text:
    Joan Walsh, Plaintiff-Appellee, v. Pheasant Run, Inc., Defendant-Appellant.
    (No. 59787;
    First District (5th Division)
    January 24, 1975.

      Gates W. Clancy, of Geneva (James S. Mills, of counsel), for appellant.
    Philip Howard and Philip Doran, both of Chicago (William J. Harte, of counsel), for appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff, injured in a horseback-riding accident, was awarded damages by the court in the amount of $18,600. Defendant appeals from this judgment contending that (1) plaintiff could not amend her complaint after the close of evidence to allege that defendant was estopped from denying ownership of the stables at which the accident occurred, and (2) even if the amendment was proper, the evidence did not support the necessary elements of estoppel. No contention has been raised concerning the findings as to the cause of plaintiff's injuries or the amount of damages awarded to her.

On June 14, 1969, plaintiff, a guest at the lodge owned and operated by defendant, was injured when she fell from a horse at a nearby riding stable. She filed a complaint alleging that both defendant and Homestretch, Inc., owned and maintained the stable, and that their negligence in maintaining their equipment and training their employees was the proximate cause of her injuries. In her first amended complaint one Jerry Farmer was added as a defendant. Subsequently, following the entry of a permanent restraining order in bankruptcy, Farmer was dismissed from the suit. In its answer Homestretch admitted ownership and control of the stable but denied plaintiff's other allegations. Defendant denied ownership and control of the stables. The case proceeded to trial.

We need summarize only that evidence which is relevant to the issues raised on appeal.

Pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 60) Edward McCardle, president of defendant, was called by plaintiff. He testified that in June 1969 defendant owned a resort complex known as Pheasant Run Lodge consisting of 10 or 11 buildings and approximately 170 acres of land. Defendant’s employees ran various facilities for the benefit of guests at the lodge. Prior to June 1, 1969, these included the bars, swimming pool, restaurant, tennis courts and equestrian stable. After June 1, 1969, the stable was rented to Jerry Farmer under an oral lease. McCardle personally owned the land on which the stable and riding ring were located but some years earlier had leased the land to defendant. For 5 or 6 months prior to June 1, 1969, Farmer had been an employee of defendant. Following the rental of the stable to Farmer, a sign saying "Homestretch” was erected in front of those facilities. After June 1, 1969, defendant had nothing to do with the day-to-day operation of the stable. Its employees diere were placed on Farmer’s payroll. The public was not specifically alerted that defendant no longer ran the stable. After June 1, 1969, defendant referred all inquiries made by lodge guests concerning the stables to that facility. The lodge had a telephone extension to the stable for the convenience of guests who wished to make riding reservations.

Defendant employed a public-relations manager. Advertisements were placed in Chicago newspapers and radio ads may have been used as well. Defendant distributed printed material to lodge guests explaining the various services which were available to them. These brochures were placed at the front desk and possibly in the rooms. An informational or “locater” sheet (plaintiffs Exhibit 1) was admitted into evidence. It consisted of a map of the resort complex and depicted the availability of the stables directly across North Avenue from the lobby and offices. A brochure (plaintiff’s Exhibit 2) was admitted into evidence which portrayed the activities available to lodge guests. Prominently pictured were two people riding horses. The brochure included the following copy:

“Of course, these are also, all of the usual activities found at a fine resort * * * shufileboard, horseback riding, tennis, billiards, pingpong, skeet shooting, water skiing and fishing.”

A receipt (plaintiff’s Exhibit 3) bearing the letterhead:

"PHEASANT RUN FARMS
P.O. Box 64
St. Charles, Illinois, 60174
RACE HORSES-HUNTERS-JUMPERS”

was admitted into evidence. The post office box and telephone number listed on the receipt were defendant’s. The receipt was dated June 14, 1969.

James Walsh, husband of plaintiff, testified on her behalf that she was injured in an accident at the stable’s riding ring on the afternoon of June 14, 1969. He knew that riding was available from previous visits to the resort. He had probably seen the “locater” sheet and brochure (plaintiff’s Exhibits 1 and 2) on the night he and his wife checked into the lodge. He identified plaintiff’s Exhibit 3 as the receipt he had received at the stable on the afternoon of his wife’s accident.

Plaintiff testified on her own behalf that at the time of her accident she was 32 years old. She was an experienced horsewoman who had received extensive equestrian training. She identified plaintiff’s Exhibits 1 and 2 as being on the desk of her room when she arrived at the lodge on the evening of June 13, 1969. On June 14 when she inquired about riding facilities, lodge employees directed her to the stables. She identified plaintiff’s Exhibit 3 as the receipt which her husband received at the stables.

Plaintiff’s counsel read into the record McCardle’s answers to interrogatories wherein he acknowledged defendant’s ownership of the tacking equipment and riding stock used at the stable on June 14, 1969.

Suzanne McCutcheon testified for defendant that she had been employed by defendant in May 1969. On June 14, 1969, she worked for Homestretch, Inc. Many townspeople as well as guests of the lodge used the stables. On June 14, 1969, there was a large sign in front of the stables that said “Homestretch.” Although she did not know for sure, there may have been a procedure for charging use of the stables to a lodge guest’s bill.

Jerry Farmer testified for defendant that beginning in May 1969 and culminating on June 1, 1969, the stable and restaurant operations were gradually transferred from defendant to Homestretch, Inc. By June 14, 1969, a large “Homestretch” sign had been painted and erected in front of the stable. He decided to operate the stable after a discussion with McCardle. He had a month-to-month lease which included rental of tack equipment, horses and use of the facilities. A written agreement was executed, but it was “unavailable at the time of trial; it was stored in a basement that was flooded.” A dual billing system was employed so that lodge guests’ bills were collected by defendant and repaid to Homestretch. People off the street were not similarly afforded the opportunity of charging their bills. He continued to use defendant’s printed receipts after taking over operation of the stables. Farmer’s “Statement of Affairs” filed in support of his bankruptcy petition was admitted into evidence without objection. In it he averred that he was “engaged in the horse business at Pheasant Run Farms, St. Charles, Illinois, from September 1, 1968, to September 1, 1969.”

At the close of evidence plaintiff was permitted to file a second amended complaint inserting the following paragraphs:

“5. That at the time and place aforesaid the plaintiff relied on the reputation of the defendant insofar as providing safe and proper supervision over those recreational activities which were represented as being conducted by defendant; Pheasant Run, Inc.
6. That relying upon these representations the Plaintiff became a patron of the Pheasant Run riding stables which stable operation was being conducted on the premises of Pheasant Run.”

Defendant raised no objection to this portion of the proposed amendment.

Opinion

Defendant contends that plaintiff should not have been allowed, after the close of evidence, to file a second amended complaint. Specifically, it is argued that paragraphs 5 and 6 alleging that defendant was estopped to deny ownership of the stables set forth a claim that could only “appear on the face of the initial pleading.” However, as we have noted above, defendant failed to raise any objection to the filing of the equitable estoppel allegations below, and consequently we believe that it has waived this issue on appeal. Senese v. City of Chicago, 88 Ill.App. 2d 178, 232 N.E.2d 251.

Defendant has also contended that even if the second amended complaint was properly before the court, “the evidence did not support the necessary elements of estoppel.” Defendant argues that in order to establish an equitable estoppel, plaintiff was required to prove that its misleading conduct was the proximate cause of her injuries. Consequently it is claimed that since negligent acts or omissions at the stable caused her injuries, and not representations as to who owned it, defendant cannot be held liable. We disagree.

Where a defendant holds “itself out as one engaged in maintaining and operating [a] business in the course of which the negligence arose,” it may be held hable. (Trust Company of Chicago v. Sutherland Hotel Co., 389 Ill. 67, 73, 58 N.E.2d 860; see also Burke v. Piper's Super Service Stations, 312 Ill.App. 656, 38 N.E.2d 785; Cornwell v. Leiter Building Stores, Inc., 259 Ill.App. 460.) In Cornwell, for example, where defendant proprietor of a store building granted a license to a merchant to operate a beauty parlor in the building, the court held that since defendant held itself out as the owner and operator of the beauty shop, and these representations were reasonably relied upon by a patron of that facility, defendant could properly be held liable for injuries she suffered when she received a permanent wave of her hair.

In the instant case we believe that the evidence clearly demonstrates that defendant held itself out as the owner and operator of the stables. Defendant distributed to its guests brochures and promotional literature indicating the availability of horseback riding facilities at the resort. This material was placed in the lobby and guest rooms of the lodge even after June 1, 1969, the ostensible date of the transfer of the stables to Homestretch. The manner in which the stables were operated was apparently unaffected by the transfer. Guests continued to charge their horseback riding expenses to their bills at the lodge. The stables continued to issue receipts headed “Pheasant Run Farms.” Papers filed in support of Farmers bankruptcy petition indicate that during the period in question the stables were operated under the name “Pheasant Run Farms.” Although evidence was introduced to the effect that a “Homestretch” sign had been placed in front of the stables, there is considerable conflict in the testimony as to whether the sign had been erected and painted by June 14, 1969, the date on which plaintiff was injured. Moreover, the mere presence of a sign labeled “Homestretch” was more than counterbalanced by the manifestations of continued ownership and operation of the stables by defendant.

The record also demonstrates that plaintiff relied on defendants representations of ownership and operation of the stables. She testified that she went to the “Pheasant Run Stables” because “I have taken riding instruction — that I would like to ride someplace where I’m half way sure that things are well cared for, that everything is in good condition and I can be completely well, confident of the horse I’m going to be riding.”

In light of this record, we believe that a finding that defendant was estopped from denying ownership and thus was liable was not against the manifest weight of the evidence. Accordingly, the judgment entered below is affirmed.

Affirmed.

BARRETT, P. J., and LORENZ, J., concur.

       Prior to trial counsel for Homestretch, Inc., was given leave to withdraw, and a default order was entered against it.

       Section 60 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 60) provides in pertinent part:

        “Upon the trial of any case any party thereto or any person for whose immediate benefit the action is prosecuted or defended, or the officers, directors, managing agents or foreman of any party to the action, may be called and examined as if under cross-examination at the instance of any adverse party.”


source: Caselaw Access Project

author: Mr. JUSTICE STAMOS

license: Public Domain

text:
    Vito Saputo, Plaintiff-Appellant, v. Jerome Fatla, d/b/a Jerry’s Shell Service, et al., Defendants-Appellees.
    (No. 58611;
    First District (2nd Division)
    January 28, 1975.

      Rehearing denied February 25, 1975.

      Baker & McKenzie, of Chicago (Francis D. Morrissey and Thomas F. Tobin, of counsel), for appellant.
    Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellees.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

This action was brought by plaintiff, Vito Saputo, against defendants, Jerome Fatla, d/b/a Jerry’s Shell Service, and Shell Oil Company (hereinafter Shell), for injuries sustained when plaintiff allegedly fell in the restroom of a gasoline station owned and operated by defendants. The jury returned a verdict in favor of both defendants and judgment was entered thereon. On appeal, plaintiff does not contend that the verdict is against the manifest weight of the evidence, but argues that numerous evidentiary and instructional errors deprived him of a fair trial. At trial, the following evidence was adduced:

The plaintiff, Vito Saputo, testified that in 1965 he was a sales representative for a garment-dying and -cleaning service, and operated a pick-up and delivery service which required him to drive approximately 1500 miles a week. In November of 1965, he attended the State Cleaners and Dyers Convention in Chicago. The convention concluded on a Sunday, November 28, 1965, and he departed for his home in Springfield, Illinois about 2 P.M. After proceeding on the Stevenson Expressway for a short time, he exited to purchase gas. He drove into the Shell station in question and, after directing the attendant to fill the tank with gas, proceeded to the men’s room.

Plaintiff stated that he opened the door of the washroom and, seeing that it was dark, stepped inside reaching for the light switch at the same time. Just inside the washroom, his foot slipped causing him to fall on his buttocks and back. Pie stated that there was three-quarters of an inch of water on the floor and that it was a little slimy as though it had been there for a while. Water was overflowing from the toilet bowl and the top of the tank was off and resting on the side. He arose and walked to the front of the station for a rag to wipe his hands and told the attendant that he had fallen and that the restroom floor was covered with water. He further stated that he made no specific complaint of injury at that time.

After leaving the station, plaintiff proceeded home to Springfield and felt the pain getting worse along the way. When he arrived home, he called his doctor who prescribed some pain pills. The following day he contacted Dr. Zaricznyj who sent him to a hospital for treatment. Pie was placed in traction and remained in the hospital for 2 weeks. After he was released from the hospital he was unable to return to work and hired a man to work his route from December 1965 to August 1966. During this time, he went to Mayo Clinic where he was examined by several doctors and a spinal fusion was performed upon him. When he returned to Springfield, his doctor advised him not to return to work.

Plaintiff resumed his route in October of 1966, and continued at his employment until 1969. At that time, the pain became unbearable, and he was unable to continue his employment. Plaintiff stated that his physical condition at the time of trial was “all right,” although he could not engage in all the physical activities that he did prior to the incident on November 28, 1965.

Thomas McDuff testified, under section 60, that he was employed by Shell as a district engineer. He stated that there were no records of any washroom repairs in 1965 because day-to-day maintenance records are kept for only 3 years. Tire witness further stated that the lease and dealer sales agreement are the two documents that control the operation of the business between the operator and Shell. Under the dealer sales agreement, the obligation for maintenance and repair of station facilities .was placed upon the station operator, but in practice Shell assumed responsibility for maintenance and repair of station equipment and facilities.

The witness explained that the average toilet is designed on a trap principle. Water can be poured continuously into an open bowl and as long as it does not exceed the cap of the drain pipe, the water will continue to carry away. An overflow will occur only when there is an obstruction in the toilet itself, a break in the bowl, or when the plunger that keeps the water in the tank is jammed closed.

Jerome Fatla testified pursuant to section 60 that he operated the Shell station in question. On November 28, 1965, he worked from 8 A.M. until 1:30 P.M., when he was relieved by his employee, Emil Understafl. Upon his return to the- station, at about 5 or 5:30 in the afternoon, he noticed an “out of order” sign on the restroom door. Water was running out from under the door. Inside he observed that water was collecting on the floor, that the commode cover was placed on the seat, that the stopper was forced back, and that water was overflowing the seat. He pulled the stopper around so that it would go back into the hole in the bottom of the cabinet. He then pulled the flap causing the Overflow to stop. The toilet was flushed and it subsequently operated properly. In his opinion, the only thing wrong with the toilet was that the stopper was forced back so that it was not properly seated in the hole. After resetting the stopper, the witness mopped up the water in the restroom; he did not use a cleaner of any sort because the water was absolutely clear. The restroom was then returned to public use.

The witness stated that there was no particular time when the washrooms were cleaned, but that he had cleaned the washroom floor immediately before he left for home that afternoon at 1:30. He did not •use a solvent or a cleaner when he mopped the washroom floor at that time. It was not his experience to find oil, grease or gasoline on the floor.

Shell did all the maintenance of equipment and he would call them for plumbing repairs. In July or August of 1965, Shell was called to repair some plumbing at the station. There was a problem with the field, but not with the washrooms. Approximately once a week, Shell would have a man come out and check the washrooms. At times there were special contests for the cleanliness of stations.

On cross-examination, Mr. Fatla testified, over objection, that his cleanliness program did very well and he received several awards for his operations.

Testifying on his own behalf, the witness stated that the first time he was aware of Mr. Saputo’s complaint that he had fallen in the washroom was a couple of days after the alleged incident when he received a letter from either Mr. Saputo or his attorney.

Thomas Null testified that in 1965 he was employed as a gas station attendant by defendant Fatla and on November 28, 1965, he worked at the station from 1:30 P.M. to midnight. No one complained to him of having fallen in a washroom, nor did he observe anyone with soiled or wet clothes while leaving the washroom area. His first knowledge concerning any fall was approximately a week later when his employer questioned him about it.

Emil Understall was also employed by' defendant Fatla on the day in question. At approximately 2 in the afternoon, a gentleman informed him that the washroom was wet. This person did not say anything about his clothes being wet, he did not complain that he had fallen on the floor, nor did he complain of any injury. After filling up the gentleman’s vehicle with gas, the witness went to look at the washroom. He saw some water on the floor as though someone had tampered with the handle or float. He then locked the door and put an out-of-order sign on it. The witness identified his initials on a gas receipt which had been issued to plaintiff on the day in question.

The medical testimony consisted of the evidence depositions of Dr. Zaricznyj, Dr. Bostrom, and Dr. Peterson, and the testimony of Dr. Hirschtick.

Dr. Zariczynj testified that he was a certified orthopedic surgeon and had first treated the plaintiff in 1963 for injuries sustained in falling off a ladder. The patient had previously consulted a Dr. Woody. He was treated with physical therapy but developed severe pain and numbness in the upper extremities. Five weeks before he saw the witness in 1963, the patient had been referred to a Dr. Hayner who diagnosed a cervical disc problem and performed surgery. Upon examining the patient, the witness stated that he had no pain in the neck but was complaining of pain in the low back. Based upon his examination and findings, the doctor concluded that the patient did not have a ruptured disc, but suffered from a lumbo-sacral sprain. The doctor prescribed a lumbosacral corset and physical exercises. The patient requested to be admitted to the hospital for traction, but the doctor did not do so.

The doctor next saw the patient on November 30, 1965. The patient related that he had fallen down 2 days previously and had landed hard on his buttocks. He developed severe pain in the low back which radiated down to his legs. The doctor stated that the medical significance of the fact that the patient spoke of the pain as radiating through his legs was that it indicated an irritation of the nerve roots in the low back.

The witness also conducted a medical examination of the patient. X-rays revealed a narrowing of the disc space between L-5 and S-l which was not present in the 1963 X-rays. He diagnosed plaintiffs condition as a herniated disc.

Dr. Bostrom testified that he is a consultant in neurology at Mayo Clinic and conducted a neurological examination of plaintiff in 1966. His history indicated that plaintiff's low-back complaints began 6 years earlier when he lifted a freezer. During the examination, the doctor stated that plaintiff overreacted, giving excessive responses to what was done to him. From a neurological point of view, Mr. Saputo was normal.

Dr. Peterson of Mayo Clinic testified that he is a specialist in orthopedic surgery and first treated the plaintiff in January of 1966. His history noted that plaintiff had back difficulty for many years; that he had a low-back injury while lifting a freezer some years ago; that he had fallen on a wet floor in a restroom; and that his back pain was much more severe the following day.

During the time plaintiff was at Mayo Clinic, the witness and a Dr. Svien operated on the patient. The operation was described as “a left partial hemilaminectomy, exploration of the lumbo-sacral space on the left and transplantation of bone, multiple iliac bone grafts to the spine, lumbar 5 to sacral 2, bilaterally.” Dr. Svien found a well-developed ridge of bone which was hypertrophic in nature, indicating degenerative changes at the lumbo-sacral joints. These findings were confirmed by the narrowed lumbo-sacral interspace on the X-ray. The operation was performed on the basis of the X-ray and on the subjective complaints of the patient.

During the course of treatment, Mr. Saputo mentioned that he had fallen from a tree in 1963 and ultimately had undergone surgery. He also related that he had had chiropractic and osteopathic treatment in the past and occasionally wore a brace for the past 4 years which really did not help.

Dr. Hirschtick testified that he is a certified orthopedic surgeon and had occasion to examine plaintiff on March 27, 1972. In examining the lower spine, he found that there was a restriction of forward flexion of the spine and a complete loss of extension and that the lateral flexion or bending of the spine involved a loss of 10 degrees in the range of motion. The straight-leg-raising test was positive, indicating that there was some trouble in or around the nerve roots in the area of the lower spine. The doctor also found some atrophy of the left thigh and left calf. The witness stated that these were objective findings and were confirmed by X-rays which indicated that the space between the fifth lumbar and sacrum was markedly narrow.

Dr. Hirschtick was then given a lengthy hypothetical set of facts which included: (1) the previous history of back injury and treatment due to lifting a freezer in 1959, an automobile accident of the same year, and the fall in 1963; (2) the details of the faU on the restroom floor in 1965; (3) the examination and diagnosis of the orthopedic surgeon made 2 days after the 1965 fall; (4) the diagnosis and operation performed by the neurologist and orthopedic surgeon at Mayo Clinic in 1988; (5) and the findings of the orthopedic surgeon who conducted an examination in 1972. Based upon these facts, tire doctor stated that in his opinion the condition of the man examined by the orthopedic surgeon in 1972 might or could be related to the injury sustained in November of 1965. The basis of his opinion was that except for the minor episodes in 1959 and 1963, he performed normally as far as his back was concerned until the slip and fall of November 1985. The faH produced a forceful injury to the discs in the lower spine, causing progressive pain in the back which radiated into the legs. The injury required hospitalization. However, the treatment employed, pelvic traction, failed to improve his condition. He then had to go to the Mayo Clinic where they removed the herniated disc and did a spinal fusion at the lumbo-sacral level. Although the witness stated that the diagnosis of the neurologist at Mayo Clinic was consistent with the incident of trauma that occurred on November 28, 1965, he was not allowed to state his opinion on whether the operation performed at Mayo Clinic was causally connected to the 1965 slip and fall. The doctor also gave his opinion that the man’s condition would not improve, that he would have pain in the future, and would require medical care and treatment.

Plaintiff’s initial contention is that the trial court, in two particulars, prevented the jury from fairly determining the issue of negligence on the part of defendant Fatla. It is first asserted that the court erred in allowing defendant Fatla to testify that he received “Cleanliness Awards” from Shell for the operation of his station. Upon examination of defendant Fatla under section 60, the witness gratuitously stated that Shell held special contests for the cleanliness of its stations. Plaintiff’s counsel made no motion to strike the remark. Upon cross-examination, defense counsel, over objection, was allowed to elicit that the witness did very weH with respect to the cleanfiness program and received several awards for his operation of the station.

It is plaintiff’s position that the cross-examination was irrelevant and prejudicial in that its effect was to indicate that defendant had a predisposition to maintain a clean washroom. Defendant maintains that the cross-examination was within the scope of the direct examination, and was thereby properly admitted into evidence.

Fatla’s testimony relating to his previous receipt of cleanliness awards was neither competent or relevant to the issue of whether defendant knew or should have known of the condition of the floor on the day in question. Moreover, the fact that on direct examination defendant, in passing, mentioned the existence of “special contests,” did not warrant the eliciting of testimony that defendant had received awards therefor. Although we recognize the rule that evidence which is otherwise inadmissible may be presented because similar evidence has been introduced by the adverse party (People v. Wilbert, 15 Ill.App.3d 974, 305, N.E.2d 173), it is without application to the instant facts. For the rule is merely protective and goes only as far as is necessary to shield a party from adverse inferences (98 C.J.S. Witnesses §422 (1957)); it does not permit a party to introduce evidence which should not be otherwise admitted merely because the adverse party has brought out some evidence on the same subject. Herget National Bank v. Johnson, 21 Ill.App. 3d 1024, 316 N.E.2d 191.

We initially note that defendant’s mention of cleanliness awards on direct was gratuitous and unresponsive to the question asked. Although plaintiff did not move to strike the remark, it did not create any adverse inference which would allow further explanation or rebuttal. Consequently, it was error to allow defendant to testify to his receipt of cleanliness awards. We are of the opinion, however, that the error was not of such magnitude to warrant reversal. Error committed in admitting evidence is harmless where the evidence is of small consequence as far as the result is concerned. (Borowicz v. Seuring Transit Co., 98 Ill.App.2d 326, 240 N.E.2d 314.) Here, the issue of negligence involved whether defendant Fatla knew or should have known of the accumulation of water on the washroom floor on the particular day of the occurrence. There was no dispute that the water had in fact accumulated and, more importantly, that such condition was caused by a malfunction of the toilet. It was further undisputed that Fatla had checked the washroom before he had gone home at 1:30 and that the incident alleged occurred shortly after 2 P.M. In the context of the factual issues presented, we think that the receipt of cleanliness awards by defendant Fatla could not have materially affected the decisive issue of whether defendant knew or should have known of the malfunctioning toilet and the resultant condition of the floor.

Plaintiff next contends that the court erred in failing to strike the following statements made by defendant Fatla which were unresponsive to the questions asked by plaintiff:

“Plaintiff’s counsel: My question is you just wiped it up and turned it back to the public in that condition, is that right?
Witness: In good condition, yes.
Plaintiff’s counsel: Do you have any regular cleaning and maintenance programs?
Witness: It is not a regularly-prescribed program, but all my men are instructed to check the washroom periodically.”

Given the nature of the questions asked, we believe that both answers were responsive. (See People v. Cruise, 130 Ill.App.2d 923, 266 N.E.2d 109.) Plaintiff further maintains, however, that the witness should be compelled to answer categorically “yes” or “no.” We disagree. The trial court is entitled to a certain latitude in ruling upon the form of testimony. (People v. Dickman, 117 Ill.App.2d 436, 253 N.E.2d 546.) This is particularly true when the phraseology of a question may not fairly admit of a categorical yes-or-no answer. We find no abuse of discretion when, as here, the answers were competent, relevant, and could reasonably have been expected from the questions propounded.

It is next asserted by plaintiff that the trial court erred in its refusal of plaintiff’s Instruction No. 23, taken from IPI 2d — 130.03. The instruction reads:

“A landlord who undertakes to make improvements or repairs upon the leased premises is under a duty to use ordinary care in carrying out the work even if the landlord was not under a legal obligation to make the improvements or repairs.”

Plaintiff contends that there was sufficient evidence to support the above instruction in that the testimony of defendant Fatla indicated that in July or August of 1965, he called defendant Shell for plumbing repairs. Since there was water on the floor on the day in question, plaintiff concludes that the jury could have found defendant Shell negligent in failing to make proper plumbing repairs. However, as not pointed out by plaintiff, Fatla testified that the repairs related to “some problem with the field, but not with the particular washrooms, anything like that.” The instruction in question addresses itself to affirmative conduct, and given the absence of any evidence connecting the “field” repairs with the particular malfunction of the toilet, the refusal of the instruction was proper. McKasson v. Zimmer Manufacturing Co., 12 Ill.App.3d 429, 299 N.E.2d 38.

It is next contended that the court erred in excluding the diagnosis of Dr. Zaricznyj concerning plaintiff’s condition on November 30, 1965. Based upon a physical examination and medical history, Dr. Zaricznyj stated his diagnosis as a “very possible herniated disc between L-5 and S-l.” Defendant’s objection was sustained and the answer stricken. However, the identical testimony was received into evidence during cross-examination when the witness stated: “My diagnosis was a very possible herniated disc.” It is further noted that plaintiff incorporated the above diagnosis in the hypothetical question posed to Dr. Hirschtick. It is generally the rule that a party is not harmed and may not complain of error in the exclusion of evidence when, as here, the same evidence is subsequently admitted. (Hester v. Goldsbury, 64 Ill.App.2d 66, 212 N.E.2d 316; Saviola v. Sears, Roebuck & Co., 88 Ill.App.2d 13, 232 N.E.2d 4.) Accordingly, plaintiff suffered no prejudice as a result of the court’s ruling.

In regard to medical testimony, plaintiff further contends that the court erred in refusing to allow Dr. Hirschtick to state his expert medical opinion, in response to a hypothetical question, on the causal relationship between the incident of trauma on November 28, 1965, and the operation performed at the Mayo Clinic in January of 1966. The witness was given a lengthy and detailed hypothetical set of facts which incorporated the witness’ testimony of his examination of plaintiff in 1972. Based upon these facts, the witness stated that the condition of the hypothetical man when examined in April of 1972 by the orthopedic surgeon could be related to the injury sustained in November of 1965, and that the hypothetical person could have pain in the future and could require medical care. The doctor was then asked whether the operation performed in 1966 was causally connected to the alleged trauma of November 28, 1965. Defendants’ objection to the question was sustained.

Defendants argue that the hypothetical question was improper in that the witness would have no way of knowing anything about an operation performed by others, and consequently, any answer by the witness would be pure guess and speculation.

In stating his opinion as to the causal relationship between two events or conditions, personal observation by the expert is no prerequisite to a hypothetical presentation. (Sherman v. City of Springfield, 77 Ill.App.2d 195, 222 N.E.2d 62.) Furthermore, a hypothetical question is not objectionable because it incorporates the diagnosis of another doctor. (Horwitz v. Michael Reese Hospital, 5 Ill.App.3d 508, 284 N.E. 2d 4.) Here, the hypothetical set of facts included the diagnosis of the operating physician, what the operation consisted of, and when it was given, as well as the patient’s prior history of back trouble. Although we hold that there existed a sufficient foundation in the evidence to support the facts assumed in the hypothetical, and that the witness should have been allowed to state his opinion as to the causal connection between the incident of November 28, 1965, and the operation in 1966, the trial eourt’s ruling did not constitute reversible error.

The witness, in concluding that the condition of the hypothetical man in 1972 could be causally related to the occurrence of November 28, 1965, stated that he based his conclusion, in part, upon the diagnosis rendered and operation performed at Mayo Clinic in 1966. He further stated that the 1966 diagnosis was consistent with the 1965 slip and fall. It was necessarily implied in the reasoning of the witness that the 1966 operation was causally connected to the incident of November 28, 1965. Therefore, the explicit statement by the witness of the causal relationship between the two events would have added little, if anything, to the testimony of the witness. We further note that in the context of the ultimate opinion stated by the witness — that the condition of ill being could be related to the 1965 fall — the causal connection between the operation and the fall can fairly be said to relate to the issue of damages, not liability. In view of the verdict of not guilty, it must be presumed that the jury did hot reach the issue of damages, and consequently, the error was not reversible. Kortlander v. Chicago Transit Authority, 56 Ill. App.2d 48, 205 N.E.2d 516.

Plaintiff further alleges that the court erred in striking plaintiff’s answer to a question propounded by plaintiff’s counsel:

“Counsel for Plaintiff: Did you make any specific complaint of injury at that time?
Witness: No.
Counsel for Plaintiff: Did you—
Witness: I just wanted to get out of there. Get home.*

On defendants’ objection the answer was stricken on the grounds that it was a volunteered statement. Plaintiff asserts that the trial court erred in sustaining the objection, because only the examiner has the right to object to the answer as being unresponsive. (Hester v. Goldsbury, 64 Ill. App.2d 66, 212 N.E.2d 316.) Defendants contend that the statement was not given to a question and therefore there is no issue as to whether it is responsive and who has a right to object to it. (98 C.J.S. Witnesses §§325, 356 (1957).) The trial judge apparently viewed the statement as á volunteered remark made in the absence of a pending question. We find no error in his characterization of the statement (See Felton v. Coyle, 95 Ill.App.2d 202, 238 N.E.2d 191), and further note that in light of the witness’ subsequent identical testimony, plaintiff has failed to demonstrate any prejudice resulting from the ruling. Hester v. Goldsbury, supra.

It is further assigned as error that defendants were allowed to cross-examine and impeach plaintiff with reference to statements concerning unconnected prior injuries. The argument is' without merit.

During direct examination, plaintiff testified that in 1959 he “popped” his back while helping a friend move a freezer and that in 1963 he fell from a ladder while trimming a tree and injured his lower back and neck. On cross-examination plaintiff also admitted that in 1959 he was hit by a snowplow and sustained injuries to the low back. The witness stated that he did not receive treatment for the injuries from a Dr. Lafata, but that the latter merely took X-rays and “couldn’t find anything.” Defense counsel was then allowed to impeach plaintiff by the witness’ deposition wherein he stated that he had been treated by Dr. Lafata for a “few weeks.” In response to a question whether he had injured his back in the 1959 automobile accident, the witness stated that “[i]t was mostly my thigh and my leg.” The witness was then asked whether he recalled answering written interrogatories concerning the injury. Plaintiff responded: “No specific main injury. You have an accident, sometimes you just hurt all over.” Defense counsel, at this point, read an answer to the pertinent interrogatory which stated: “Auto accident, 1959, low back injured.” There was no reference to any injury other than the low back.

Generally, a plaintiff may be cross-examined as to his previous physical condition or injuries when they are of a nature similar to those involved in the immediate litigation. (Palsir v. McCorkle, 70 Ill.App.2d 425, 216 N.E.2d 682.) Such examination is proper for either showing that his present physical condition is not the result of the occurrence for which the immediate suit was brought, but was caused, in whole or part, by an earlier injury or pre-existing condition (Palsir v. McCorkle, supra), or for the purpose of discrediting the plaintiff as a witness or laying a foundation for impeachment. Springfield v. City of Granite City, 157 Ill.App. 61; Gordon v. Checker Taxi Co., 334 Ill.App. 313, 79 N.E.2d 632.

Plaintiff correctly maintains that cross-examination of the plaintiff as to previous injuries not related to the one sued on is improper. (Marut v. Costello, 34 Ill.2d 125, 214 N.E.2d 768.) However, all of the previous injuries sustained by plaintiff involved the lower back; they were of a nature similar to the injury of the instant suit and were proper subjects for consideration by the jury in their deliberations. (Geaschel v. Rokita, 89 Ill.App.2d 161, 232 N.E.2d 204; Palsir v. Mc-Corkle, supra.) Moreover, plaintiff, having injected the fact of previous injuries into the case, can not complain of defendants’ inquiry into the matter on cross-examination. (See Palsir v. McCorkle, supra.) Since the fact of prior injuries was both material and probative, it follows that the impeachment thereon was proper as well. See Gordon v. Checker Taxi Co., supra.

Plaintiff further contends that the court erred in allowing defense counsel, during closing argument, to speculate on facts not in evidence. After discussing the evidence, defense counsel argued that, based upon circumstantial evidence, it was “very questionable whether [plaintiff] ever fell the way he says he did.” Defense counsel argued that it was just as reasonable to believe that plaintiff had inj'ured his back while working at the convention he attended that weekend.

In arguing a case to the jury, counsel is allowed broad latitude in drawing reasonable inferences and conclusion from the evidence (Johnson v. Chicago Transit Authority, 11 Ill.App.3d 16, 295 N.E.2d 573), and may further comment, within reasonable limits, on those who give evidence. The scope of permissible argument is within the sound discretion of the trial court. (Jackson v. Whittinghill, 39 Ill.App.2d 315, 188 N.E.2d 337.) In determining whether the court has abused its discretion, we are guided by the following language in Reinmueller v. Chicago Motor Coach Co., 341 Ill.App. 178, 186, 93 N.E.2d 120, 124:

“Several of the statements denounced are inferences which plaintiffs counsel was entitled to deduce from the evidence. Wide latitude should be allowed in this regard. If the rule with reference to improper inferences were applied as strictly as counsel for defendants urge, it would have a tendency to deprive litigants of the right of having their cases argued, for the prudent attorney would in such case forego argument rather than risk reversible error. In Commonwealth Elec. Co. v. Rose, 214 Ill. 545, the court said at page 561:
‘Counsel may arraign the conduct of the parties, and impugn, excuse, justify, or condemn motives, so far as they are developed in evidence, or assail the credibility of witnesses when it is impeached by direct evidence, or by inconsistency, or incoherency of their testimony, their manner of testifying, their appearance upon the stand, or by circumstances. “He may argue such conclusions from the testimony as he pleases, provided he does not misquote witnesses.” ... It has been said: “Just and fierce invective, when based upon the facts in evidence and all legitimate inferences therefrom, is not discountenanced by the courts.” * # #’»

As applied to the instant case, we find no abuse of discretion in allowing the argument. The thrust of this portion of the argument was that either plaintiff did not fall or, if he did, he fell at some other place. The evidentiary basis for the inference was the testimony that he made no complaint to defendants’ employees of the alleged fall or injury, and that his clothes were not wet. We feel that the latitude of expression allowed defense counsel did not prevent plaintiff from receiving a fair trial.

Plaintiff’s final argument is that the court erred in allowing defendants to make reference to a “lien letter” from plaintiff’s attorney. We must disagree with plaintiff’s unwarranted characterization and assessment of the pertinent testimony. There was no mention of any “lien” and the sender was described in the disjunctive as either “Mr. Saputo or his attorney.” We hold the contention to be without merit.

As earlier noted, plaintiff does not contend that the verdict was against the manifest weight of the evidence, but argues that the cumulative effect of the alleged errors warrants reversal and remandment. However, where it is not contended that the verdict was not supported by the manifest weight of the evidence, the verdict will not be disturbed for contentions of a nonprejudicial nature. (Hann v. Milla, 95 Ill.App.2d 447, 237 N.E.2d 753.) For the object of review by this court is not to determine whether the record is completely free of error, but whether any error occurred which operated to the prejudice of appellant or unduly affected the outcome below. (Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 199 N.E.2d 769.) We have carefully examined the record in this regard, and hold that the errors committed, either individually or collectively, do not require a new trial.

Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.

DOWNING, P. J., and HAYES, J., concur.

         At this point, plaintiff testified that he had injured his back previously. In 1959 he had “popped” his back while helping his friend move a freezer and in 1963 he fell from a tree injuring his back.

       Ill. Rev. Stat. 1973, ch. 110, par. 60.


author: Mr. JUSTICE LEIGHTON

text:
    Roger Schwartz, a minor, by Arthur Schwartz, his father and next friend, Plaintiff-Appellee, v. Andrew Kominski, Defendant-Appellant.
    (No. 60085;
    First District (1st Division)
    January 28, 1975.

      Lee Phillip Forman, of Chicago, for appellant.
    Edwin A. Strugala and Marshall I. Teichner, both of Chicago, for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This appeal presents three issues that touch on the right to trial by jury in a civil suit: (I) whether a defendant must be present at the trial in order to preserve his demand that the suit be heard by a jury; (2) whether it is error for a trial judge to decide a civil suit without a jury after defendant answered the complaint and filed a jury demand; and (3) whether a petition under section 72 of the Civil Practice Act will lie to set aside a judgment entered by a trial judge who heard a civil suit without a jury while defendant’s jury demand was on file.

On September 4, 1988, plaintiff filed a complaint alleging that on September 3, 1966, he was injured in Chicago by defendant’s careless and negligent operation of an automobile. On being served with a summons, defendant, believing he was insured, sent it to an insurance company whose attorney appeared for him, paid the requisite fees, filed an answer and demanded a trial by jury. On April 17,1972, the attorney withdrew as counsel in the case because the insurance company obtained a judgment declaring that the policy on which defendant had relied was not in force at the time of the accident alleged in plaintiff’s complaint. A little less than 2 months later, the case was called for trial; defendant did not appear. The trial judge proceeded to hear the case without a jury, ■and in an order which found that defendant, although notified, had not appeared, he awarded plaintiff judgment for damages in the sum of $40,000 with costs.

Plaintiff’s counsel mailed a copy of the judgment order to defendant and sometime later proceeded with citations to discover assets. Following ■service of one of these, defendant filed a petition under section 72 of the Civil Practice Act alleging, among other things, that the case against 'him was decided without a jury although he had not waived his jury demand. He prayed that the $40,000 judgment be vacated and the cause set for trial.' The petition was denied. For the reasons that follow, we reverse.

A defendant who has preserved his right to trial by jury in a civil suit need not be present in court in order to protect his right to have the case heard by a jury. (North American Provision Co. v. Kinman, 288 Ill.App. 414, 6 N.E.2d 235; compare Westmoreland v. West, 19 Ill. App.2d 161, 153 N.E.2d 275; see Moreno v. Hernandez (Tex. Civ. App. 1968), 430 S.W.2d 125; People v. Malins (1972), 24 Cal.App.3d 812, 101 Cal. Rptr. 270.) And, where a case is triable by jury as a matter of right, 'a court may not try it without a jury where a jury demand has been properly made. 50 C. J. S. Juries § 104 (1947).

It is error for a trial court to hear a civil suit without a jury and assess damages after a defendant has appeared, answered the complaint, made a jury demand, and has not been defaulted. (Eberhart v. Foster, 165 Ill.App. 175; see Westmoreland v. West, 19 Ill.App.2d 161, 153 N.E. 2d 275; Panhandle & S. F. Ry. Co. v. Lawless (Tex. Civ. App. 1936), 94 S.W.2d 213; Finnell v. Byrne (Tex. Civ. App. 1928), 7 S.W.2d 139.) As a general rule, the error is one of fact. We do not agree with plaintiff’s argument that, if anything, the trial judge’s hearing of the case without a jury was an error of law. This argument presumes that when die case was called for trial, the judge knew that defendant’s jury demand was on file. The record before us does not support this argument. Were we to agree with plaintiff, we would have to assume that either the trial judge was told of defendant’s jury demand or he examined the court file, discovered its presence and then proceeded to deprive defendant of his right under the jury demand.

We will not make such an assumption. We prefer to assume that if the judge had known of defendant’s jury demand, he would not have heard the case without a jury. (See Heinsius v. Poehlmann, 282 Ill.App. 472; Frank v. Newburger, 298 Ill.App. 548, 19 N.E.2d 147.) Therefore, we conclude that the trial judge did not know the jury demand existed; he must have assumed the case was nonjury when that status did not exist. An error of fact occurs when some fact which really exists is unknown, or some fact is Supposed to exist which really does not. (Mowatt v. Wright (N.Y. 1828), 1 Wend. 355, 19 Am. Dec. 508.) For example, in Wagner v. Shelly (Ct. App. Mo. 1948), 210 S.W.2d 394, a clerk erroneously placed a civil suit for damages on the equity and jury waived docket. The trial judge believing, that defendant who was not present had waived his jury demand, proceeded on the assumption that the case was to be heard without a jury. It was held that the error of the trial judge in proceeding with the cause was an error of fact. (210 S.W.2d 394, 397.) The court concluded that had the trial judge known of defendant’s jury demand, the judgment would not have been entered.

It is well settled that a petition under section 72 of the Civil Practice Act is the proper procedure for bringing to a trial court’s attention an error of fact which would have precluded entry of the judgment had the fact been known at the time. (See Selvaggio v. Kickert School Bus Line, Inc., 46 Ill.App.2d 398, 197 N.E.2d 128; compare Hawthorne Paper Sales Co. v. Kolf, 41 Ill.App.2d 346, 190 N.E.2d 604.) Therefore, the trial court erred in its order denying defendant’s section 72 petition. (Skivington v. Lehman, 36 Ill.App.2d 479, 184 N.E.2d 785; see Trojan v. Marquette National Bank, 88 Ill.App.2d 428, 232 N.E.2d 160; Clark v. Brown, 121 Ill.App.2d 280, 257 N.E.2d 565.) The order is reversed and the cause remanded with directions that the court grant the petition and set the case for trial before a jury, or for other and further proceedings that are not inconsistent with the views expressed in this opinion.

Reversed and remanded.

STAMOS and HAYES, JJ., concur.


author: Mr. JUSTICE CRAVEN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Worlow, Defendant-Appellant.
    (No. 12221;
    Fourth District
    November 6, 1974.

      Opinion modified upon denial of petition for rehearing March 6, 1975.

   Opinion by

Mr. JUSTICE CRAVEN.

John F. McNichols and J. Daniel Stewart, both of State Appellate Defender’s Office, of Springfield, for appellant.

C. Joseph Cavanagh, State’s Attorney, of Springfield (Michael Prall, of Circuit Attorneys Project, of counsel), for the People.


author: Mr. PRESIDING JUSTICE RECHENMACHER

text:
    Roger A. Hoekstra, Plaintiff-Appellee, v. The City of Wheaton, Defendant-Appellant.
    (No. 73-103;
    Second District (2nd Division)
    February 5, 1975.

      Rehearing denied March 5, 1975.

      Gerald J. Brooks, of Naperville, and Donovan, Dichtl, Atten, Mount-castle & Roberts, of Wheaton, for appellant.
    Peregrine, Stime & Henninger, of Wheaton, for appellee.
   Mr. PRESIDING JUSTICE RECHENMACHER

delivered the opinion of the court:

This is an appeal from the judgment of the circuit court of Du Page County declaring the zoning ordinance of the City of Wheaton invalid as applied to the plaintiff’s property.

The property in question is a 5.5-acre parcel of land within the city limits, roughly rectangular in shape and containing 21 lots. It is bisected by a residential improved street (Cole Street). There are single-family residences to the north, east and southwest of the property. Wheaton North High School adjoins the property on the west, and Wheaton Park District owns the land to the southeast except for an intervening vacant tract. A dog kennel and a stable, both nonconforming uses, are located adjacent to the northwest corner of the property. The topography slants from west to east. A drainage swale cuts across the property, running roughly from northwest to southeast to the eastern edge of the property, then along the eastern edge south to Cole Street, thence to a culvert and along the south border of the property. This swale varies in depth from a few inches to some 12 feet as it continues from northwest to southeast.

The plaintiff purchased the 5.5-acre tract in 1970 for $140,000 from a Dr. Tilliman who had owned it since 1956. At that time the property was unimproved, but streets, sewer and water were installed in 1967 following its annexation to Wheaton. The property is zoned R-3 single-family residential with a minimum lot size of 10,000 square feet.

Following his purchase of the property the plaintiff employed one Walter Edgar Green, Jr., an architect with a minor degree in land planning, to prepare a land-development plan for the property. Mr. Green testified he discussed the project with Mr. Murphy, city planner of the City of Wheaton, and showed him some tentative plans for the proposed development. Mr. Murphy testified that his function was to “assist” property owners who had vacant property which they wished to develop, and to this end he discussed problems inherent in the property and reviewed tentative plans for its development with Mr. Green. Mr. Green testified that he told Murphy that Dr. Hoekstra wished to develop the property according to the R-5 multifamily standards and requirements under the Wheaton zoning ordinance, including the R-5 standards as to density. He was under the impression that Murphy never objected to the R-5 concept; however, Murphy testified he did object to the density which could be developed in the project under R-5 standards and indicated a minimum of 8 units per acre would be more compatible with the city’s wishes than the 13 or 14 units theoretically possible under R-5 zoning. Murphy referred to the Wheaton Comprehensive Plan as indicating the maximum density of 8 living units per acre in a multifamily project under R-5 zoning.

Whatever the fact is as to the amount of conversation on the point of density of population in the proposed development and whatever density was indicated by Murphy as being satisfactory, the plan as finally presented to the Wheaton City Council was a planned unit development of 72 living units, not permitted under R-3 zoning but requiring a change in zoning to R-5 under the Wheaton zoning ordinance.

In his report to the city council on the proposed plan of development, Murphy, the city planner, conceded that the feasibility of the proposed use of the site was “excellent,” whereas there would be difficulties with the development as single-family lots. He recommended that the petition for a change of zoning be denied “at this time and further study of the proposal be pursued by the city and developer in order to arrive at acceptable resolutions of the outstanding questions of density, architectural treatment, ingress, egress, traffic and unit distribution.” The city council, upon being presented with the plan, disapproved it and denied plaintiffs petition, and the present declaratory judgment suit followed. The plaintiff asked in this suit that the Wheaton zoning ordinance be declared null and void in its application to the plaintiffs property and that the city be restrained from interfering with plaintiffs construction and operation of a planned unit development of 72 multifamily units on the said premises.

There was a great deal of testimony as to the difficulties of the terrain —affecting some of the lots — and other adverse factors such as the nearby kennel and stable and the proximity of Wheaton North High School and its traffic. There was also considerable speculation as to the cost of remedying the drainage problems of the property. All of this evidence appear^ tq boil down to this; that the plaintiff was aware of the zoning classification and also of the defect inherent in the property from a single-family residence standpoint when he bought the property, that the property could be more profitably developed as a Planned Unit Development than as separate homesites for single-family residences, that the city’s main objection to the proposed development is that the comprehensive plan for the city calls for a lower density — around 8 units per acre — in this area, that there may be some trafile problems created by the development at certain horns but not significantly more than under single-family development, and that on the whole there would be little or no adverse affect on the character of the surrounding area by reason of the proposed development.

It is apparent that the differences between the plaintiff and city are very narrow in scope — essentially a question of density of the proposed living units. The city’s position, however, is weakened by the city planner’s acknowledgment that the present zoning classification is inadvisable due to certain factors such as the high volume of high school traffic, the drainage problem of some of the lots and the proximity of the kennel and stables and his consequent recommendation that a Planned Unit Development be permitted.

Moreover, since the Wheaton zoning ordinance permits a planned unit development to have a maximum density somewhat in excess of the proposed plan, the plaintiff contends that the city cannot decline the petition on the ground of excessive density, since the city concedes that a planned unit development is more feasible than the present single-family classification for this site.

Opposed to these arguments in the plaintiff’s favor, the city points out that a municipal zoning ordinance has a presumption of validity and is not to be overthrown even as respects a particular piece of land, merely because another zoning classification might be more logical. (Chicago Title & Trust Co. v. City of Chicago (1970), 130 Ill.App.2d 45.) Moreover, density is a legitimate concern in a zoning case and an adequate basis for classification (Cosmopolitan National Bank v. Chicago (1961), 22 Ill.2d 367), but in this case Mr. Murphy, the city planner, not only admits the merit of the multiple-dwelling concept — he actually recommends that the concept be adopted for the property in question and admits the undesirability of the present R-3 classification. As to the objection of density, which appears to be the city’s main objection to the project as proposed by the plaintiff, the evidence was both sparse and unconvincing. In speaking of the traffic which might be generated by the 72 dwelling units as compared with the existing traffic, most of which is generated by the high school — Mr. Murphy acknowledged the traffic would only be increased “slightly” and that “the amount of traffic out of multiple family units is fairly low ratio as compared to a single family.” Mr. Neuses, the city’s expert real estate witness, testified that in his opinion it was “pretty much of a toss-up” as far as safety was concerned between the traffic which would be generated from single-family lots and that which would be generated by the proposed 72 dwelling units under the multiple-dwelling plan proposed by the plaintiff.

While the question of drainage was given some attention in the testimony, there was no definite showing that the proposed development would increase the problem as compared with the development of the site as single-family lots — it was a problem either way, and while Mr. Murphy testified that “it is possible on a lower density land use development to accomplish the surface drainage of this water rather than piping it through pipes,” no definite conclusion was reached as to whether or how this could be accomplished. This was too tentative to be considered as evidence supporting the city’s rejection of the petition based on the increased drainage problem. Drainage was a problem whether developed as a multiple-dwelling project or as single-family residences, and this is indicated in Mr. Murphy’s report to the city council of March 17, 1972, wherein he cites the drainage problems on certain lots as a reason for recommending the site for development of a planned unit development.

Throughout Mr. Murphy’s testimony it is apparent that the city’s objections to the proposed development are based more on the standards of the city’s Comprehensive Plan — which called for a maximum of 8 dwelling units per acre under R-5 zoning — than on any question directly bearing on the health, safety or convenience of the community. By implication it was conceded by Mr. Murphy that the present zoning of R-3 does not represent the highest and best use of the land, since he recommended a different zoning.

Even though the present zoning classification does not represent the highest and best use of the land in question this is not a basis for finding it invalid, Chicago Title & Trust Co. v. City of Chicago (1970), 130 Ill.App.2d 45, but in order to sustain its validity in a case where another use of the land is clearly more appropriate, it does have to be shown that the restriction is reasonably related to the public health, safety or morals. (La Salle National Bank v. Village of Harwood Heights (1971), 2 Ill.App.3d 1040.) This is, of course, especially true where the loss to the owner of the land is much greater than the benefit to the public. In Mobil Oil Corp. v. City of Rockford (1972), 8 Ill.App.3d 649, this court said at page 654:

“The record affords no evidence to show that a substantial public interest would be served by denial of the proposed use. Where the public gain is small compared to the hardship imposed on the property owner, the presumption of the validity of the ordinance will be overcome.”

The testimony in the case before us does not indicate there would be any substantial gain to the public in continuing the present zoning classification. The impact on the surrounding neighborhood, considering the likelihood that the property will otherwise remain wholly or partially vacant, is likely to be more beneficial than adverse. The property has been vacant for a long period of time under the present zoning classification and some housing starts there have been abandoned. It is not, obviously, a matter of public concern therefore to continue the present classification. Of three neighbors who testified on this point, two did not anticipate any adverse affect on their own property from the proposed project.

It is our opinion, therefore, that the presumption of the validity of the ordinance as to this particular tract of land has been overcome because of:

(a) The consensus that the present zoning classification is not the highest and best use of the land; (b) tire lack of any evidence that the proposed change in classification would adversely affect the surrounding community; (c) the disproportion between the gain to the public and the loss to the property owner in maintaining the present zoning, and (d) the city’s failure to show that the retention of the present zoning classification is required for the public health, safety or convenience.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Judgment affirmed.

T. MORAN and DIXON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bradley Edward Allen, Defendant-Appellant.
    (No. 73-244;
    Second District (2nd Division)
    February 10, 1975.
    Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz, of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. PRESIDING JUSTICE RECHENMACHER

delivered the opinion of the court:

The defendant was charged with the offense of burglary. He waived indictment, entered a plea of guilty and was sentenced to not less than 1 year nor more than 3 years in the penitentiary. In this appeal the defendant contends his conviction should be reversed because the trial court failed to properly admonish him in accordance with Supreme Court Rule 401(b) before accepting the defendant’s waiver of indictment. Supreme Court Rule 401(b) (Ill. Rev. Stat. 1971, ch. 110A, par. 401 (b)) provides as follows:

“(b) Waiver of Indictment. Any waiver of indictment shall be in open court. The court shall not permit a waiver of indictment by a person accused of a crime punishable by imprisonment in the penitentiary unless he is represented by counsel or has waived counsel as provided in paragraph (a) of this rule and unless the court, by addressing the defendant personally in open court, has informed him of and determined that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he can be prosecuted for the offense only after indictment by a grand jury unless he waives indictment.
Prosecution may proceed by information or complaint after waiver of indictment by the defendant if the State expressly concurs in the waiver in open court.”

It should be noted that the language of Rule 401 quoted above, while clear and definite as to the judge’s obligation in admonishing tire defendant, does not prescribe any particular language, nor does it require that the defendant himself use any particular form of acknowledgment of his understanding of the admonishment. All that is required is that the judge inform the defendant personally in open court of his rights and determine that the defendant understands such rights well enough to make a knowing and intelligent waiver of them. As long as the judge brings the question to the attention of the defendant in open court so that it becomes part of the common-law record and obtains from the defendant a response indicating to the judge’s satisfaction a knowing intention to relinquish such right, there is substantial compliance with the rule, People v. Loy, 52 Ill.2d 126; People v. Page, 38 Ill.2d 611, 615-616.

Prior to the waiver of indictment the defendant had made a written confession, which was on file with the police, describing the burglary in detail. No motion was made to suppress this confession, and it may therefore be deemed to have been voluntary. In the light of this prior confession it is clear that the following colloquy, which took place in open court, evidenced a knowing and voluntary waiver by the defendant of his right to indictment by the grand jury:

“THE COURT: Bradley Edward Allen, were you in the courtroom when I was explaining to the Behrendts what a waiver of the Grand Jury is?
THE DEFENDANT: Yes, your Honor.
Q. Could you hear me?
A. Yes.
Q. You understand what your lawyer is doing? He has made a motion to waive the Grand Jury. You are entitled to have your case presented to twenty-three citizens by the State’s Attorneys Office to see whether they think that is enough evidence to hold you to trial. You understand that you have that right?
A. Yes, your Honor.
Q. How far did you go in school?
A. Sophomore.
Q. You read and write English and you have had civics, so you know what you are doing?
A. Yes, your Honor.
Q. You want to waive the Grand Jury?
A. Yes.
Q. You have any questions before you waive or give up yóur right to a Grand Jury?
A. No, your Honor.”

In view of this colloquy there can be no doubt that the defendant was sufficiently informed as to the nature of the right he was waiving and that he understandingly waived it. While the rule provides that the court should also explain to the defendant, prior to accepting a waiver of indictment, the nature of the charge and the minimum and maximum sentences applicable, the fact that this was done immediately afterwards when the plea of guilty was accepted instead of immediately prior to waiving the grand jury is inconsequential in view of the admittedly voluntary plea of guilty made immediately thereafter following a thorough admonishment by the court. In view of his previous record the defendant could not possibly have been prejudiced by the order in which the admonishment as to minimum and maximum sentence and the nature of the charge were given with respect to the grand jury waiver, and the guilty plea following forthwith would have obviated a trial in any event. As was said by our supreme court in People v. Page, 38 Ill.2d 611, 615-16:

“In fact, the only conceivable manner in which defendant here could have been prejudiced by his waiver of indictment is to assume that a grand jury hearing the evidence against a defendant who has made an unchallenged, incriminatory statement [which the defendant in this case had made also] regarding an armed robbery might not indict him. To say that the existence of this highly improbable possibility constitutes sufficient cause to reverse the judgment and vacate the plea of guilty accepted only after a thorough explanation and admonition by the trial judge would be an exaltation of form over substance to which we cannot subscribe.”

The record taken as a whole in this case completely refutes the idea of any prejudice to the defendant resulting from his waiver of indictment by a grand jury. In the recent case of People v. Dudley, 58 Ill.2d 57, 60-61, our supreme court, in affirming a judgment of conviction, said:

“It does not follow, however, that the failure to comply with these provisions of Rule 402(b) must result in a reversal of the judgment of conviction. There is no claim that the plea of the defendant, who was represented by counsel, was not voluntary. There is no other claim of harm or prejudice to the defendant. * * * What we observed in People v. Morehead, 45 Ill.2d 326, 332, is appropriate her-e: ‘It is not the policy of this court to reverse a judgment of conviction merely because error was committed unless it appears that real justice has been denied * *

The defendant cites the case of People v. Roberts (4th Dist.), 5 Ill. App.3d 840, as establishing that lack of proper admonishment as to waiver of indictment negates a conviction even where there is a subsequent guilty plea. But that case is clearly distinguishable from the one before us. In the Roberts case the defendant was charged with escape, but subsequently the State sought leave to amend the information to assert a violation of “sec. 121 of ch. 108, Ill. Rev. Stat.,” which provides for a mandatory consecutive sentence in the event of conviction. While there was a written waiver of indictment, the record did not indicate that any explanation was given by the court of the right of indictment by grand jury. Moreover, other questions were raised both with regard to a different offense for the same conduct with a mandatory consecutive penalty and with regard to an inference of plea bargaining not clear from the record. The court said (5 Ill.App.3d 840, 843): “A waiver of the right to indictment by a grand jury, particularly in view of the amended information charging an offense mandating an enhanced penalty, cannot be predicated upon such inference.” While the court found that there had not been sufficient compliance with Rule 401, the facts are not apposite to the present case, and the element of an enhanced mandatory penalty no doubt induced a more cautious treatment of Rule 401 than is required under the straight-forward facts we consider here involving a simple burglary.

The cited case of People v. Culbert, 69 Ill.App.2d 162, a decision of this court, has no similarity to the case at bar. There the charge was indecent liberties and the defendant was without counsel and clearly did not understand, nor was he informed by the court as to the significance of a waiver of his right to indictment by a grand jury. The nature of the case indicated a possible strategic difference between indictment, which would consider the credibility of the complaining witness, and information, which takes such credibility for granted, but the defendant merely stated he would leave it up to the judge which course the prosecution should pursue. The danger of prejudice to the defendant by a waiver of indictment was very real in that case. It is a fiction here.

The recent case of People v. Avery, 16 Ill.App.3d 986, also cited by defendant, we do not find persuasive. There the defendant’s response to the admonition under Rule 401 showed a misunderstanding as to the nature of the right to indictment, and the court did not enlighten the defendant. Moreover, there were also deficiencies as to Rule 402, and the court’s remarks indicated an assumption that the defendant wished to plead guilty before he actually did so. We do not consider the facts of that case to be apposite to the one before us.

As to the case of People v. Schyska (3rd Dist.), 14 Ill.App.3d 557, referred to by defendant, we can only say that we do not agree with the conclusion therein reached, and we believe it is not in keeping with the philosophy of the supreme court in Dudley, to the effect that procedural errors of this sort (errors where the information as to minimum and maximum sentence and evidence setting forth the nature of the charge was given immediately after waiver of indictment and immediately before the guilty plea, rather than immediately before the waiver of indictment) do not justify a reversal of the conviction where no prejudice is shown to the defendant by such error. In the Schyska case the court remarked (14 Ill.App.3d 557, 560):

“As a consequence, because of the nature of the Rules, even though ice may he privately persuaded that the defendant knows very clearly of the minimum and maximum sentences, and could, if he chose, withdraw the waiver of indictment, we believe we are not privileged to disregard the specific injunction that the court shall not permit a waiver of indictment by a defendant unless the court has informed defendant of the minimum and maximum sentences prescribed by law.” (Emphasis added.)

Obviously, the court was not free from doubt in this case but accepted the narrower viewpoint because it believed the rule called for literal compliance. The Dudley case and the case of People v. Krantz, 58 Ill.2d 187, seem to dispense us from such literal compliance with the supreme court rules governing guilty pleas where no prejudice from a less strict application is shown.

In the case before us there is no error apparent in the record except the highly technical point that the defendant was not admonished as to the minimum and maximum sentence for burglary and admonished as to the nature of the charge immediately before instead of immediately after indictment was waived (that is, just prior to accepting his guilty plea). At the time of his guilty plea, although only 18, the defendant had been charged with some 82 burglaries and found to be involved in at least 15 (the defendant remarked that he had been charged with 82 burglaries “but they only proved 15”). We may assume that the defendant had been previously admonished at least informally as to the possible sentencing for burglary more than once and was well aware of the nature of the charge of burglary. In any event, he was thoroughly informed in the trial court as to the nature of the charge, before he pleaded guilty to this particular burglary, and he knew exactly what conduct the charge was based on. Obviously, then, real justice was not denied by the error in procedure which the defendant complains of. He came into court with his attorney, after consulting with him, intending to do just what he in fact did — waive indictment and plead guilty to the information. His clear-cut, detailed confession to the police was already on file telling exactly how he committed the burglary, and there was no claim that the confession was not voluntary. Under these circumstances there was no point in requiring a grand jury to indict the defendant. It would certainly “[exalt] form over substance” as was said in Page (38 Ikll.2d 611, 616) to reverse the defendant’s conviction on the technicality he now raises as to his waiver of indictment.

We find no error in the record and the judgment of the circuit court of Winnebago County is affirmed.

Judgment affirmed.

T. MORAN and DIXON, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Carrie Jean Heral, Defendant-Appellant.
    (No. 73-284;
    Second District (2nd Division)
    February 7, 1975.

      Ralph Ruebner and Adam Lutynski, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz, of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

Defendant was indicted on August 29, 1972, for murder by suffocation of a 14-month-old child. Pursuant to motion, a hearing on defendant’s competency to stand trial was held on September 7, 1972, at which hearing defendant was found competent to stand trial. Pursuant to plea negotiations, defendant plead guilty to murder on December 7, 1972, and was sentenced by the Circuit Court of Winnebago County to 14 to 20 years in prison, said sentence having been agreed upon in the plea negotiations. Defendant now appeals on the grounds that the trial court improperly accepted her guilty plea.

On August 2, 1972, the defendant, Carrie Jean Heral, age 19, went to see Chaplain Frank Mayer at the Rockford Memorial Hospital and told him that she was involved in the death of 14-month-old Rodney Collison. The chaplain got Miss Heral’s permission to call the Rockford Police Department. Subsequently, two policewomen came to the hospital, informed Miss Heral of her constitutional rights, and took her to the police station where she gave a statement indicating that she had suffocated the Collison child in his bed at approximately 1:30 A.M. on August 2,1972.

Defendant had a prior history of mental problems, involving, among other things, several attempted suicides. While in the county jail subsequent to her arrest in the matter at hand, defendant twice attempted suicide.

Psychiatric testimony adduced at the competency hearing on September 7, 1972, indicated that Miss Heral did have a background of psychological problems, but that she was competent to stand trial. Subsequently, Miss Heral plead guilty to murder.

The issues on appeal are:

I. Did the trial court commit reversible error in accepting defendant’s guilty plea without first determining that she was competent to plead guilty?
II. Did the trial court adequately inform the defendant of the nature of the charge against her in accepting her guilty plea?
III. Did the trial court commit reversible error in not informing the defendant of the affirmative defense of insanity and determining that she understood it, and voluntarily and knowingly waived it, before accepting her guilty plea?

I.

On appeal, defendant argues that the fact that she was found competent to stand trial does not mean that she was also competent to plead guilty. A finding of fitness to stand trial indicates that the defendant is able to understand the nature and purpose of the proceedings against him and to assist in his defense. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—1.) Defendant argues that fitness to enter a guilty plea requires a higher standard of competence because “pleading guilty is a higher form of activity than standing understandingly mute.” Defendant is mistaken in interpreting competence to stand trial to mean simply that defendant is capable of being “understandingly mute.” Competence to stand trial also involves a defendant’s being capable of assisting in his defense, an active role rather than simply a passive one.

In Westbrook v. Arizona, 384 U.S. 150, 16 L.Ed.2d 429 86 S.Ct. 1320, which defendant cites as authority for her argument here, the United States Supreme Court held that a determination that the accused was fit to stand trial was not also a determination that he was capable of waiving his right to counsel and conducting his own defense. That case did not involve a defendant who plead guilty, but one who plead not guilty and conducted his own defense. In the instant case, the defendant was represented by counsel throughout the proceedings against her. The constitutional right Westbrook was concerned with, the right to counsel, was taken full advantage of in the present case. In addition, there is no indication in the record that defense counsel here did not give his client full and complete representation.

In Withers v. People, 23 Ill.2d 131, the defendant argued that he was not found competent at the time he entered his guilty pleas. Holding against the defendant, the supreme court applied the test for fitness to stand trial, holding at page 135 that “[i]f the defendant does understand the nature and object of the charges against him and can, in co-operation with his counsel, conduct his defense in a rational and reasonable manner, then he is mentally competent to stand trial although upon other subjects his mind may be unsound.” Defendant here does not contend that there was error in finding her competent to stand trial. Thus, defendant’s competence to plead guilty was established.

People v. McElroy, 125 Ill.App.2d 237, 243, states: “While a defendant may possess a sociopathic personality and suffer from psychological and social disturbances, these circumstances without more are not sufficient to raise a bona fide doubt as to his competence.” McElroy also treated the test for competence at a guilty plea the same as the test for competence to stand trial.

II.

Defendant claims, secondly, that the trial judge committed reversible error in that he did not determine that she understood the nature of the charge against her in violation of Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402). She bases this argument on the fact that at the guilty plea the judge did not inquire into whether defendant had the requisite mental state to be guilty of murder, i.e., intent to kill or do great bodily harm. (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 1.) The judge asked the defendant if she understood that she was being charged with murder in that she suffocated the Collison child and the defendant indicated that she did understand.

Rule 402 requires only substantial compliance with its provisions. “Also, the entire record may be considered in determining whether or not there was an understanding by the accused of the nature of the charge.” (People v. Krantz (1974), 58 Ill.2d 187, 192, 317 N.E.2d 559, 562.) The supreme court in Krantz cited with approval People v. Mims, 42 Ill.2d 441, which affirmed a guilty plea conviction though the trial court made no formal inquiry as to whether the defendant understood the nature of the charge. In Mims, the supreme court said at page 444: “The recital of the anticipated testimony of the witnesses for the prosecution, in the presence of the defendant and his attorneys, without protest and indeed with acquiescence, demonstrates to our satisfaction that the defendant’s conduct falls within the charge to which he pleaded guilty.” In the instant case, the assistant State’s attorney explained in depth what the evidence for the People would show. Miss Heral specifically indicated to the trial court that she had no objection to the prosecutor’s statement.

The trial court in Krantz simply asked the defendant if he understood that he was being charged with forgery. The trial court in Mims did not even ask the defendant if he understood the nature of the charge. In the case at hand, the trial court did ask Miss Heral if she understood that she was being charged with murder in that she killed Rodney Collison by suffocation. The trial court was more diligent here than in either of the above two cases. Looking at the entire record, which included a detailed statement of what the evidence would be at trial, the defendant here was adequately informed of the nature of the charge against her.

Neither Rule 402 nor any constitutional provision “* * * requires each element of an offense be explained to a defendant. Rather, in our view, the record as a whole should disclose that the defendant has been advised of the ‘essence, general character, kind or sort’ of the offense to the extent that the particular defendant before the court deciding on the options available to him has a common understanding of the nature of the charge.” (People v. Diaz (1973), 15 Ill.App.3d 280, 283.) The guilty plea in Diaz was upheld even though the defendant there indicated his understanding through an interpreter (he only spoke Spanish) and though the trial court did not personally and directly inform the defendant of the unreasonable self-defense aspect of the voluntary manslaughter charge to which he was pleading guilty. “The necessary information and tire defendant’s understanding where established by the whole record, however, which included the State’s Attor-. ney’s colloquy with the court in the presence of the defendant and interpreted to him, the statement of the plea agreement, the paraphrasing of the indictment, defendant’s response that he understood the value of the charge, and defendant’s own statement about his lack of knowledge of the law in regard to defending himself at the time he committed the act.” (Diaz, at 284.) The record in the instant case indicates the presence of all the above elements except for the interpreter in Diaz and the last element concerning lack of knowledge. In addition, the record here. con-, tains testimony of two psychiatrists that Miss Heral understood the nature of the charges against her. ,

In Krantz, where the trial court simply asked the defendant if he understood that he was charged with forgery and the defendant indicated understanding, the supreme court held at page 193: “‘[T]he remarks and advice of the court must be read in a practical and realistic manner. The essentials have been complied with if an ordinary person in the circumstances of the accused would understand them as conveying, the information required by the rule’ (People v. Doyle, 20 Ill.2d 163, 167; * * *.)” The case at hand does not even better than the “ordinary person” standard mentioned above. There is úncóntroverted evidence in the record that this specific defendant, Miss Heral, understood the nature of the charges against her.

III.

Defendant’s third allegation of reversible- error is the failure of the trial court to inform the defendant of a possible insanity defense to the. murder charge before accepting her guilty plea. There is no evidence in the record which indicates that Miss Heral was unaware of a possible insanity defense. However, there is some evidence in the record which indicates that she was aware of such a defense.

At the guilty plea, the State’s attorney offered several documents into evidence, among them psychiatrists’ reports, one of which indicated possible insanity by the defendant at the time of the killing, and others, which referred to such a possibility but discounted it. The trial court. asked defense counsel, Mr. Vella, if he was familiar with these documents.

“Mr. Vella: Your Honor, I received copies of the exhibits at a prior time, and I have gone over all of them and I have copies in my file. I have no objection to their being admitted in evidence at this time.
The Court: All right. You have discussed the contents of these documents with your client?
Mr. Vella: Your Honor, my client is aware of all these documents. She is aware of the result of these documents.
The Court: All right. Now, is there any objection that you or your client has to the introduction of these documents and the Court considering them?
Mr. Vella: No objection whatsoever, Your Honor.”

The record thus indicates that Miss Heral knew what was in the psychiatrists’ reports and her counsel also knew. It is logical to presume from this that the possibility of an insanity defense was made known to the defendant but she discounted it. Certainly she must have had the advice of counsel on the matter. In any event, incompetence of counsel is not raised here as it undoubtedly would have been had counsel not consulted with his client regarding an insanity defense.

Defendant argues in reference to an insanity defense that: “Until a defendant declares an understanding of that fact and waives the possibility of pursuing the affirmative defense a trial court may not accept a guilty plea.” No authority is cited for that argument, and assuming, arguendo, its validity, referring to the guilty plea proceedings quoted above, it seems defendant did understand and waive the assertion of an insanity defense.

Given the directive in Krantz to consider the entire record, there is evidence which indicates that defendant was aware of a possible insanity defense. For this reason, it is not necessary that we decide whether, where applicable, a defendant pleading guilty to murder must be informed by the court of a possible insanity defense.

We hold that for the reasons given, the trial court did not err in accepting defendant’s guilty plea.

Judgment affirmed.

RECHENMACHER, P. J., and T. MORAN, J., concur.


author: Mr. JUSTICE GUILD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Leff, Defendant-Appellant.
    (No. 73-374;
    Second District (1st Division)
    February 10, 1975.
    Frank Wesolowski, Jr., Public Defender, of Wheaton (Robert H. Heise, Assistant Public Defender, of counsel), for appellant.
    John J. Bowman, State’s Attorney, of Wheaton (Ralph J. Gust, Jr., Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. JUSTICE GUILD.