (1909), 242 Ill. 501, 90 N.E. 300, the supreme court held that statutes requiring the giving of notice before the institution of a civil suit against a public entity are to be strictly construed and the notice must follow the requirements of the statute. There, the notice erroneously stated the date of the accident as November 10, 1905, instead of the occurrence date of October 10, 1905. The strict standard compliance has also been applied in Ramos v. Armstrong (1972), 8 Ill.App.3d 503, 289 N.E.2d 709; Fannon v. City of Aurora (1969), 106 Ill.App.2d 408, 245 N.E.2d 286; Frowner v. Chicago Transit Authority (1960), 25 Ill.App.2d 312, 167 N.E.2d 26; and Cipich v. City of Chicago (1946), 328 Ill.App. 580, 66 N.E.2d 527.

However, since 1914 a more liberal approach has been adopted for the testing of the sufficiency of statutory notices. In McComb v. City of Chicago (1914), 263 Ill. 510, 105 N.E. 294, plaintiff's notice named a particular intersection but failed to specify which comer was involved where an alleged fall occurred on a defective sidewalk. The Illinois Supreme Court held that the notice sufficiently described the place or location and that it provided enough information to enable defendant to find the exact place of the accident by the exercise of reasonable diligence. Subsequently, in Minnis v. Friend (1935), 360 Ill. 328, 196 N.E. 191, the court, in considering the sufficiency of an unsigned notice, inferentially approved the more liberal approach taken in McComb by distinguishing that case which had been cited by plaintiff, on tire basis that it would have been applicable if plaintiff had made “some attempt” to comply with the requirement that the notice must be signed. Such attempt to comply occurred in Musser v. City of Chicago (1938), 293 Ill.App. 625, 12 N.E.2d 336 (abstract opinion). There the notice did not contain the name and address of the physician who attended the plaintiff's injuries during the 24 days immediately following the accident, but only contained the name and address of the physician who took up treatment where the. first attending physician left off. On the morning following the injury, the first physician set plaintifFs fractured wrist in a plaster cast; later, the first physician found the fracture had not been properly reduced, and it was necessary to break and reset the injured wrist. This court there held that the notice which “named the physician who commenced to treat her just a month after the accident and who was her physician at the time notice was given” was a compliance with the statute.

Numerous cases followed which applied the less stringent standard. The notice was held sufficient if it directed the attention of the city officials with reasonable certainty to the place of accident. (Klein v. City of Chicago; Bryant v. City of Chicago.) Notice was held adequate even though the plaintiffs listed street address placed his residence outside the boundaries of the listed city. (Fromme v. City of Girard (1938), 295 Ill.App. 144, 14 N.E.2d 690.) A notice was held adequate although the incorrect address of plaintiffs physician was given. (Schmidt v. City of Chicago (1936), 284 Ill.App. 570, 1 N.E.2d 234.) The service of a notice was held sufficient where an unsigned copy of the original signed notice was left with the defendant. (Klapkowski v. City of Chicago (1959), 23 Ill.App.2d 222, 161 N.E.2d 865; and Lutsch v. City of Chicago.

Added impetus was given to the liberal approach in Reynolds v. City of Tuscola (1971), 48 Ill.2d 339, 270 N.E.2d 415, where the court held sufficient plaintiff's notice which had been served by registered mail rather than personally. The court there stated that the notice statute was in derogation of the common law and must therefore be strictly construed against the public entity which in fact had notice of the injury and other particulars and that such statute should be liberally construed and should not be used as a stumbling block or pitfall to prevent recoveiy by meritorious claimants.

This liberalized rationale was later applied to the requirement that the notice state the place or location of the injury in Meisenheimer v. City of Chester (1973), 15 Ill.App.3d 1088, 305 N.E.2d 322. There the court held sufficient plaintiff’s notice which merely listed a street which ran the entire length of defendant city as the place where she had tripped over a hole in the pavement. The defendant city had actual knowledge of the location of the hole. The court stated at page 1091:

“By grounding the decision in part on the fact that the Tort Immunity Act is in derogation of the common-law action against local public entities and must be strictly construed against the local public entity, the Reynolds decision outmodes cases decided before the 1965 enactment of the Tort Immunity Act. In our opinion, the language of Reynolds is plain and unambiguous in requiring a liberal interpretation of the notice statute, as evidenced by such recent decision [sic] as Helle v. Brush (1973), 53 Ill.2d 405, 292 N.E.2d 372; Eckel v. City of Sullivan (1972), 3 Ill.App.3d 342, 277 N.E.2d 890; and Klein v. City of Chicago (1973), 10 Ill.App.3d 670, 294 N.E.2d 755.”

The court there stated that the rule of strict compliance was recently applied in Rapacz, which involved a notice with an erroneous date of accident, and in Ramos, in which the address of plaintiff was omitted. However, as stated in Ouimette v. City of Chicago, supra, at page 507, “it must be held that the wrong date in the notice is, in effect, the same as if no date at all were given.” Thus, Rapacz, in omitting the date of accident, and Ramos, in failing to state the plaintiff’s address, each in itself constituted a complete omission of an essential element, unlike the facts in the instant case.

In holding insufficient a written notice which nowhere described the general nature of the accident, in Nikolic v. City of Chicago (1973), 18 Ill.App.3d 426, 305 N.E.2d 325 (abstract opinion), again a complete omission of a necessary element of the required notice, we stated: “In so finding, we are not unmindful of tire cases which plaintiff urges in support of his contention that where a substantial attempt to comply with the notice provisions of the statute is made, the notice will be deemed sufficient.”

The sufficiency of a notice as to the treating hospital element, as first required by the 1969 amendment, was considered in Saragusa v. City of Chicago (1974), 18 Ill.App.3d 945, 310 N.E.2d 849. There plaintiff sued defendant city for injuries sustained April 20,1970, and had served a statutory notice which completely omitted naming any treating hospital. Although at least three physicians attended plaintiff, and the notice named only one, the city did not raise this as a defect. The court in a per curiam opinion held that since plaintiff had made no attempt whatsoever to comply with the treating hospital requirement of the statute, the notice therefore lacked a necessary element and was fatally defective. However, the court added, at page 950, “Since plaintiff has not shown that she made some attempt’ to comply with this provision, we can make no appraisal of whether the attempt was substantial.’ ” The court added at pages 951-52:

"The 1969 amendment has for the first time required that the written statement give the name and address of the treating hospital or hospitals, if any. This requirement was an essential element of the notice. The plaintiff omitted this element altogether from her notice and she has not shown that she made any attempt and certainly no substantial attempt to comply with this provision, as she was required to do by the language of Minnis v. Friend, 360 Ill. 328, 196 N.E. 191.”

It is to be noted that the specific holding that there was a total omission of a necessary element is not any attempt at compliance. The further statement that Minnis required a “substantial attempt to comply” was not essential to the determination. In fact, Minnis does not so require a substantial attempt, but instead, states at page 333:

“There [in McComb] had been an attempt to comply with the statute, and our holding was that location had been given which was sufficiently definite to comply with the statute. The McComb case would be applicable if there had been some attempt to comply with the requirement of the statute that the notice be signed and if the question were as to the sufficiency of the signature.” (360 Ill. 328, 333.)

Accordingly, here the test to be applied is whether there is some attempt to designate the treating hospital or hospitals, and if so, the sufficiency of the designation set forth in the notice.

In the instant case we unquestionably have “some attempt to comply” with the treating hospital requirement of the statute and the sufficiency of that compliance is directly in issue. Clearly, the allegation of actual notice does not satisfy the statutory requirement of written notice. (Housewright v. City of LaHarpe (1972), 51 Ill.2d 357, 282 N.E.2d 437; Ouimette v. City of Chicago.) The applicable rules may be summarized. The statute is strictly construed to require that the written notice must contain each of the essential elements therein set forth. A notice which completely omits one or more of the essential elements is insufficient. On the other hand, the statute is to be liberally construed with respect to the sufficiency of the elements as set forth in the written notice. Where the particular element as set forth is reasonably sufficient to fulfill the requirements of the statute and where the public entity has not been misled or prejudiced thereby, the notice itself is sufficient. Here, the written notice was promptly served on defendant well within a month of the occurrence; the suit was filed on February 17, 1970, which was less than 3 months from the occurrence date: There is no evidence or claim by defendant that the City was misled or prejudiced by the notice. In accord with Minnis v. Friend, plaintiff has made “some attempt to comply” with the treating hospital element and has fully complied as to safety. At trial plaintiff testified that for 20 years he was employed on the 4:30 P.M. to 12:30 A.M. shift at the Illinois Bell Telephone Company located east of Franklin Street, on the north' side of Washington Street in downtown Chicago. His normal routine was to park his car at a lot on the northwest comer of Franklin and Madison Streets, then walk north on the west side of Franklin to a coffee shop on the northwest comer of Franklin and Washington Streets. After having coffee he would proceed east on the north side of Washington Street to his place of employment. He testified that on November 28, 1969, at about 4:15 P.M., he followed his usual routine and approached Washington Street, walking north on the west side of Franklin. Due to the heavy post-Thanksgiving pedestrian traffic on Washington Street, he decided to cross Franklin Street to the southeast comer of the intersection, intending to cross Washington along the east side of Franklin Street, then

the other elements required by the statute. The notice contained the name and address of the first hospital at which plaintiff had been treated, and only omitted the one other hospital where further treatment was received. The information was sufficiently complete to constitute substantial compliance with the treating hospital requirement of the statute. (See Musser v. City of Chicago.) Therefore, the trial court did not err in holding the notice sufficient. The refusal to dismiss the present action pursuant to section 8 — 103 and the admission of the notice into evidence were proper.

II.

Defendant next contends that plaintiff failed to prove that he was free from contributory negligence but in fact that the evidence of plaintiff and his witnesses was that he was not exercising due care for his own to proceed east to the telephone company. He walked east along the south side of the intersection across Franklin Street, then turned north to cross Washington Street. He was walking about 1 foot behind a man. Plaintiff stepped off the sidewalk with his left foot and realized there was no curb at that point; he lost his balance and fell forward onto his left side, injuring his lower left leg. He got up and “hobbled” over to a mailbox and supported himself for “a while.” He then went directly to his place of employment and a coworker took him to Wesley Memorial Hospital. On cross-examination plaintiff further testified that prior to Ms fall he had looked at part of the curbing at the southeast comer of the intersection but did not see, nor did he know of at that time or earlier, the condition of the curb at the point where he had fallen. He testified that he was not late for work at the time of the accident, and he was not carrying anytMng. He stated that as he stepped off the walk at the comer where he fell he was looking straight ahead at the back of the man in front of him and not at the curbing.

Richard Greiss, plaintiff’s supervisor, testified that plaintiff reported late for work and was then taken to the hospital by another employee. He stated that the curb in question had been damaged in late 1939 or early 1940 in a street-car accident which he had witnessed. Many years later he had told at least one telephone company employee how the curbing had been damaged. He also testified that plaintiff occasionally drove him to the train station and that plaintiff “mostly” parked Ms car at a garage on the northeast comer of Franklin and Madison Streets.

Defendant argues that the testimony of the witnesses indicates, first, that plaintiff observed the broken curbing prior to his fall and either failed to take cognizance of it or failed to avoid it; second, that plaintiff must have had prior knowledge of the defect, either from hearing Greiss talk about the street-car accident or from having walked past that particular comer some time in the past; third, that plaintiff most likely fell from his own carelessness as a result of Ms haste because he was late for work.

What constitutes contributory negligence is a question wliich must be determined from the facts and circumstances of each case. (Winston v. Chicago Transit Authority (1971), 2 Ill.App.3d 151, 276 N.E.2d 65.) In adopting a standard for reviewing such determination this court in Klein v. City of Chicago (1973), 10 Ill.App.3d 670, 675, 294 N.E.2d 755, quoted Upton v. Parkway Motors, Inc., 90 Ill.App.2d 426, 429-30, 232 N.E.2d 513:

“Our courts have held repeatedly that, in tihe face of contradictory testimony, the findings of fact of the trial court will not be disturbed unless clearly contrary to the manifest weight of the evidence. [Citations.] In the proceedings below, the court had the opportunity to watch and listen to the witnesses, to observe their demeanor and to reflect upon their responses. That court is therefore in a far better position to determine the relative credibility of the various witnesses than is this court, whose review of the testimony is limited to reading the printed questions and answers.”

In the instant case, the trial court’s determination that plaintiff was in the exercise of due care for his own safety at the time of the accident was made upon the basis of testimony which was not even conflicting. Although defendant argues to the contrary, plaintiff specifically stated that he did not see the curbing at the point where the fall occurred. He further testified that he was not late for work at the time and that the fall happened at approximately 4:15 P.M., some 15 minutes before he was due at his place of employment. Defendant’s assertions as to what Richard Greiss must have told plaintiff as to the origin of the broken curb, or that plaintiff must have walked past that particular comer some time in the past, are purely speculative. A review of the record leads to the conclusion that the trial court’s finding that plaintiff was free from contributory negligence was not contrary to the manifest weight of the evidence.

IH.

Defendant’s final contention is that the amount of the judgment awarded to plaintiff was grossly excessive, arguing that plaintiff failed to prove either the need for future medical care or the necessity for compensation for lost future earnings. Plaintiff, who was 50 years of age at the time of the accident, was a high-school graduate and had been employed for 20 years as a telephone-equipment-maintenance man. His only other training was a brief period many years prior in motel management. Following his injury, plaintiff was temporarily assigned to a desk job at the telephone company until he aggravated his condition while attempting to change a fuse. He was later placed on a disability pension. On the advice of Dr. Harr, plaintiff moved to Arizona where he was unsuccessful in obtaining employment due to the unwillingness of prospective employers to hire a person on disability pension.

Plaintiff testified that the injury to his left leg continues to result in periodic pain. His fall produced a rupture of the gastrocnemius muscle, the principal muscle of the lower leg. The four physicians who testified in behalf of plaintiff and defendant agreed that the injury was of a permanent nature and would prevent plaintiff from continuing as an equipment maintenance man. Dr. Harr, plaintiffs personal physician, testified that plaintiff’s injury was not operable and that future physiotherapy treatments and medication might prove beneficial on occasion. Dr. Allen Hirschtick, an orthopedic surgeon, testified for plaintiff that although plaintiff could physically sit at a desk, such activity would produce pain if continued for long periods, if more than a few steps of walking were required and during weather changes. Dr. Hirschtick stated that in his opinion plaintiff could not do substantial gainful work, considering his status in life, his education, and his previous type of employment. Dr. Ellsworth Tannehill, an orthopedic surgeon, testified for defendant that in his opinion plaintiff could do a limited type of work; he estimated that plaintiffs injury resulted in a 25- to 30-percent loss of use of his left leg.

In closing argument, plaintiff requested an award of $250,000, suggesting that $11,906 be included for past and future medical expenses, $7,700 for future medical costs, and $116,520 for lost future earnings until he was 65 years of age. The trial court awarded plaintiff a judgment of $110,000.

In Lau v. West Towns Bus Co. (1959), 16 Ill.2d 442, 158 N.E.2d 63, the supreme court considered the issue of what should be the standard of review as to whether a juiy verdict is excessive, stating at page 453:

“Each verdict for a personal injury must be examined in the light of the particular injuiy involved, with humble deference to the discretion of the jury in making its determination and to the ruling of the trial judge on the post-trial motions. Johnson v. Eckberg, 94 Ill.App. 635.
We are not unmindful of our obligation to carefully scrutinize the record to determine whether the amount of the verdict is so large as to indicate passion and prejudice. This we have done, and we conclude from the evidence that although the verdict may well be in excess of the amount which the judges of this court would have allowed if they had heard the evidence and made the original determination, yet we do not believe that it is so excessive as to show passion or prejudice.”

This standard is equally applicable where the amount of the judgment has been determined by a trial corn! sitting as the trier of fact. Defendant here challenges the sufficiency of the evidence to establish the need for future medical care for plaintiff and his future employment disability. Upon a review of the testimony presented by plaintiff’s medical witnesses and the testimony of plaintiff, we conclude that the need for compensating plaintiff for future medical expenses and lost future earnings was adequately proved. Given the sufficiency of the evidence to establish those factors, the amount of the award granted by the trial court cannot be said to be so excessive as to indicate passion or prejudice on its part.

For the reasons herein stated, the judgment of the trial court is affirmed.

Affirmed.

McNAMARA and DEMPSEY, JJ-, concur.


author: Mr. PRESIDING JUSTICE McGLOON

text:
    Bulley & Andrews, Inc., Plaintiff-Appellant, Cross-Appellee, v. Symons Corporation, Defendant-Appellee, Cross-Appellant.
    (No. 59523;
    First District (3rd Division)
    January 23, 1975.

      Alvin E. Domash, Charles A. Adamek, and Hugh C. Griffin, all of Lord, Bissell & Brook, of Chicago, for appellant.
    John F. McClure and David M. Meister, both of Arnstein, Gluck, Weitzenfeld & Minow, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff, Bulley & Andrews, Inc., a general contractor, brought this action against defendant, Symons Corporation, to recover damages for contract extras, enforcement of its mechanic’s lien, and damages for defendant’s fraudulent misrepresentation. The circuit court of Cook County declared a mechanic’s lien and entered judgment in favor of plaintiff for some, but not all, of its claimed extras. Also, plaintiff’s fraudulent misrepresentation count was dismissed. On appeal, plaintiff alleges that the trial court erred by entering judgment in favor of defendant on plaintiff’s claim for extras resulting from owner ordered work, and on plaintiff’s fraudulent misrepresentation count. Defendant cross-appeals, alleging error in the judgment and mechanic’s lien entered against it.

We affirm.

The record reveals that the defendant, Symons Corporation, was in the business of designing and manufacturing concrete forming equipment. On August 8,1968, Symons contracted with Bulley & Andrews, Inc., a general contractor, for Bulley & Andrews to build an office and factory addition which provided for vast amounts of architectural concrete work to be done. The specifications incorporated into the contract stated that all forming equipment “will be furnished by Symons Manufacturing Company to the contractor from his standard catalog items, a copy of which is attached to this specification.” By way of explanation, forming equipment consists of those items which may be assembled together to form or create a mold into which wet concrete may be poured. This case is concerned with two particular types of forming equipment, form tie rods and rustication strips. The form rod is a metal rod inserted through holes in both forms and secured on the outside of each form so as to hold the forms together and give the resulting concrete a uniform thickness. The concrete is poured over the ties, allowed to set, and when the forms are removed the protruding ends of the ties are snapped off. The rustication strip is a piece of metal attached to the inside of the form to create a design on the' completed concrete wall.

Bulley & Andrews began work, and when it was ready to begin putting together the forms, its field superintendent, Richard Braun, asked Symons’ supervisor for the forming equipment to be used. Symons provided the forming equipment, and therein began the basis for this litigation. Bulley & Andrews’ position was that it thought the contract called for the use of the standard looped tie rods, a type of tie rod with loops at each end so the tie may be inserted through the forms and locked in place by simply slipping a wedge bolt into each loop. Accordingly, Bulley & Andrews’ personnel testified at trial that they prepared the contractor’s bid based upon the use of the easy-to-use looped ties Bulley & Andrews had been purchasing from Symons for the past 20 years. The tie rods supplied, however, were not the standard looped tie rods; Symons supplied threaded tie rods. Threaded tie rods serve the same function as the looped tie rods, but instead of having loops on both ends, one end of the rod is threaded to accept a securing nut. The threaded tie rod is pictured in Symons’ catalog as being appropriate for special uses, and the Symons’ supervisor explained to Braun that tihe threaded tie was to be used to enhance the final appearance of the concrete walls by reducing grout leakage. Also, Symons furnished a slightly different type of rustication strip than was pictured in its catalog.

Braun accepted the tendered threaded ties and the different rustication strips, and Bulley & Andrews began the forming. Braun neglected, however, to inform his office what type of forming equipment was received. The work took considerably longer to complete than was originally expected. Representatives from both Bulley & Andrews and Symons were at the site regularly to observe the progress, but there is no evidence in the record to indicate that Bulley & Andrews notified Symons either orally or in writing that it was experiencing difficulties and additional costs due to the use of the threaded tie rods and different rustication strips. Nine months after substantially all the forming was completed, Bulley & Andrews figured out that the additional expenses incurred in forming were due to the use of the threaded tie rod and the different rustication strip. Symons was then notified of a claim for extras for this work, but Symons refused to pay because it was not notified of the claim earlier. Also, Bulley & Andrews presented Symons with claims for extra work performed in another part of the job, the yard storage area, and for a delay in the work occasioned by Symons’ architect. Symons refused to recognize these claims, too. Bulley & Andrews filed the instant lawsuit.

The case was heard at a bench trial, and the trial court made an express finding that the plaintiff incurred substantial expenses by the use of the different forming equipment, but that plaintiff could not recover the additional expenses from such work because the claim was not submitted until after the work was completed. Accordingly, judgment was entered for defendant on plaintiff’s claim for extras resulting from the use of the threaded tie rod and different rustication strip. On the fraud count, the court entered judgment for defendant. As to plaintiff’s claims for extras resulting from the work performed in the yard storage area and for the delay occasioned by defendant’s architect, the trial court entered judgment for plaintiff and declared a mechanic’s lien. Plaintiff appeals from the judgments entered in favor of the defendant. Defendant cross appeals from the judgment and mechanic’s lien entered against it.

On appeal, plaintiff contends that the trial court erred by refusing to allow compensation for the extra work necessitated by the defendant’s modification of the forming equipment. Specifically, plaintiff alleges that such compensation was recoverable as extras under the contract, and also as damages for defendant’s fraudulent misrepresentation.

For a contractor to recover additional compensation from an owner for extra work, the contractor must prove the essential elements of his case as set forth in Watson Lumber Co. v. Guennewig (1967), 79 Ill. App.2d 377, 226 N.E.2d 270. The contract must establish that (a) the work was outside the scope of his contract promises, (b) the extra work items were ordered by the owner, (c) the owner agreed to pay extra, either by his words or conduct, (d) the extras were not furnished by the contract as his voluntary act, and (e) the extra items were not rendered necessary by any fault of the contractor.

The parties differ as to whether the work in question was outside the scope of the contract. The contract stated that:

“All * * * form ties, form hardware, steel adjustable shores and metal rustication strips will be furnished by Symons Manufacturing Company to the contractor from his standard catalog items, a copy of which is attached to this specification.”

As for the ties, the catalog pictured both the standard loop tie rod and the threaded tie rod that was actually furnished. Plaintiff alleges that it thought the work was to be performed with the standard loop tie rod, the only type of tie rod it had used for constructing such walls in its many years of using Symons’ forming equipment. Defendant claims that the contract called for the threaded tie rod.

A contract is ambiguous when it is reasonably susceptible to different constructions. (Village of North Riverside v. Brookfield-North Riverside Water Com. (1973), 15 Ill.App.3d 752, 305 N.E.2d 221.) The instant contract is ambiguous inasmuch as it is unclear as to which type of tie rod would be furnished by defendant. An ambiguous contract will be construed according to the intent of the parties, and the parties’ actions under the ambiguous contract are of great aid in determining what was intended. (Svenson v. American National Bank & Trust Co. (1967), 87 Ill.App.2d 181, 186, 231 N.E.2d 103, 106.) Although there may have been an ambiguity in the contract as to the specified type of form tie rods, any doubt as to the type of equipment to be used on the job was dispelled when Symons’ supervisor supplied Bulley & Andrews’ field superintendent with the threaded tie rods to be used. At that time, plaintiff knew what was intended by defendant under the contract, but plaintiff failed to protest, negotiate, comment, or otherwise call to defendant’s attention any doubts it may have had as to whether the contract called for the use of threaded form tie rods. We feel the ambiguity was resolved by plaintiff’s actions, and the work resulting from the use of the threaded tie rods was within the scope of the contract.

As to the rusticatipn strips, the trial court expressly found:

“The rustication strip furnished to the plaintiff by the defendant was not pictured in the defendant’s catalogue, which formed a part of the agreement of the parties, the specific rustication strip pictured therein appearing to have a slot as opposed to a round hole.”

Although the use of the rustication strip as supplied may not have been part of the original contract because the rustication strip was not included in defendant’s standard catalog, we feel the contract was modified to include the use of the different type of rustication strip. The contract provided that the owner shall have the right “to make any alterations, additions, or omissions that he may desire in work or materials herein specified.” By furnishing plaintiff-contractor with the different type of rustication strip, defendant-owner offered to modify the existing contract. To modify a contract under such a clause, as opposed to making a new contract for extras, depends upon how the changes alter the character of the work. For a modification “there can be no material change so as to constitute a radical or substantial departure from the original contract.” (17A C.J.S. Contracts §373, at 423 (1963).) For example, in Kell v. Kosary (1968), 93 Ill.App.2d 400, 236 N.E.2d 349, the “extra work was so different from that called for under the contract that it was the subject of a separate oral agreement rather tiran a mere modification of the written contract.” (93 Ill.App.2d 400, 403.) In the instant case, the change did not substantially alter the character of the work at the time the change was proposed, so the offer to change the type of rustication strip was an effective offer for a modification of the existing contract.

Defendant’s offer to modify the agreement under the modification clause was communicated to plaintiff by the fact that defendant supplied a rustication strip different from that which was depicted in defendant’s standard catalog. Plaintiff accepted the offer by remaining silent and beginning work, there being no reason to believe that the job would be more d'fficult with the use of the different equipment. Any work resulting therefrom was within the scope of the contract. Since the use of the threaded tie rods and the different rustication strips was within the scope of the agreement between the parties, any work resulting therefrom was within the scope of the contract and not the subject of extras. Plaintiff has failed, therefore, to prove that the work was outside the contract, and the trial court properly denied plaintiff’s claim for extras.

Now we turn to plaintiff’s contention that the trial court erred by dismissing Count IV of plaintiff’s complaint, which alleged that defendant knew the use of the threaded tie rod and modified rustication strip would be more expensive for plaintiff than the use of the standard equipment, but concealed that fact from plaintiff, who was induced to enter into the contract to its injury. Without analyzing the merits of plaintiff’s claim, it is clear that plaintiff continued work after it discovered that the forming with the different equipment was much more difficult and expensive than it expected. In Eisenberg v. Goldstein (1963), 29 Ill.2d 617, 622, 195 N.E.2d 184, cert. denied, 377 U.S. 964, the Illinois Supreme Court stated the rule of law to be applied in such cases:

"A person who has been misled by fraud or misrepresentation is required, as soon as he learns the truth, to disaffirm or abandon the transaction with all reasonable diligence, so as to afford both parties an opportunity to be restored to their original position. If, after discovering the untruth of the representations, he conducts himself with reference to the transaction as though it were still subsisting and binding, he thereby waives all benefit of relief from the misrepresentations. Kanter v. Ksander, 344 Ill. 408; Greenwood v. Fenn, 136 Ill. 146.”

Even if plaintiff’s allegation of fraud in the formation of the contract were trae, plaintiff would not be entitled to relief on this ground because it remained silent on the matter until 9 months after the completion of the protracted and difficult forming work, continuing to work under the contract. Plaintiff waived its right to complain of the fraud, and the trial court properly dismissed the fraud count of plaintiff’s complaint.

We feel the crux of the instant litigation was plaintiff’s silence when it discovered that the forming was taking an inordinate amount of time due to the use of the modified forming equipment. Had plaintiff promptly notified defendant, the parties could have resolved the matter at that time, either by settlement or in the courts. Having silently continued work under the contract, however, plaintiff waived its right to any relief to which it may have been entitled. In Stresenreuter Brothers &. Bowes (1924), 233 Ill.App. 143, 162, this court noted under similar circumstances that “acquiescence with knowledge of the facts, may imply assent and give rise to an obligation, or constitute a waiver of right.” We reach the same conclusion and affirm the judgment of the circuit court in favor of defendant and against plaintiff.

Defendant presents two allegations of error in its cross appeal. The first allegation of error is that the trial court erred by entering judgment in plaintiff’s favor for $3,466.10 on plaintiff’s claim for extra work performed in defendant’s yard storage area. The surrounding facts are undisputed. Work on the yard storage area was delayed while defendant revised the plans under a hold order. When plaintiff received the revised drawings, it began work and estimated the additional cost of the work. The estimate was not submitted to defendant until three months after the yard storage area work was completed. Plaintiff’s president testified at trial that he realized extra work was involved, but he did not discuss the matter with defendant or defendant’s architect sooner because he “just wanted to get the work done and get out of there.” The trial court found that “plaintiff, at the request of the defendant, performed work on the yard storage area other than that required under the original agreement; the additional cost of this work on the yard storage area was stipulated to be $3,466.10. Therefore, the plaintiff is entitled to recover the stipulated amount for extra work performed on tire yard storage area.”

On appeal, defendant contends that although it ordered the work to proceed, the contract dictated the procedure to be followed. The contract stated:

“CHANGES:
It is understood that the owner, shall have the right, during the progress of construction, to make any alterations, additions, or omissions that he may desire in work or materials herein specified or shown on the drawings. The same shall be carried into effect by the contractor, without, in any way, violating or vitiating the contract, but if such changes are made, the contractor, architect, and the owner must have the value of same agreed upon in writing.”

Defendant submits that plaintiff was obligated by the contract to obtain a written agreement as to the value of the extra work, and absent the agreement, plaintiff could not recover.

There is no doubt that the revised drawings were substantially different than the original drawings the plaintiff bid upon, and changed the scope of plaintiff’s contractual promises. The additional work necessitated by the revised drawings was therefore an extra to the contract.

In Ed Keim Builders, Inc. v. Hartley (1971), 132 Ill.App.2d 119, 268 N.E.2d 49, the court stated:

“It is incumbent upon the owner to enforce the ‘extras’ provision in his contract, or it is waived by him. By allowing work on extras to proceed before securing a memorandum signed by [contractor], [owner] waived his right to enforce the provision. [Citation.] A contractual provision such as in this case prevents the contractor from proceeding with extra work on his own initiative, while allowing the owner to control his liabilities. Where an owner orders work to proceed, he cannot claim to be taken unaware, nor can he require the contractor to bear the cost of the work he has so ordered * * (132 Ill.App.2d 119, 121.)

In the instant case, defendant owner allowed work in the yard storage area to proceed upon the revised drawings without securing the necessary writing, and therefore waived tire benefits of the contractual provision. The trial court properly entered judgment in favor of plaintiff on its claim for extras in the yard storage area.

Defendant’s second allegation of error is that the trial court erred by awarding judgment to plaintiff upon plaintiff’s claim for damage's occasioned by a 12-day work stoppage. The reason for the delay was that the necessary building permit from the city of Des Plaines had not been issued, and work could not proceed without the permit. Under the contract, plaintiff had the duty to secure the necessary building permits, but a prerequisite for the issuance of the city building permit was the approval o£ the plans by the Metropolitan Sanitary District of Greater Chicago, and such approval was originally denied by the District because the plans prepared by the owner’s architect were incomplete. Work was stopped while the owner’s architect revised the plans and obtained the District’s approval. The city building permit was then obtained by the plaintiff and work resumed. The trial court expressly found that the delay was caused by the architect, not by the plaintiff and wrote:

“For the purposes of securing a permit application number from the Metropolitan Sanitary District of Chicago [sic], as opposed to tire preparation of plans and specifications for the building, the architect is the agent of the owner.”

The trial court entered judgment of $3,505.85 for plaintiff.

On appeal, defendant alleges that the trial court erred by holding the architect to be defendant’s agent, citing Miller v. DeWitt (1965), 59 Ill.App.2d 38, 88, aff’d in part and rev’d in part on other grounds, 37 Ill.2d 273, which quoted 5 Am. Jur. 2d Architects § 6, at 668 (1962):

“As a general rule, an architect, as far as the preparation of plans is concerned, acts as an independent contractor, but so far as regards the performance of his supervisory functions with respect to a building under construction, he ordinarily acts as the agent and representative of the person for whom the work is being done.”

Plaintiff urges that the architect was the defendant-owner’s agent. In support, plaintiff points out that the application for the District permit was addressed to defendant, but completed and submitted by the architect, who was acting as defendant’s president testified, as defendant’s agent.

We perceive the issue to be whether a contractor may recover damages from an- owner for a work stoppage resulting from a delay in securing the necessary building permits which was caused entirely by incomplete or defective plans prepared by the owner’s architect. On this point, Professor Williston wrote:

“If the owner through his architect or engineer can be regarded as having superior expert knowledge, and on the basis of such knowledge to represent to the builder the feasibility of carrying out the plans, the owner must be held responsible for the consequences of any defects in them.” (6 Williston on Contracts § 1966, at 5516-17 (rev. ed. 1938).)

The agreement between the contractor and the owner provided that the contractor was to perform the specified work using the plans prepared by the owner’s architect, and was to secure the necessary building permits. The plans were incomplete and therefore defective. The delay in the issuance of the necessary permits was the direct consequences of the defective plans, so it necessarily follows that the owner is liable to the contractor for the delay. (See Mason Tire & Rubber Co. v. Cummins Blair Co. (1927), 116 Ohio St. 554, 157 N.E. 367.) We find no error in the trial court’s ruling on this count of plaintiffs complaint.

We -briefly note defendant’s allegation that the court’s ruling on the delay question has no support in the pleadings, and conclude that this allegation is without merit. Accordingly, we affirm the judgment of the circuit court in favor of plaintiff and against defendant, from which defendant appealed.

Tire judgments of the circuit court of Cook County are affirmed.

Judgments affirmed.

McNAMARA and MEJDA, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Chatman, Defendant-Appellant.
    (No. 59567;
    First District (3rd Division)
    January 23, 1975.

      Paul Bradley and James R. Streicker, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Thomas D. Rafter, and Richard H. Robinson, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    Mary M. Mrzlak, Plaintiff-Appellee, v. Robert E. Ettinger et al., d/b/a Dearborn Club Residence for Girls, Defendants-Appellants.
    (No. 58909;
    First District (3rd Division)
    January 23, 1975.

      Jerome H. Torshen and Robert A. Skirnick, both of Torshen, Fortes & Eiger, Ltd., and Garretson & Santora, both of Chicago, for appellants.
    George Groble, of Groble & Groble, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE McGLOON

delivered the opinion of the court:

On August 8, 1967, plaintiff, Mary Mrzlak, while asleep in her room at the Dearborn Club Residence for Girls (hereafter referred to as Club), was assaulted and robbed by an unknown male assailant who allegedly obtained entry through the bathroom window of plaintiff’s second-story room. Plaintiff brought this action against defendants Robert Ettinger and Harold Zimmerman, the owners and operators of the Club, and alleged that defendants were negligent in failing to exercise a high degree of care to maintain the premises in a safe condition so as to prevent an assault against the plaintiff, a paying guest.

The jury entered a verdict of $22,500 in favor of the plaintiff and defendants now appeal.

We affirm.

Defendants make the following contentions on review: (1) that defendants are not liable to plaintiff as a matter of law because there is no duty to protect against unforeseeable, independent criminal acts of third persons; (2) even if the defendants owed a duty to protect plaintiff against unforeseeable, independent criminal acts, and that duty was breached, such breach was not the proximate cause of plaintiffs injury; (3) that plaintiff was contributorily negligent as a matter of law; (4) that it was error for the court to instruct the jury that die defendants owed plaintiff a high degree of care; (5) that the closing argument of plaintiff’s counsel exceeded the bounds of proper debate and prevented defendants from receiving a fair trial; and (6) that the verdict of $22,500 is unreasonable and excessive and the result of the jury’s passion or prejudice.

Defendants’ first contention is that they are not liable to plaintiff as a matter of law because there is no duty to protect against unforeseeable, independent criminal acts of third persons. Whether or not defendants have a duty to protect plaintiff from independent, intervening criminal acts of third persons depends upon whether such acts are foreseeable. Even cases cited by defendants acknowledge this basic rule. (See Mancha v. Field Museum of Natural History (1972), 5 Ill.App.3d 699, 283 N.E.2d 899; Moore v. Yearwood (1960), 24 Ill.App.2d 248, 164 N.E.2d 215.) Defendants argue that the evidence shows that the criminal act was unforeseeable, that the Club had no knowledge of previous incidents and that, indeed, there were no previous incidents. We believe these contentions to be without merit. In the case at bar the evidence presented showed that there were taverns in the vicinity of the Club and that immediately next door to the Club there was a rooming house. Joel Carothers, called as a witness by the plaintiff, testified that there were three attempted break-ins at the Club and further stated that she informed Mr. Zimmerman, co-owner of the Club, of each of these attempts. Another witness, Sharon Matts Hancon, testified that she thought there were two attempted break-ins at the Club in the spring of 1967. Yet another witness, Millie Conlon, testified that someone tried to get in the hotel by throwing a rock through the powder room in the main lounge. Furthermore, Robert Ettinger, the other co-owner of the building, testified that the manager of the building might have told him about attempts to break into the building. In light of such evidence we believe the question of foreseeability was properly a question for the jury and will not overturn the jury’s decision on appeal.

Defendants next contend that even if the Club did owe and breach a duty to the plaintiff to guard against intervening criminal acts, the breach of that duty was not the proximate cause of plaintiff’s injury. This specific issue was discussed at length by the Illinois Supreme Court in Ney v. Yellow Cab Co. (1954), 2 Ill.2d 74, 117 N.E.2d 74. In Ney, the defendant cab company’s employee left his cab unattended with the engine running, in violation of the Uniform Traffic Act. A thief stole the cab and while in flight collided with the plaintiff’s vehicle causing property damage. In discussing the intervening criminal acts the court stated as follows:

“* * * Wrongful acts of independent third persons, not actually intended by the defendant, are not regarded by the law as natural consequences of his wrong, and he is not bound to anticipate the general probability of such acts, anymore than a particular act by this or that individual. The rule applies a fortiori to criminal acts. The intervention of a criminal act, however, does not necessarily interrupt the relation of cause and effect between negligence and an injury. If at the time of the negligence, the criminal act might reasonably have been foreseen, the causal chain is not broken by the intervention of such act. 38 Am. Jur. 728-9.” 2 Ill.2d 74, 79, 80, 117 N.E.2d 74, 78.

In Green v. Welts (1970), 130 Ill.App.2d 600, 605, 265 N.E.2d 188, 191, the same issue was considered as follows:

“* * * in cases such as this, the intervening act is always wrongful and is not normal or reasonable conduct under the circumstances. That is the reason the question arises as to whether there is a break in the causal chain. The question of whether or not this intervening conduct was within the range of reasonable anticipation and probability is the type of factual question for the jury to determine. Questions which are composed of qualities sufficient to cause reasonable men to arrive at different results, inferences and conclusions, should not be determined as matters of law. Ney v. Yellow Cab Co., supra 83, 84; Kinsch v. Di Vito Const. Co., Inc. (1964), 54 Ill.App.2d 149, 154, 155; Marquardt v. Cernocky (1958), 18 Ill.App.2d 135, 145, 146.”

We believe that the evidence presented at trial concerning previous attempts to break into the Club, defendants’ knowledge of such attempts, and the general character of the neighborhood in which the Club was located, properly made the issue of proximate cause one for the jury. As stated in Ney, supra:

“Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. The right of trial by jury is recognized in the Magna Charta, our Declaration of Independence and both our State and Federal constitutions. It is a fundamental right in our democratic judicial system. Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues such as negligence and proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body. The juiy is the tribunal under our legal system to decide that type of issue. To withdraw such questions from the jury is to usurp its function. Bailey v. Central Vermont Railway Co., 319 U.S. 350.” (2 Ill.2d 74, 84, 117 N.E.2d 74, 80.)

Defendants’ next contention is that plaintiff’s failure to lock her window constitutes contributory negligence as a matter of law. The evidence presented at trial concerning whether or not there are locks on the bathroom window is conflicting. Mr. Ettinger testified that at the time of the incident the bathroom had two locks, that he tested both locks on the morning after the incident, and that both were functional. Defendants’ exhibit no. 3, a photograph of the bathroom window taken shortly after the assault, shows what appears to be two locks on the window. Plaintiff testified that she did not see any locks on tire window, and Officer Hayslip, who arrived shortly after the incident, testified that he saw no security devices on the window.

Furthermore, plaintiff was told by the Club manager, Miss Sills, that the Club was a safe place to stay. There is nothing in the record to indicate that the plaintiff received any instructions concerning locking the windows. As stated in Breslin v. Bates (1973), 14 Ill.App.3d 941, 945, 303 N.E.2d 807, 811, “What evidence constitutes contributory negligence is ordinarily a question of fact, and each case must be determined according to its own facts and circumstances.” In the case at.bar, the jury in answer to a special interrogatory on plaintiff’s contributory negligence stated that the plaintiff was not contributorily negligent. In light of the conflicting evidence concerning the existence of locks on the window, the fact that the manager of the Club told plaintiff that the Club was a safe place to stay, and the fact that plaintiff received no specific instructions concerning locking her windows, we cannot say as a matter of law that the plaintiff was contributorily negligent.

Defendants next contend that it was reversible error for the court to instruct the jury that the Club owed a high duty of care to the plaintiff. Defendants argue first, that a hotel owes its guest a duty of reasonable or ordinary care and, second, that there was no innkeeper-guest relationship established between defendants and plaintiff.

Defendants cite numerous cases in support of the proposition that a hotel owes its guests a duty of ordinary care. However, only one of these cases, Walden v. Chelsea Hotel Co. (1949), 337 Ill.App. 292, 85 N.E.2d 861, involved a situation where a guest at a hotel was assaulted by a third party. We believe the better result of law is that where an assault upon a guest by a third party is involved, the hotel is held to a high degree of care. This particular rule was enunciated as follows in Danile v. Oak Park Arms Hotel, Inc. (1964), 55 Ill.App.2d 2, 8-9, 203 N.E.2d 706, 709:

“The appellant next claims that the Court below was in error in instructing the jury that the Hotel owed the appellee a high degree of care to protect her from harm. The instruction is supported by Fortney v. Hotel Rancroft, Inc., 5 Ill.App.2d 327, 125 N.E.2d 544 (1955). There the court distinguished cases where injuries resulted from defective or dangerous conditions existing in the premises of the innkeeper and cases where the injury arose from the positive action of one person against another. Thus, if a guest of a hotel slips on a defective staircase, the hotel is subject to ordinary care, but if the guest is assaulted by an employee of the hotel or by a third person, the hotel may be held to a high degree of care. We take note that some cases in this jurisdiction have held a hotel to reasonable and ordinary care, but with the exception of Walden v. Chelsea Hotel Co., 337 Ill.App. 292, 85 N.E.2d 861 (1949), none of these dealt with a situation where a guest was assaulted. We hold that in these circumstances, a reasonable degree of care is a high degree of care. We find no reversible error in this instruction.”

As stated in Fortney v. Hotel Rancroft, Inc. (1955), 5 Ill.App.2d 327, 335, 125 N.E.2d 544, 548:

“A guest, who is either asleep in his room or about to enter his room, should not be subjected to the risk of an assault by a stranger. A guest has a right to rely upon the innkeeper doing all within his power to avoid or prevent such an assault, and to that end should be required to exercise a high degree of care.”

In the instant case, plaintiff was assaulted by a third party. Therefore, we believe that the court was not in error in instructing the jury that defendants owed the plaintiff a high degree of care.

We also believe that defendants’ contention that there was no innkeeper-guest relationship established between defendants and plaintiff to be without merit. Defendants contend in their brief that although the Club was admittedly a hotel, plaintiff s status was that of a boarder and not a guest. It is our belief that this specific point was not raised in the trial court and was therefore waived. It is true that defendants denied each and every allegation of Count V of plaintiffs complaint which alleged that defendants had a high duty of care to plaintiff while she was a paying guest in the hotel. However, nowhere in the record of the proceedings at trial or in defendants’ post-trial motion does the issue of whether the plaintiff was a guest as opposed to a boarder appear. Essential to our decision on this particular point is the discussion in the chambers of the trial court judge concerning the jury instruction as to the duty of care the hotel owed. At this discussion counsel for both plaintiff and defendants and the trial court judge discussed only the issue of whether or not tire Club was a hotel. It was evident from the discussion that the theory adopted by all parties was that, on the basis of the facts in this particular case, if the Club was a hotel, then the plaintiff was a guest. At this discussion, defendants argued only that the Club was not a hotel. To consider defendants’ argument on appeal that although the Club was admittedly a hotel, but that the plaintiff was a boarder and not a guest would be unfair to the plaintiff and to the trial court. It is a well-established rule that an appellate court does not have authority to consider a matter not passed upon by the trial court. (Trisko v. Vignola Furniture Co. (1973), 12 Ill.App.3d 1030, 1034, 299 N.E.2d 421, 424; Ray v. City of Chicago (1960), 19 Ill.2d 593, 602, 169 N.E.2d 73, 78; Consoer, Townsend & Associates v. Addis (1962), 37 Ill.App.2d 105, 109-10, 185 N.E.2d 97, 99.) Furthermore, “‘[A]n appellate court should not, and wiU not, consider different theories or new questions, if proof might have been offered to refute * * * them had they been presented at the trial.’” (Hux v. Raben (1967), 38 Ill.2d 223, 225, 230 N.E.2d 831, 832.) It is a basic rule of law that a party is not permitted to change his theory of a case on appeal. Woman’s Athletic Club v. Hul man (1964), 31 Ill.2d 449, 202 N.E.2d 528; Bourdage v. Rifco Auto Leasing Co. (1965), 66 Ill.App.2d 116, 213 N.E.2d 77.

Defendants next contend that certain comments in plaintiff’s closing argument appealed to the passion of the jury, had no relation to the case and therefore deprived defendants of a fair trial. Defendants first argue that early in his argument, plaintiff’s counsel set the tone for what was to be an excursion into sex, rape and murder which was nowhere supported in the record.

The relevant facts as testified to by the plaintiff indicate that when the assailant entered plaintiff’s room he put a gun to her head and said, “Be quiet, or else I will shoot.” The plaintiff then started to scream and her assailant began to hit her on the head with a gun. Plaintiff continued to scream, started to kick her feet and tried to get up off the bed. The assailant then pulled her down and began to strangle her. Plaintiff then lost consciousness. Upon regaining consciousness, the plaintiff found that her pajama bottoms and sanitary pad were off. Plaintiff told the investigating officer, Officer Deady, that she had been raped and a police report was made out to that effect. Later, after a sperm test proved negative, the police report was reclassified from rape. During cross-examination plaintiff stated that she was making no allegation that she was raped.

Defendants cite in support of their argument counsel’s characterization of the sign on the awning in front of the Club which read “Dearborn Club Residence for Girls” as an invitation “to anybody * * *, any maniac, any thief, any burglar * * * that in this building are women, in fact, girls.” Defendants further refer to counsel’s statement fhat the assailant told plaintiff “Don’t scream, I will kill you.” In actuality, the assailant said, “Be quiet, or else I will shoot.” Defendants also cite counsel’s remark, “She was probably raped. Her pants were torn off. Her sanitary napkin was torn off,” and counsel’s statement at the close of his closing argument when he stated, “Let’s stop these girls and women being killed in hotels and motels.” Plaintiff’s counsel also referred to the outside area of the Club as “vulnerable by the use of a prowler, burglar or rapist * * and stated that the girls in the Club had “no family probably.”

We believe the references to rape were fair comments based on the evidence. The plaintiff testified that she was found with her pajama bottoms and sanitary pad off. This is physical evidence of rape, even though the sperm test was negative. “Attorneys have broad latitude during closing argument to draw reasonable inferences and conclusions from the evidence.” (Johnson v. Chicago Transit Authority (1973), 11 Ill.App.3d 16, 20, 295 N.E.2d 573, 576; see Goldstein v. Hertz Corp. (1973), 16 Ill.App.3d 89, 305 N.E.2d 617.) Consistent with this wide latitude and in light of the fact that plaintiffs pajama bottoms and sanitary pad were off, we find the references to rape to be fair comments.

Counsel’s statement that tire assailant told plaintiff “Don’t scream, I will kill you” was essentially what the assailant told plaintiff and constitutes no error. The other statements that defendants complain of we find to be incorrect, but not so prejudicial as to have deprived defendants of a fair trial.

Defendants argue further that counsel’s statements in closing argument concerning plaintiff’s medical condition also went beyond the bounds of proper argument. The following statements made by plaintiffs counsel concerning plaintiff’s medical condition are cited by defendants as unsupported by the record: “she was in a state of shock in the hospital”; “her jaw doesn’t work right anymore, it clicks all the time and it is out of line”; that plaintiff “would say she had psychological help”; that “Mary Mrzlak * * * was going to be injured mentally and physically the rest of her life”; and finally that plaintiff “suffered more than a minor scalp wound.”

It is true that some of these statements are not exact statements of plaintiffs injuries. However, plaintiff did spend 4 days in the hospital and 1 month in bed at home immediately following the incident. Plaintiff testified that after the incident her jaw was at an angle and bruised, that she could not chew her food very well because her jaw would start cracking, and that she was weak and dizzy and was afraid of everything. It required seven stitches to close the wound in her scalp, and plaintiff testified that after the incident she had nightmares and could not sleep. Plaintiff also stated that she could not look up or move her head to the left. In August of 1969, 2 years after the incident, plaintiff testified that she was still suffering from the same symptoms. We do not feel that counsel’s comments on plaintiffs injuries are so far removed from the injuries actually sustained to constitute reversible error. Furthermore, the trial court, in his instructions to the jury, properly instructed the jury to disregard statements which had no proper basis in the evidence. As a result we do not feel that counsel’s comments on plaintiffs injuries were so prejudicial as to require a new trial.

Defendants also urge that certain comments made by plaintiff’s counsel in his closing argument invited the jury to speculate about matters which were not in evidence and which had no bearing on the facts in the instant case. While not listing these final comments complained of by defendants specifically in this opinion, we have carefully considered them and do not feel that they are cause for reversible error.

Plaintiffs counsel’s comments in closing argument and especially defendants’ contention that the cumulative effect of these comments was to prejudice the jury, have given us cause for reflection. However, while we do not recommend this type of argument, we see nothing in tire argument which is cause for a new trial. As stated in Johnson v. Cunningham (1969), 104 Ill.App.2d 406, 412, 244 N.E.2d 205, 208:

“It is necessary to consider the trial as a whole to determine if a party has been denied his constitutional right to a fair trial by the misconduct of the other litigant or his counsel. The trial court is, of course, in a unique position to make this determination since it has heard all the testimony, all of the argument, observed the parties and their counsel and their effect on the jury. For this reason the sound rule exists that the question rests within the sound discretion of the trial court and will not be disturbed unless it is clear that the court has abused that discretion. West Chicago St. R. Co. v. Annis, 165 Ill. 475, 46 N.E. 264; Owen v. Willett Truck Leasing Corp., 61 Ill.App.2d 395, 402, 209 N.E.2d 868; Eizerman v. Behn, supra.”

Moreover, “* * s ‘[t]he character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial court has performed his duty and properly exercised the discretion vested in him’ * s A” Galluccio v. Hertz Corp. (1971), 1 Ill.App.3d 272, 280, 274 N.E.2d 178, 184.

• 11 In the present case, counsel for defendants in his closing argument had an opportunity to rebut most of the comments which he cites as prejudicial. Furthermore, the trial court in its instructions to the jury specifically instructed the jury to disregard comments of counsel not based upon the evidence. Moreover, the trial court was in a better position to evaluate the cumulative effect of these comments on the jury. The trial court did not see fit to grant a new trial, and we cannot say that in so doing the trial court abused its discretion.

As stated in Bruske v. Arnold (1969), 44 Ill.2d 132, 139, 254 N.E.2d 453, 457:

“ ‘[T]he ultimate question on review is not whether a trial was scrupulously free from error, but whether there was error which operated to the prejudice of the appealing party or unduly affected the outcome below. (Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 118.)’”'

We have carefully examined the record in the present case and find nothing winch prejudiced the defendants or unduly affected the outcome in the trial court.

Defendants’ final contention is that the $22,500 verdict is the result of plaintiff’s counsel’s improper argument to the jury and that based on the evidence a remittitur is required. We see nothing which constitutes reversible error in counsel’s closing argument and believe that in light of plaintiffs injuries previously mentioned in this opinion the verdict of $22,500 is not excessive. Thus, no remittitur is required.

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

Judgment affirmed.

DEMPSEY and MEJDA, JJ., concur.